{"id":43318,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/asset-purchase-and-sale-agreement-caldera-systems-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"asset-purchase-and-sale-agreement-caldera-systems-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/asset-purchase-and-sale-agreement-caldera-systems-inc-and.html","title":{"rendered":"Asset Purchase and Sale Agreement &#8211; Caldera Systems Inc. and Caldera Inc."},"content":{"rendered":"<pre>\n                       ASSET PURCHASE AND SALE AGREEMENT\n\n     THIS ASSET PURCHASE AND SALE AGREEMENT (this 'Agreement') is made and\nentered into this 1st day of September 1998, by and between CALDERA SYSTEMS,\nINC., a Utah corporation ('Purchaser') and CALDERA, INC., a Utah corporation\n('Seller').\n\n                                    RECITALS\n\n     A.   Seller is in the business of developing, marketing, licensing, selling\nand distributing Linux computer software and other software, products and\nservices relating to Linux (the 'Business'). Seller desires to sell to Purchaser\nall of Seller's assets used in or relating to the Business.\n\n     B.   All of the assets Seller uses in or which relate to the Business\nconsist of the following, which shall hereinafter collectively be designated the\n'Assets':\n\n          (i)   Accounts Receivable. all accounts receivable of Seller as of\n     September 1, 1998, identified in and that will be the subject of the Bill\n     of Sale set forth in Exhibit 'A' attached hereto,\n\n          (ii)  Inventory. the items of inventory identified in and that will be\n     the subject of the Bill of Sale set forth in Exhibit 'A' attached hereto,\n\n          (iii) Tangible Personal Property. the items of tangible personal\n     property in and that will be the subject of the Bill of Sale set forth in\n     Exhibit 'A' attached hereto,\n\n          (iv)  Customer Lists, Etc. all of Seller's customer lists and\n     addresses of Seller's past, present and potential customers which will be\n     the subject of the Bill of Sale set forth in Exhibit 'A' attached hereto,\n\n          (v)   Contracts. certain rights, services and contractual obligations\n     under the contracts which were used by the Business and which Seller has\n     entered into identified in and that will be the subject of the Contracts\n     Assignment and Assumption Agreement set forth in Exhibit 'B' attached\n     hereto.\n\n          (vi)  Trademarks. all right, title and interest of Seller in and to\n     the trademarks, service marks, trade names, logos, and product names and\n     the\n   2\n     goodwill of the business associated therewith (the 'Trademarks') as\n     identified in and that will be subject of the Trademarks Assignment\n     Agreement set forth in Exhibit 'C' attached hereto,\n\n          (vii)     Copyrights.  all right, title and interest of Seller in and\n     to the copyrights, copyright applications, and copyright registrations (the\n     'Copyrights') identified in and what will be subject of the Copyright\n     Assignment Agreement set forth in exhibit 'D' attached hereto,\n\n          (viii)    Patents.  all right, title and interest of Seller in and to\n     the patents and patent applications (the 'Patents') identified in and that\n     will be subject of the Patent Assignment Agreement set forth in Exhibit 'E'\n     attached hereto,\n\n          (ix)      Intellectual Property.  any other intellectual property used\n     in or relating to the Business (other than the Trademarks, Copyrights and\n     Patents) of Seller including, without limitation, all trade secrets,\n     proprietary technology, and confidential information, (the 'Intellectual\n     Property') identified in and that will be subject of the Intellectual\n     Property Assignment Agreement set forth in Exhibit 'F' attached hereto, and\n\n          (x)       Numbers, Permits and Licenses.  Seller's telephone and fax\n     numbers, permits and business licenses as identified in Exhibit 'G'\n     attached hereto.\n\n     C.   Purchaser desires to purchase the Assets from Seller and Seller\ndesires to sell the Assets to Purchaser, all as provided in this Agreement.\n\n     NOW, THEREFORE, in consideration of the mutual covenants, agreements,\nrepresentations and warranties contained herein and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the\nparties agree as follows:\n\n                         SECTION 1 -- TERMS OF PURCHASE\n\n     1.1  Purchase of Assets.  In reliance on the representations and warranties\ncontained herein and in consideration of the purchase price as set forth in\nsection 1.3 hereof and subject to all other terms and conditions hereof, at the\nClosing (as defined in section 2.1), and effective as of the Effective Date (as\ndefined in Section 2.1), Purchaser shall purchase and accept, and Seller shall\nsell, assign, transfer, convey and deliver to Purchaser, all of Seller's rights,\ntitles\n\n\n\n                                       2\n   3\nand interests in and to all the Assets (defined in Recital Paragraph B, above).\n\n     1.2  No Assumption of Obligations, Liabilities and Indebtedness.\n\n          (a)  Except for those obligations assumed pursuant to the Contracts\nAssignment and Assumption Agreement (see Exhibit 'B' attached hereto),\nPurchaser shall not assume or in any way become liable for any obligations or\nliabilities of or relating to the Assets or Seller.\n\n          (b)  Except as expressly set forth in Section 1.2(a) hereof,\nPurchaser does not by this Agreement, or otherwise, assume, become liable for\nor agree to pay any obligation, liability or indebtedness of Seller which may\nnow exist or which may arise in the future, whether associated with the Assets,\nthe Business, Seller or otherwise.\n\n          (c)  Any obligations, liabilities or indebtedness of Seller including,\nbut not limited to, contingent liabilities, such as, but not limited to,\nliabilities relating to patent, trademark, copyright or other business\ninfringement, environmental or hazardous waste liability, tort liability,\nemployment discrimination, errors and omissions liability, employee payroll and\nemployee benefits liability, liability under employment agreements or pertaining\nto covenants not to compete, obligations arising out of or relating to pension\nplans and other retirement plans, and federal, state or local taxes, shall\nremain the sole and separate responsibility of Seller, and Seller hereby agrees\nto indemnify, defend and hold Purchaser harmless from and against any and all\nsuch obligations, liabilities or indebtedness.\n\n          (d)  Seller shall not assume or in any way become liable for any\nobligations or liabilities of Purchaser relating to the Assets, the Business or\nPurchaser that arise from the business and operations of Purchaser and that\noccur in whole from and after the Closing.\n\n     1.3  Purchase Price and Allocation of Purchase Price. Subject to upward\nadjustment as provided in this Section 1.3, the purchase price for the Assets\n(the 'Purchase Price') shall be Fifteen Million and no\/100 Dollars\n($15,000,000.00) and the Purchase Price shall be allocated to the Assets as set\nforth on Exhibit 'H' attached hereto. It is anticipated that the Purchaser will\nobtain an appraisal or valuation of the Assets, as of the date hereof, for tax,\naccounting or other purposes. In the event such an appraisal or valuation is\nobtained and the fair market value of the Assets, as of the date hereof, is\ngreater than the Purchase Price, then the Purchase Price shall be increased to\nthe fair market value of the Assets; provided, however, any such appraisal or\nvaluation must be obtained before December 31, 1998, and any increase in the\nPurchase Price shall not be due and payable until the later of (i) December 31,\n1998\n\n\n                                       3\n   4\n\nor (ii) sixty days after the receipt by Purchaser of said appraisal or\nvaluation.\n\n        1.4     Payment of Purchase Price. The Purchase Price shall be paid by\nPurchaser by:\n\n                (a) delivering to the Seller a promissory note substantially in\nthe form of Exhibit 'I' attached hereto, made by the Purchaser to the order of\nthe Seller in the original principal amount of $14,963,826 ($15,000,000 less\n$36,174 of liabilities assumed as set forth in Section 1.4(b)) (the 'Promissory\nNote'), together with a Security Agreement substantially in the form of Exhibit\n'J' attached hereto; and\n\n                (b) assuming liabilities in the amount of $36,174 as identified\nin the Contracts Assignment and Assumption Agreement attached hereto as Exhibit\n'B'.\n\n        1.5     Taxes. The Purchase Price shall be exclusive of any sales or\nsimilar taxes that may be imposed. Seller shall be solely responsible for any\nsales or similar taxes that may be imposed on the purchase and sale of the\nAssets contemplated by this Agreement.\n\n        1.6     Documentation of Sale of Accounts Receivable, Inventory and\nTangible Personal Property. At the Closing Seller shall execute and deliver to\nPurchaser the Bill of Sale attached hereto as Exhibit 'A' (the 'Bill of Sale')\nto evidence and effect the transfer of the accounts receivable, inventory and\nother tangible personal property identified in Exhibit 'A'.\n\n        1.7     Documentation of Assignment and Assumption of Contracts. At the\nClosing Seller and Purchaser shall execute and deliver to the other the\nContracts Assignment and Assumption Agreement attached hereto as Exhibit 'B' to\nevidence and effect the assignment and assumption of said contracts.\n\n        1.8     Documentation of Assignment of Trademarks. At the Closing Seller\nand Purchaser shall execute and deliver to the other the Trademarks Assignment\nAgreement attached hereto as Exhibit 'C' to evidence and effect the assignment\nof the Trademarks.\n\n        1.9     Documentation of Assignment of Copyrights. At the Closing Seller\nand Purchaser shall execute and deliver to the other the Copyright Assignment\nAgreement attached hereto as Exhibit 'D' to evidence and effect the assignment\nof the Copyrights.\n\n        1.10    Documentation of Assignment of Patents. At the Closing Seller\nand Purchaser shall execute and deliver to the other the Patent Assignment\nAgreement attached hereto as Exhibit 'E' to evidence and effect the assignment\nof the Patents.\n\n\n                                       4\n   5\n          1.11  Documentation of Assignment of Intellectual Property.  At the\nClosing Seller and Purchaser shall execute and deliver to the other the\nIntellectual Property Assignment Agreement attached hereto as Exhibit 'F' to\nevidence and effect the assignment of the Intellectual Property. Seller agrees\nto execute any and all such further or other documents that Purchaser prepares\nwhich are reasonably necessary to further evidence or effect the purpose and\nintention of this Agreement.\n\n          1.12  Documentation of Assignment of Numbers, Permits and Licenses.\nAt the Closing Seller shall assign and transfer to Purchaser the telephone and\nfax numbers, permits and business licenses as identified in Exhibit 'G'\nattached hereto.\n\n          1.13  Bulk Transfer Compliance. Purchaser hereby waives compliance by\nSeller with the provisions of the Utah or other applicable 'bulk transfer'\nstatutes. Seller hereby indemnifies and agrees to defend and hold Purchaser\nharmless from and against any liability or obligation to creditors of Seller or\nto others that may result from failure to comply with the Utah or other\napplicable 'bulk transfer' laws in connection with the purchase and sale of the\nAssets.\n\n                            SECTION 2 - THE CLOSING\n\n          2.1  Closing.  The closing of the transaction contemplated by this\nAgreement (the 'Closing') shall be held at the office of Seller in Orem, Utah,\nat 11:00 a.m. local time, on September 1, 1998, or at such other time or place\nas the parties may hereafter agree in writing. That date, or if the Closing is\nadvanced or postponed under this Section 2.1, then notwithstanding the date to\nwhich it is advanced or postponed, the effective date of the Closing shall be\n12:01 a.m. on September 1, 1998, and is in this Agreement designated the\n'Effective Date.'\n\n          2.2  Events at the Closing.  The following events shall occur at the\nClosing, each of which shall be a condition precedent to each of the others and\nall of which shall be deemed to have occurred concurrently:\n\n\n                             Seller's Deliverables\n\n               (a)  Seller shall deliver possession of its business premises to\npurchaser and in connection therewith, shall provide Purchaser with keys to the\nLeasehold Premises, all as shall be allowed and agreed by Seller's Landlord;\n\n               (b)  Seller shall execute and deliver to Purchaser the Bill of\nSale (see Exhibit 'A' attached hereto);\n\n               (c)  Seller shall execute and deliver to Purchaser the Contracts\nAssignment and Assumption Agreement (see Exhibit 'B' attached hereto);\n\n\n\n                                       5\n   6\n                (d) Seller shall execute and deliver to Purchaser the\nTrademarks Assignment Agreement (see Exhibit 'C' attached hereto);\n\n                (e) Seller shall execute and deliver to Purchaser the\nCopyrights Assignment Agreement (see Exhibit 'D' attached hereto);\n\n                (f) Seller shall execute and deliver to Purchaser the\nPatent Assignment Agreement (see Exhibit 'E' attached hereto);\n\n                (g) Seller shall execute and deliver to Purchaser the\nIntellectual Property Assignment Agreement (see Exhibit 'F' attached hereto);\n\n                (h) Seller shall execute and deliver to Purchaser an assignment\nand transfer of the telephone and fax numbers, permits and business licenses as\nidentified in Exhibit  'G' attached hereto;\n\n                (i) Seller shall execute and deliver to Purchaser such other\ndocuments as may be reasonably required by Purchaser to evidence Seller's\ncompliance with any covenant and condition herein set forth or to complete the\ntransactions herein contemplated;\n\n                            PURCHASER'S DELIVERABLES\n\n                (j) Purchaser shall execute and deliver to Seller the\nPromissory Note (see Exhibit 'I' attached hereto);\n\n                (k) Purchaser shall execute and deliver to Seller the\nSecurity Agreement (see Exhibit 'J' attached hereto);\n\n                (l) Purchaser shall execute and deliver to Seller a copy of the\nContracts Assignment and Assumption Agreement (see Exhibit 'B' attached hereto);\n\n                (m) Purchaser shall execute and deliver to Seller a copy of the\nTrademarks Assignment Agreement (see Exhibit 'C' attached hereto);\n\n                (n) Purchaser shall execute and deliver to Seller a copy of the\nCopyrights Assignment Agreement (see Exhibit 'D' attached hereto);\n\n                (o) Purchaser shall execute and deliver to Seller the Patent\nAssignment Agreement (see Exhibit 'E' attached hereto);\n\n                (p) Purchaser shall execute and deliver to Seller the\nIntellectual Property Assignment Agreement (see Exhibit 'F'\n\n                                       6\n   7\nattached hereto);\n\n          (q)  Purchaser shall execute and deliver to Seller an acceptance of\nthe assignment and transfer of the telephone and fax numbers, permits and\nbusiness licenses as identified in Exhibit 'G' attached hereto;\n\n          (r)  Purchaser shall execute and deliver to Seller such other\ndocuments as may be reasonably required by Seller to evidence Purchaser's\ncompliance with any covenant and condition herein set forth or to complete the\ntransactions herein contemplated.\n\n                   SECTION 3 - REPRESENTATIONS AND WARRANTIES\n\n     3.1  Representations and Warranties of Seller. Except as set forth in the\nSchedule of Seller's Exceptions in Exhibit 'K' attached hereto, Seller\nrepresents and warrants to Purchaser as follows:\n\n          (a)  Sale of All Assets. By this Agreement and the instruments\ncontemplated hereby, Seller is transferring to Purchaser all of the assets of\nSeller that are used in the Business.\n\n          (b)  Title to Assets; Liens. Seller has good and marketable title to\nthe Assets and none of the Assets are subject to any mortgage, pledge, lien,\nsecurity interest, lease, charge, claim or encumbrance. Neither the Seller nor\nany of Seller's affiliates use any asset, other than the Assets, in the\nBusiness.\n\n          (c)  Litigation. There is no material suit, action, litigation\nor other proceeding or governmental or administrative investigation or inquiry\npending or threatened against Seller, the Business, and\/or the Assets, which, if\ndecided adversely to the interests of Seller, would prevent or prohibit Seller\nfrom transferring the Assets, free and clear from any security interests,\nliens, charges, claims or other encumbrances of any nature whatsoever or from\notherwise complying in full with the provisions of this Agreement.\n\n          (d)  Authorization. Seller is a corporation duly organized, validly\nexisting and in good standing under the laws of the State of Utah. Seller has\nall the requisite corporate and legal power and authority to own, lease and\noperate the Assets as currently owned, leased and operated. Seller is duly\nlicensed, authorized and qualified to transact business and is in good standing\nin Utah.\n\n          (e)  Execution and Enforceability. This Agreement, the Bill of Sale,\nthe Contracts Assignment and Assumption Agreement, Trademarks Assignment\nAgreement, Copyrights Assignment Agreement, Patent Assignment Agreement, the\nIntellectual Property Assignment Agreement (see Exhibits 'A'\n\n\n                                       7\n   8\nthrough 'F', respectively) and any other document required to be executed by\nSeller at the Closing, will, when duly executed and delivered by Seller,\nconstitute valid and binding obligations of Seller, enforceable against Seller\nin accordance with their respective terms.\n\n          (f)  Seller's Records. In contemplation of this Agreement, Purchaser\nhas had access to Seller's files, documents and business records. Seller agrees\nto keep and make available to Seller and its representatives during business\nhours with reasonable notice, all of its files, documents and business records\nrelating to any of its present customers and past customers within the last\nthree (3) years (the 'Records'). Seller may examine and make copies of the\nRecords, provided Seller agrees to and Seller hereby does agree to keep\nconfidential all confidential and proprietary information and trade secrets, if\nany, in the Records. Nothing in this Section 3.1(f) shall require Seller to\nretain any of the Records beyond the period for which they must be maintained\npursuant to applicable tax laws and regulations.\n\n     3.2  Representations and Warranties of Purchaser. Except as set forth in\nthe Schedule of Purchaser's Exceptions in Exhibit 'L' attached hereto, Purchaser\nrepresents and warrants to Seller as follows:\n\n          (a)  Authorization. Purchaser is a corporation, duly organized,\nvalidly existing and in good standing under the laws of the State of Utah and\nhas all necessary corporate power and corporate authority to consummate the\ntransactions contemplated herein. This Agreement, and the transactions\ncontemplated herein, have been duly authorized by all necessary corporate action\non the part of Purchaser.\n\n          (b)  Execution and Enforceability. This Agreement and any other\ndocuments required to be executed by Purchaser at the Closing will, when duly\nexecuted and delivered by Purchaser constitute valid and binding obligations of\nPurchaser, enforceable against Purchaser in accordance with their respective\nterms.\n\n          (c)  Compliance with Other Instruments; Consents. Purchase is not in\nmaterial violation of any material agreement, instrument, judgment, decree or\norder applicable to Purchaser, and to Purchaser's best knowledge and belief, of\nany material statute, rule or governmental regulation applicable to Purchaser.\nThe execution, delivery and performance of this Agreement by Purchaser and the\ntransactions contemplated hereby will not result in any material violation of,\nbe in conflict with or constitute a material default under any such material\nagreement, instrument, judgment, decree or order or, to the best knowledge and\nbelief of Purchaser, of any such material statute, rule or governmental\nregulation. No consent of any vendor, lessor, lender or creditor of Purchaser,\nor any other person, is\n\n                                       8\n   9\nnecessary in order for Purchaser to consummate this Agreement or the\ntransactions contemplated hereby in accordance with all of the provisions herein\ncontained.\n\n                 SECTION 4 -- COVENANTS OF SELLER AND PURCHASER\n\n     4.1  Covenants of Seller.  Seller hereby covenants to and agrees with\nPurchaser that:\n\n          (a)  Maintenance of Assets. Prior to the Closing, Seller shall\nmaintain the Assets in customary repair, order and condition, and will maintain\ninsurance thereon in such amounts and of such kinds as is and currently in\neffect.\n\n          (b)  Maintenance of Free and Clear Title.  Prior to the Closing,\nSeller shall not mortgage, pledge or subject to any lien, charge, claim or\nencumbrance any of the Assets or transfer, convey or lease any of the Assets or\nany of Seller's rights, titles or interests therein, outside of the ordinary\ncourse of business.\n\n          (c)  Conduct of the Business.  Prior to the Closing, Seller shall\nconduct the activities of the Business in the ordinary, normal and customary\ncourse and manner, keep proper business and accounting records, and, both before\nand at all times after the Closing, use Seller's best efforts to preserve the\nBusiness and its material customers intact and preserve for and make available\nto Purchaser all of Seller's customers and the goodwill of the Business and the\ngoodwill of the Clients, customers, distributors and others having business\nmaterial relationships with the Business.\n\n          (d)  Representations and Warranties True at Closing.  If any\nrepresentation or warranty of Seller set forth in this Agreement becomes\ninaccurate in any material respect at or before the Closing, Seller shall\nimmediately inform Purchaser in writing of the particulars in which any such\nwarranty or representation is no longer accurate. Despite such disclosure by\nSeller, any such material inaccuracy shall constitute a failure of the\nconditions precedent to the obligations of Purchaser as set forth in Section 6.1\nhereof, and Purchaser shall have the right and option either to waive such\ncondition or to terminate this Agreement.\n\n     4.2  Covenants of Purchaser.  Purchaser hereby covenants to and agrees with\nSeller that if any representation or warranty of Purchaser set forth in this\nAgreement becomes inaccurate in any material respect at or before the Closing,\nPurchaser shall immediately inform Seller in writing of the particulars in which\nany such warranty or representation is no longer accurate. Despite such\ndisclosure by Purchaser, any such material inaccuracy shall constitute a failure\nof the conditions precedent to the obligations of Seller as set forth in Section\n\n\n\n                                       9\n   10\n6.2 hereof, and Seller shall have the right and option either to waive such\ncondition or to terminate this Agreement.\n\n                         SECTION 5 - SPECIAL PROVISIONS\n\n     5.1  Seller's Employees. All employees of Seller shall be terminated, as of\nor before the Effective Date. Purchaser shall not be responsible for, and Seller\nagrees to indemnify, defend and hold harmless Purchaser from and against any and\nall claims, losses, damages, fees, costs or liabilities that arise or accrue as\na direct or indirect result of or in connection with Seller's prior employment\nof or Seller's termination of the employment of Seller's Employees, including,\nbut not limited to, any claims or wrongful or unlawful termination or discharge\nthat are threatened or brought by Seller's Employees. Nothing contained herein\nshall be construed as an agreement by Purchaser to provide employment for any of\nSeller's Employees or, should Purchaser determine to employ any of Seller's\nEmployees after the Effective Date, to continue the employment of any Seller's\nEmployees to the extent Purchaser determines, for any reason, that such employee\ndoes not meet Purchaser's standards of performance or productivity or that such\nemployee is no longer needed or desired as an employee of Purchaser.\n\n                  SECTION 6 - CONDITIONS PRECEDENT TO CLOSING\n\n     6.1  Conditions Precedent to the Obligations of Purchaser. The obligation\nof Purchaser to purchase the Assets and to consummate the transactions\ncontemplated hereby is subject to fulfillment by Seller prior to or at the\nClosing of all of the conditions set forth in this Section 6.1. Purchaser may\nwaive any or all of said conditions in whole or in part without prior notice;\nprovided, however, that no such waiver of a condition shall constitute a waiver\nby Purchaser of any other condition or of its other rights or remedies, at law\nor in equity.\n\n          (a)  Seller's Representations and Warranties True at Closing. All\nrepresentations and warranties of Seller contained in this Agreement, the\nContracts Assignment and Assumption Agreement, Trademarks Assignment Agreement,\nCopyrights Assignment Agreement, Patent Assignment Agreement, the Intellectual\nProperty Assignment Agreement (see Exhibits 'A' through 'F', respectively) and\nany other written document, agreement or statement to be delivered to Purchaser\nby Seller at or before Closing pursuant to this Agreement, shall be accurate in\nall material respects on and as of the Effective Date as though such\nrepresentations and warranties were made at and as of the Closing Date.\n\n          (b)  Authorization. All material proceedings required to be taken and\nall consents required to be obtained in connection with the transactions\ncontemplated by this Agreement, shall have been taken, completed or obtained, as\nthe case may be, and all documents incident thereto shall be reasonably\n\n\n\n                                       10\n   11\n\nsatisfactory in form and substance to Purchaser, who shall have received\noriginals or certified or other copies of all of such documents as Seller may\nreasonably request.\n\n                (c) No Insolvency Action. No petition in bankruptcy, insolvency\nproceeding or a petition for reorganization or for the appointment of a\nreceiver or trustee shall have been filed by or against Seller.\n\n        6.2     Conditions Precedent to the Obligations of Seller. All\nobligations of Seller under this Agreement are subject to fulfillment by\nPurchaser prior to or at the Closing of all of the conditions set forth in this\nSection 6.2. Seller may waive any or all of said conditions in whole or in part\nwithout prior notice; provided, however, that no such waiver of a condition\nshall constitute a waiver by Seller of any other condition or of Seller's other\nrights or remedies, at law or in equity.\n\n                (a) Purchaser's Representations and Warranties True at Closing.\nAll representations and warranties of Purchaser contained in this Agreement or\nin any written statement delivered to Seller by Purchaser pursuant to this\nAgreement shall be true and correct in all material respects on and as of the\nEffective Date as though such representation and warranties were made at and as\nof the Effective Date.\n\n                (b) Performance Agreements. Purchaser shall have performed all\nobligations and agreements and complied with all covenants and conditions\ncontained in this Agreement to be performed and complied with by Purchaser on\nor prior to the Effective Date.\n\n                (c) Authorization. All corporate and other proceedings required\nto be taken by Purchaser and all consents required to be obtained in connection\nwith the transactions contemplated by this Agreement, shall have been taken,\ncompleted or obtained, as the case may be, and all documents incident thereto\nshall be reasonably satisfactory in form and substance to Seller, who shall\nhave received originals or certified or other copies of all of such documents\nas Seller may reasonably request.\n\n                (d) No Litigation. No action or proceeding shall be pending or\nthreatened to restrain or prevent the carrying out of the transactions\ncontemplated hereby.\n\n                            SECTION 7 - TERMINATION\n\n        7.1     Right to Terminate Agreement. This Agreement may be terminated\nupon the occurrence of any of the following events:\n\n\n                                       11\n   12\n               (a)  by Purchaser, by written notice from Purchaser to Seller,\nif any of the conditions set forth in Section 6.1 hereof have not been\nfulfilled by the Closing;\n\n               (b) by Seller, by written notice from Seller to Purchaser, if\nany of the conditions set forth in Section 6.2 hereof have not been fulfilled\nby the Closing;\n\n               (c) by Seller or Purchaser, by written notice to the other, if\nthe Closing shall not have been held prior to September 30, 1998, or such later\ndate as the parties shall mutually agree in writing; or\n\n               (d) the parties shall mutually agree in writing to terminate\nthis Agreement.\n\n          7.2  Effect of Termination. Upon termination of this Agreement\npursuant to Section 7.1 hereof, all obligations of the Parties pursuant to this\nAgreement shall terminate and shall be of no further force and effect such that\nPurchaser shall have no further obligations to Seller and Seller shall have no\nfurther obligations to Purchaser, except that Purchaser shall not use and shall\nkeep confidential any and all information, customer lists, customer addresses,\nsupplier addresses, price lists, agreements, trade secrets and\/or business\nplans of Seller relating to the Business.\n\n\n                              SECTION 8 - GENERAL\n                              -------------------\n\n\n          8.1   Costs.  The parties shall each pay their own costs and expenses\n(including attorneys' fees and accountants' fees) incurred or to be incurred by\nthem in negotiating and preparing this Agreement and in closing and carrying\nout the transactions contemplated hereby.\n\n\n          8.2   Headings.  The section and other headings of this Agreement are\nincluded for purposes of convenience only, and shall not affect the\nconstruction or interpretation of any of its provisions.\n\n          8.3  Entire Agreement; Modification.  This Agreement (including the\nrecitals A through C hereof and Exhibits 'A' through 'L' attached hereto and\nthe representations and warranties set forth herein), constitute the entire\nagreement between the parties pertaining to the subject matter of the\ntransactions contemplated by this Agreement.  This Agreement supersedes all\nwritten or oral, prior and contemporaneous agreements, representations,\nwarranties and understandings of the parties with respect thereto. No\nsupplement, modification or amendment of this Agreement shall be binding unless\nexecuted in writing by the parties.\n\n          8.4  Parties in Interest.  Nothing in this Agreement, whether express\nor implied, is intended to confer any rights or\n\n\n                                       12\n   13\nremedies under or by reason of this Agreement on any persons other than the\nparties to this Agreement and their respective successors and permitted assigns,\nnor is anything in this Agreement intended to relieve or discharge the\nobligation or liability of any third persons to any party to this Agreement, nor\nshall any provision hereof give any third party any right of subrogation or\naction over or against any party to this Agreement.\n\n        8.5 Binding Effect; No Assignment. This Agreement shall be binding on\nand shall inure to the benefit of the parties and their respective legal\nrepresentatives, successors and assigns. None of the rights or obligations under\nthis Agreement of any party to this Agreement may be conveyed, transferred,\nassigned or delegated expressly, by operation of law or otherwise, without the\nprior written consent of the other party to this Agreement.\n\n        8.6 Survival of Representations and Warranties. All representations,\nwarranties, covenants and agreements of the parties contained in this Agreement\nor in any instrument or other writing provided for in this Agreement shall\nsurvive the Closing and the term of this Agreement and shall not be deemed\nmerged into any documents delivered at the Closing.\n\n        8.7 Additional Documents After the Closing. Purchaser shall after the\nClosing execute and deliver to Seller such other documents as may be reasonably\nrequired by Seller to evidence Purchaser's compliance with any covenant and\ncondition herein set forth or to complete the transactions herein contemplated.\nWithout limiting the generality of the foregoing, Purchaser shall comply with\nall reasonable requests of Seller in connection with the recordation of any\nassignments or transfers under this Agreement.\n\n        8.8 Arbitration. Any controversy or dispute arising out of or relating\nto this Agreement or its subject matter which the parties are unable to resolve\nwithin ten (10) days after written notice by one party to the other party of the\nexistence of such controversy or dispute, may be submitted to binding\narbitration by either party. If so submitted to arbitration, the matter shall be\nfinally settled by binding arbitration conducted in accordance with the current\nrules and procedures of the American Arbitration Association. Such arbitration\nshall take place in Orem, Utah. The decision by the arbitrator on any matter\nsubmitted to arbitration shall be binding and conclusive upon the parties, their\nheirs, successors and assigns, as the case may be and they shall comply with\nsuch decision in good faith. Each party hereby submits itself to the\njurisdiction of the state and federal courts within the State of Utah for the\nentry of judgment with respect to the decision of the arbitrator hereunder.\nJudgment upon the award may be entered in any state or federal court within the\nState of Utah and\/or any other court having jurisdiction. At the unilateral\noption of either party,\n\n\n                                       13\n\n   14\nthis Section 8.8 shall not apply to any claim or cause of action arising from\nany breach of Section 7.2 hereof regarding confidentiality or from any\ninfringement of intellectual property.\n\n     8.9  Notices. All notices, requests, demands and other communications made\nunder, pursuant to or in accordance with this Agreement, except for normal\nday-to-day business communications which may be made orally or in a writing sent\nby fax, regular mail or hand delivered without need for a receipt, shall be in\nwriting and shall either be delivered personally or deposited in the United\nStates mails and sent by first-class mail, certified, return receipt requested,\npostage prepaid and properly addressed as follows:\n\n          If to Purchaser, to:\n\n               Caldera Systems, Inc.\n               240 West Center Street\n               Orem, Utah 84057\n\n\n               Attention: Chief Executive Officer\n\n          If to Seller, to:\n\n               Caldera, Inc.\n               240 West Center Street\n               Orem, Utah 84057\n\n          Attention: Chief Executive Officer\n\nor to such other address or addresses as a party thereto may indicate to the\nother party in the manner provided for by this Section 8.9. Notices given by\nmail shall be deemed effective and complete forty-eight (48) hours following\nthe time of posting and mailing thereof in accordance herewith, and notices\ndelivered personally shall be deemed effective and complete at the time of the\ndelivery thereof and the obtaining of a signed receipt therefor.\n\n     8.10      Severability. Whenever possible, each provision of this\nAgreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement shall be\nprohibited or invalid under applicable law, such provision shall be ineffective\nto the extent of such prohibition or invalidity without invalidating the\nremainder of such provision or the remaining provisions of this Agreement,\nwhere the context requires, the singular shall include the plural and the\nplural shall include the singular, and any gender or the neuter gender shall\ninclude both other genders as the case may require.\n\n     8.1       Waiver. No waiver of any provision of this Agreement shall be\ndeemed or shall constitute a waiver of any\n\n\n\n                                       14\n   15\nother provision, whether or not similar, nor shall any waiver constitute a\ncontinuing waiver. No waiver shall be binding unless executed in writing by the\nparty hereto making such waiver.\n\n     8.12 Governing Law. This Agreement shall be governed in all respects by the\nlaws of the State of Utah applied to contracts made and to be fully performed\nentirely within such State between residents of such State. All disputes arising\nout of this Agreement shall be subject to the exclusive jurisdiction and venue\nof the Utah state courts of Utah County, Utah (or, if there is exclusive federal\njurisdiction, the United States District Court of Utah), and the parties consent\nto the personal and exclusive jurisdiction and venue of these courts.\n\n     8.13 Time is of the Essence. Time is of the essence in this Agreement.\n\n     IN WITNESS WHEREOF, this Agreement has been executed by the parties as of\nthe day and year first above written.\n\n     Purchaser:                    Caldera Systems, Inc.\n\n                                   By: \/s\/ RANSOM H. LOVE\n                                       ------------------\n                                       Ransom H. Love\n                                       ------------------\n\n     Seller:                       Caldera, Inc.\n\n                                   By: \/s\/ BRYAN SPARKS\n                                       ------------------\n                                       Bryan Sparks\n                                       ------------------\n\n                                       15\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6993],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9623,9622],"class_list":["post-43318","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-caldera-systems-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-planning__asset","corporate_contracts_types-planning"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43318","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43318"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43318"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43318"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43318"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}