Exhibit 2.2
Deed-Role-No.: ______________/1998
EXCALIBUR TECHNOLOGY PURCHASE AGREEMENT
dated as of November 19, 1998
between
SMS HOLDING GMBH
and
DATA I/O CORPORATION
Today this
nineteenth day of November nineteen hundred ninety eight
-19.11.1998-
Appeared before me,
Dr. Michael Bohrer,
Notary with the official seat in 80333 Munich and, the office Briennerstr.
25, in the premises Briennerstr. 22, 80333 Munich:
1. Antoine Issaverdens, born: 20.11.1941, residing at: 24 Hameau Boileau,
F-75016 Paris, identified by French Identity Card No.: CC 75266 here not acting
in his own name, but in the name of SMS Holding GmbH (HRB Ravensburg 596-W), a
German limited liability company (,,Company"), subject to the power of attorney
dated 18.11.1998. A fax copy is attached to this Deed. The original of the power
shall be sent to the Notary.
2. Dr. Thomas Schulz, born: 05.10.1963, business address: Brienner Stra(beta)e
22, 80333 Munich, here not acting in his own name, but in the name of Data I/O
Corporation, a Washington corporation (,,Data I/O"), subject to the power of
attorney dated 18.11.1998. A fax copy is attached to this Deed. The original of
the power shall be sent to the Notary.
The Appeared requested the notarization of the following declarations. They
furthermore requested this Deed to be drawn up in the English language.
EXCALIBUR TECHNOLOGY PURCHASE
AGREEMENT (,,AGREEMENT")
RECITALS
A. Data I/O desires to purchase the business and assets of Company in a series
of three transactions.
B. Company operates a business whereby it designs, develops, manufactures, sells
and distributes devices or systems used to program programmable integrated
circuits (the ,,IC Programmer Products Business").
C. In the first transaction, prior to the execution of this Agreement Data I/O
purchased from SMS-Mikrocomputer-Systeme GmbH, a wholly-owned subsidiary of
Company registered with the Commercial Registry at the Amtsgericht [local court]
Ravenburg under number HRB 585W (,,Mikrocomputer"), all of the intellectual
property and related rights of Mikrocomputer pursuant to the ,,Subsidiary
Technology Purchase Agreement" (Deed No. ________/98 of the acting notary). In
the second transaction, Company desires to sell to Data I/O, and Data I/O
desires to purchase from Company the Excalibur intellectual property and related
rights currently being developed by Company and Company will retain a license to
such Excalibur intellectual property in Germany, Austria, Liechtenstein and the
predominately German-speaking portions of Switzerland and Italy on the terms and
conditions set forth in this Agreement. In the third transaction, Data I/O
European Operations GmbH, a subsidiary of Data I/O (AG Munchen HRB 103439) will
purchase all of the shares of Company's nominal share capital owned by the
shareholders of Company pursuant to the ,,SMS Stock Purchase Agreement," and
collectively with the Subsidiary Technology Purchase Agreement, the ,,Related
Agreements."
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AGREEMENT
SECTION 1
PURCHASE AND SALE OF ASSETS; CLOSING
1.1 Purchase and Sale of Assets. Data I/O does hereby purchase, accept,
and acquire from Company, and Company does hereby sell, transfer, assign,
convey, and deliver to Data I/O (subject to Section 1.2), all right, title, and
interest of every kind whatsoever in and to the following assets (the
,,Assets"):
a. Technical Documentation. All technical and descriptive materials and
documentation (other than inventory) relating to IC Programmer Products
Business, including, without limitation, schematics, parts lists, supplier
lists, board layouts, mask works, user manuals, assembly drawings, notes,
instructions and laboratory notebooks and computer files recording and
summarizing daily engineering development work (the ,,Technical Documentation").
b. Contracts. All contracts, agreements, licenses, and other
commitments and arrangements, oral or written, with any person or entity
respecting the ownership, license, acquisition, design, development,
distribution, marketing, use, or maintenance of the Technical Documentation or
the Intellectual Property (as defined below), in each case relating to or
arising out of the IC Programmer Products Business (the ,,Contracts"). The
Contracts are listed on Schedule 1.1.b.
c. Intellectual Property. All hardware, firmware and software
programming technology, and those features, enhancements, derivative works and
extensions of such technology relating to the IC Programming Products Business,
and all other intellectual property rights, trade secrets, and other proprietary
information, processes, and formulae used in the IC Programmer Products Business
or otherwise necessary for the ownership and use of the Assets and the conduct
of the IC Programmer Products Business, including without limitation,
trademarks, service marks, trade names, copyrights (including registrations,
licenses, and applications pertaining thereto), patents and patent applications
(the ,,Intellectual Property"). As of the Closing Date, the Intellectual
Property includes the registered trademarks and service marks, the reserved
trade names, the registered copyrights, and the filed patent applications and
issued patents and other intellectual property listed in Schedule 1.1.c.
1.2 Company Rights. Company, for its own benefit and the benefit of its
successors and assigns, shall have in perpetuity (or for the longest time
permitted by law) the exclusive, royalty-free right and license to use, copy,
manufacture, modify, and distribute the Technical Documentation and the
Intellectual Property for the IC Programmer Products Business in Germany,
Austria, Liechtenstein and the predominately German-speaking portions of
Switzerland and Italy.
1.3 Purchase Price; Payment. The aggregate purchase price for the
Assets (the ,,Purchase Price") is US$ 2,000,000. The payment of the Purchase
Price shall be made concurrent with the execution of this Agreement, but shall
be reduced by any amounts paid or to be paid by Data I/O or Data I/O European
Operations GmbH on behalf of Company to Mrs. Wiltrud Steudel or other third
parties to be agreed under the SMS Stock Purchase Agreement. This Agreement
constitutes a bill of sale for the benefit of Data I/O with respect to the
Assets.
1.4 Taxes. Any and all sales, excise, transfer or similar taxes payable
by reason of the sale and transfer of the Assets shall be paid by the party on
which the obligation to pay any such taxes is imposed by the statute or
ordinance imposing such tax.
1.5 Allocation of Purchase Price. The Purchase Price shall be
allocated to the Intellectual Property.
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SECTION 2
MISCELLANEOUS
2.1 Publicity. Company agrees that no public release or announcement
concerning this Agreement, the Related Agreements or the transactions
contemplated hereby or thereby shall be issued by it without the prior consent
of Data I/O, such consent not to be unreasonably withheld, except as such
release or announcement may be required by applicable law, rules or regulations.
2.2 Further Assurances. Company will from time to time after the date
hereof, at Data I/O's request and without further consideration, use all efforts
to assist Data I/O in obtaining any required consents of third parties relating
to the Assets and will execute and deliver such other instruments of conveyance,
assignment and transfer and take such other actions as Data I/O may reasonably
request in order more effectively to convey, assign, transfer to, evidence and
vest in Data I/O, the Assets or the transactions contemplated hereby or in the
Related Agreements. If any required consents cannot be obtained, Data I/O and
Company shall treat the transfer as having taken place economically and Company
shall use such rights in its own name but for the account of Data I/O.
2.3 Expenses. Except as otherwise stated in the SMS Stock Purchase
Agreement, each of the parties shall each pay such party's respective expenses,
costs and fees (including, without limitation, attorneys' and accountants' fees)
incurred in connection with the negotiation, preparation, execution and delivery
of this Agreement and the Related Agreements and the consummation of the
transactions contemplated hereby and thereby.
2.4 Modification. No waiver or modification of this Agreement shall be
valid unless in writing and duly executed by all parties hereto. No evidence of
any waiver or modification shall be offered or received in evidence in any
proceedings, arbitration, or litigation between any of the parties arising out
of or affecting this Agreement, or the rights or obligations of the parties
hereunder, unless such waiver or modification is in writing and duly executed by
all parties hereto. The parties further agree that the provisions of this
Section 2.4 may not be waived except as set forth herein.
2.5 No Waiver. Failure or delay on the part of any party in exercising
any rights, power or privileges under this Agreement shall not be deemed a
waiver of any exercise of any right, power or privilege of such party.
2.6 Binding Effect; Assignment. This Agreement and the Related
Agreements to which it is a party shall be binding upon and inure to the benefit
of Company and Data I/O and their respective successors and assigns, except that
Company shall not have the right to delegate its obligations hereunder or to
assign its rights hereunder or any interest herein without the prior written
consent of Data I/O.
2.7 Survival. All of the representations and warranties set forth in
this Agreement or the Related Agreements shall survive the execution and
delivery of this Agreement or the Related Agreements, as the case may be, and
the consummation of the transactions contemplated hereby or thereby in
accordance with the terms hereof or the Related Agreements, as the case may be
(regardless of any investigation, inquiry or examination made by or on behalf of
any party, or the acceptance by any party of any delivery of property or any
writing delivered hereunder or thereunder).
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2.8 Notices. All notices, demands and other communications called for
or required by this Agreement shall be in writing and shall be addressed to the
parties at their respective addresses stated below or to such other address as a
party may subsequently designate by ten days' advance written notice to the
other parties. Communications hereunder shall be deemed to have been received
(i) upon delivery in person, (ii) five days after mailing it by certified mail,
return receipt requested and postage prepaid, (iii) the second business day
after depositing it with a commercial overnight carrier which provides written
verification of delivery or (iv) the day of transmission by telefacsimile if
sent before 2:00 p.m. recipient's time (or if the day of transmittal is not a
business day for the recipient, the next business day), provided that a copy of
such notice is sent on the same day by certified mail, return receipt requested
and postage prepaid, with an indication that the original was sent by facsimile
and the date of its transmittal.
To Data I/O: Data I/O Corporation
Attention: President & CEO
10525 Willows Road N.E.
P.O. Box 97046
Redmond, WA 98073-9746
U.S.A.
Phone: (425) 881-6444
Fax: (425) 881-2917
CC: General Counsel
Phone: (425) 867-6897
Fax: (425) 881-2917
To Company: SMS Holding GmbH
Attention: Helmut Adamski
Im Grund 15
D-88239 Wangen
GERMANY
Phone: 011 49 7522 97280
Fax:011 49 7522 972850
2.9 Full Understanding. In executing this Agreement, each party fully,
completely, and unconditionally acknowledges and agrees that it (a) has had an
equal opportunity to participate in drafting this Agreement, (b) has consulted
with, and had the advice and counsel of a duly licensed and competent attorney
and that it has executed this Agreement after independent investigation,
voluntarily and without fraud, duress, or undue influence, (c) expressly
consents that this Agreement be given full force and effect according to each
and every of its express terms and provisions and (d) agrees that no ambiguity
shall be construed against any party based upon a claim that party drafted the
applicable language.
2.10 Entire Agreement; Condition Subsequent. This Agreement (including all
Schedules hereto) and the Related Agreements contain all of the terms and
conditions agreed upon by the parties relating to the subject matter hereof and
supersede and cancel all other prior agreements, negotiations, correspondence,
undertakings, communications and understandings of the parties, whether written
or oral, respecting that subject matter. This Agreement shall be conditioned
upon the validity of the SMS Stock Purchase Agreement.
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2.11 Captions and Construction. Captions in this Agreement are for the
convenience of the reader and are not to be considered in the interpretation of
the terms.
2.12 Severability. If any one or more of the provisions of this Agreement, or
the applicability of any such provision to a specific situation, shall be held
invalid or unenforceable, such provision shall be modified to the minimum extent
necessary to make it or its application valid and enforceable, and the validity
and enforceability of all other provisions of this Agreement and all other
applications of any such provision shall not be affected thereby.
2.13 Governing Law. This Agreement and the Related Agreements shall be subject
to the laws of the Federal Republic of Germany, excluding its laws of its
international conflict of law rules and excluding the UN Convention on the
International Sale of Goods. If any dispute, controversy or claim arises between
the parties out of or in relation to this Agreement or the Related Agreements or
concerning the interpretation, enforceability, performance, breach, termination
or validity hereof or thereof, including without limitation, this Section 2.13,
the parties shall attempt, by mutual negotiation, to come to a reasonable
settlement of the same as soon as possible. If no settlement is reached within
30 days from the first notification of a dispute in writing by either party, the
same and all disputes arising from or in connection with this Agreement and the
Schedules attached hereto and the Related Agreements shall be subject to the
exclusive jurisdiction of the Landgericht Munchen I, as far as legally
permissible.
2.14 Costs of Notary. All notarization costs of this Agreement shall be borne by
Data I/O.
2.15 German Language. To the extent German terms are used in this Agreement or
the Related Agreements and conflict with the English terms used in this
Agreement or the Related Agreements, the German terms shall prevail and take
precedence over the English translation.
THIS DEED has been read aloud in the English language by the acting
Notary to the persons appeared, approved by the persons appeared, and signed by
the persons appeared and the Notary in their own hands as follows:
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OMITTED SCHEDULES FROM EXHIBIT 2.2
The following Schedules have been omitted from Exhibit 2.2 in accordance with
Item 601(b)(2) of Regulation S-K. The Registrant will furnish supplementally a
copy of any omitted Schedule to the Commission upon request.
Schedule Number Description
1.1b Contracts
1.1c Intellectual Property
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