Exhibit 2.1.1
ASSET PURCHASE AGREEMENT
BY AND AMONG
MCDOWELL RESEARCH, LTD.,
THOMAS HAUKE, EARL MARTIN, SR.,
JAMES EVANS, FRANK ALEXANDER
AND
ULTRALIFE BATTERIES, INC.
AND
MR ACQUISITION CORPORATION
DATED AS OF MAY 1, 2006
TABLE OF CONTENTS
page
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ARTICLE I. DEFINITIONS................................................... 1
Section 1.1 Certain Definitions..................................... 1
Section 1.2 Interpretation.......................................... 7
Section 1.3 Accounting Conventions.................................. 8
ARTICLE II. PURCHASE AND SALE............................................ 8
Section 2.1 Purchase and Sale of Assets............................. 8
Section 2.2 Excluded Assets......................................... 10
Section 2.3 Inability to Assign Assumed Contracts................... 11
Section 2.4 Excluded Liabilities.................................... 12
Section 2.5 Assumption of Certain Liabilities....................... 12
Section 2.6 Purchase Price.......................................... 13
Section 2.7 Closing................................................. 14
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SELLER.................... 14
Section 3.1 Organization and Power; Stock Ownership................. 14
Section 3.2 Authorization........................................... 14
Section 3.3 Approvals............................................... 15
Section 3.4 Non-Contravention....................................... 15
Section 3.5 Binding Effect.......................................... 15
Section 3.6 Seller Subsidiaries..................................... 15
Section 3.7 Financial Statements and 2006 Forecast.................. 15
Section 3.8 Title................................................... 16
Section 3.9 Transferred Assets...................................... 16
Section 3.10 Compliance With Laws.................................... 17
Section 3.11 Litigation and Claims................................... 17
Section 3.12 Intellectual Property................................... 17
Section 3.13 Adequacy of Technical Documentation..................... 20
Section 3.14 Intellectual Property Rights Granted to Seller.......... 20
Section 3.15 Third-Party Interests in Intellectual Property.......... 21
Section 3.16 Major Vendors and Customers............................. 21
Section 3.17 Assumed Contracts....................................... 21
Section 3.18 Warranties.............................................. 22
Section 3.19 Taxes................................................... 22
Section 3.20 Employment Matters...................................... 24
Section 3.21 Employee Benefits....................................... 25
Section 3.22 Environmental Matters................................... 27
Section 3.23 Insurance............................................... 27
Section 3.24 Subsequent Changes...................................... 27
Section 3.25 Related-Party Transactions.............................. 28
Section 3.26 Inventory............................................... 28
Section 3.27 Finders' Fees........................................... 28
i
Section 3.28 Disclosure.............................................. 29
Section 3.29 Convertible Note and Shares............................. 29
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF BUYER...................... 29
Section 4.1 Organization and Power.................................. 29
Section 4.2 Authorization........................................... 29
Section 4.3 Approvals............................................... 30
Section 4.4 Non-Contravention....................................... 30
Section 4.5 Binding Effect.......................................... 30
Section 4.6 Finders' Fees........................................... 30
Section 4.7 Disclosure.............................................. 30
ARTICLE V. CERTAIN COVENANTS............................................. 31
Section 5.1 Access.................................................. 31
Section 5.2 Conduct of Business..................................... 31
Section 5.3 Reasonable Efforts; Further Assurances.................. 32
Section 5.4 Business Name Change.................................... 33
Section 5.5 Exclusivity............................................. 33
Section 5.6 Confidentiality......................................... 34
Section 5.7 Public Disclosure....................................... 34
Section 5.8 Bulk Sales.............................................. 35
Section 5.9 Taxes................................................... 35
Section 5.10 Determination and Allocation of Consideration........... 36
Section 5.11 Non-Competition......................................... 36
Section 5.12 Covenants Not to Sue or Assert Rights................... 37
Section 5.13 Certain Contracts....................................... 37
Section 5.14 Risk of Loss............................................ 38
Section 5.15 Real Estate Matters..................................... 38
Section 5.16 Statement of Transaction Expenses....................... 38
Section 5.17 Accounts Receivable..................................... 38
Section 5.18 Excess Warranty Claims.................................. 38
Section 5.19 Registration Rights..................................... 39
Section 5.20 Split-Up of Convertible Note............................ 39
Section 5.21 Kalmus Litigation....................................... 39
Section 5.22 RF Amplifiers........................................... 39
ARTICLE VI. COVENANTS AS TO CERTAIN EMPLOYMENT MATTERS................... 40
Section 6.1 Employees............................................... 40
Section 6.2 Enforcement of Rights................................... 41
Section 6.3 Non-Solicitation........................................ 41
Section 6.4 Minimum Termination..................................... 41
ARTICLE VII. CONDITIONS TO CLOSING....................................... 41
Section 7.1 Conditions to the Obligations of Buyer, Acquisition Sub
and Seller.............................................. 41
Section 7.2 Further Conditions to the Obligation of Buyer and
Acquisition Sub......................................... 42
Section 7.3 Further Conditions to the Obligation of Seller.......... 45
ARTICLE VIII. INDEMNIFICATION............................................ 46
ii
Section 8.1 Indemnification by Seller and Seller Shareholders....... 46
Section 8.2 Indemnification by Buyer................................ 47
Section 8.3 Right of Offset......................................... 48
Section 8.4 Indemnification Procedures.............................. 48
Section 8.5 Indemnification Limitations............................. 49
ARTICLE IX. TERMINATION.................................................. 50
Section 9.1 Termination............................................. 50
Section 9.2 Effect of Termination................................... 51
ARTICLE X. IN GENERAL.................................................... 51
Section 10.1 Notices................................................. 51
Section 10.2 Amendment; Waiver....................................... 52
Section 10.3 No Assignment or Benefit to Third Parties............... 52
Section 10.4 Survival................................................ 52
Section 10.5 Expenses................................................ 53
Section 10.6 Schedules, Exhibits, Etc................................ 53
Section 10.7 Governing Law........................................... 53
Section 10.8 Alternate Dispute Resolution............................ 53
Section 10.9 Remedies Cumulative..................................... 54
Section 10.10 Inferences.............................................. 54
Section 10.11 Severability............................................ 54
Section 10.12 Entire Agreement........................................ 54
Section 10.13 Headings................................................ 54
Section 10.14 Counterparts............................................ 55
Section 10.15 Facsimiles.............................................. 55
TABLE OF EXHIBITS AND SCHEDULES.......................................... 1
iii
ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made as of May 1,2006 by and among McDowell Research,
Ltd., a Texas limited partnership ("SELLER"), Thomas Hauke ("Hauke"), Earl
Martin, Sr. ("Martin"), James Evans ("Evans"), Frank Alexander ("Alexander"),
Ultralife Batteries, Inc., a Delaware corporation ("BUYER"), and MR Acquisition
Corporation, a Delaware corporation ("ACQUISITION SUB").
RECITALS
Seller is engaged in the business of designing and developing power systems
and battery chargers for sale to a variety of commercial customers (the
"BUSINESS").
The parties desire that Seller sell, transfer, assign and license to
Acquisition Sub, and that Acquisition Sub purchase, license and assume from
Seller certain specified assets and liabilities related to the Business, all as
more specifically provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and undertakings contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1 CERTAIN DEFINITIONS.
The following terms will, when used in this Agreement, have the following
respective meanings:
"2005 AUDIT" means the audited combined balance sheet, statement of
operations and statement of cash flows of Seller as of and for the fiscal year
ended December 31, 2005, including the notes and schedules thereto, certified by
Pattillo, Brown & Hill, L.L.P.
"2005 BALANCE SHEET" means the audited balance sheet of Seller as of
December 31, 2005 which is part of the Financial Statements and Schedule 3.7(a).
"2006 FORECAST" means the unaudited projected statement of operations of
Seller for the fiscal year ended December 31, 2006.
"AFFILIATE" means, with respect to a Person, any other Person directly or
indirectly controlling, controlled by, or under common control with, such Person
at any time during the period for which the determination of affiliation is
being made. For purposes of this definition, the term "control" means, with
respect to any Person, the possession, directly or indirectly, of the power to
direct or cause the direction of management policies of such Person, whether
through the ownership of voting securities or by contract or otherwise.
"AGREEMENT" means this Asset Purchase Agreement, as the same may be amended
or supplemented from time to time in accordance with the terms hereof, together
with the exhibits and schedules thereto.
"ANCILLARY AGREEMENTS" means, collectively, the Convertible Note attached
to this Agreement as Exhibit A, the Employment Agreements attached to this
Agreement as Exhibits B-1, B-2 and B-3, the Lease Agreement attached to this
Agreement as Exhibit C and the Registration Rights Agreement attached to this
Agreement as Exhibit D, each as more fully described herein.
"APPLICABLE EMPLOYEES" is defined in Section 6.1(a)(i) of this Agreement.
"APPROVALS" means, collectively, the consents, approvals, waivers,
authorizations, novations, notices and filings required in connection with the
consummation of the Transaction (or of any portion of the Transaction), which
are listed on Schedule 1.1.
"ASSUMED CONTRACTS" is defined in Section 2.1(c) of this Agreement.
"ASSUMED LIABILITIES" is defined in Section 2.5 of this Agreement.
"ASSUMED LICENSE AGREEMENTS" is defined in Section 2.1(c)(i) of this
Agreement.
"BENEFITS PLANS" is defined in Section 3.21(a) of this Agreement.
"BOOKS AND RECORDS" means books, ledgers, files (including personnel
files), reports, operating records, accounting records, price lists,
correspondence and other forms of information, in any form or medium, relating
in any manner to the business, operations or financial or statistical history of
a Person.
"BUYER INDEMNIFIED PARTIES" is defined in Section 8.1 of this Agreement.
"BUYER LOSSES" is defined in Section 8.1 of this Agreement.
"CLAIM" means any pending or threatened contest, claim, charge, demand,
assessment, action, cause of action, complaint, litigation, proceeding, hearing
or notice involving any Person.
"CLAIM NOTICE" is defined in Section 8.4(b) of this Agreement.
"CLOSING" means the closing and consummation of the Transaction.
"CLOSING DATE" is defined in Section 2.7 of this Agreement.
"CLOSING DOCUMENTS" means: (a) with respect to Seller, all agreements,
documents and instruments, including the Ancillary Agreements, required to be
delivered by Seller at Closing, as set forth in Section 7.2; and (b) with
respect to Buyer and Acquisition Sub, all agreements, documents and instruments,
including the Ancillary Agreements, required to be delivered by Buyer and
Acquisition Sub at Closing, as set forth in Section 7.3.
"COBRA" means the Consolidated Omnibus Budget Reconciliation Act of 1985,
as amended, section 4980B of the Code and Title I, Part 6 of ERISA, and any
similar state group
health plan continuation law, together with all regulations and proposed
regulations promulgated thereunder.
"CODE" means the Internal Revenue Code of 1986, as amended and all Treasury
Regulations promulgated thereunder.
"COMMON STOCK" means the $.10 par value common stock of the Buyer.
"CONFIDENTIAL INFORMATION" means all information of any kind concerning the
Disclosing Party (as defined in Section 5.6) or any of its Affiliates obtained
directly or indirectly from the Disclosing Party or any of its Affiliates,
employees, representatives or agents in connection with the transactions
contemplated by this Agreement, except information (a) ascertainable or obtained
from public or published sources, (b) received from a third party who is under
no obligation to keep such information confidential, (c) which is or becomes
known to the public (other than through a breach of this Agreement), or (d)
which was in the Receiving Party's (as defined in Section 5.6) possession prior
to disclosure thereof to the Receiving Party and which was not subject to any
obligation to keep such information confidential. Any information relating to
the Transferred Assets and any other confidential or proprietary business
information transferred to Buyer hereunder shall, upon Closing, be deemed the
sole and exclusive Confidential Information of the Buyer.
"CONVERTIBLE NOTE" means that certain Senior Subordinated Convertible Note
to be issued by Buyer to Seller at Closing, substantially in the form attached
hereto as Exhibit A.
"DISCLOSING PARTY" is defined in Section 5.6(a) of this Agreement.
"EFFECTIVE TIME" is defined in Section 2.7 of this Agreement.
"EMPLOYMENT AGREEMENTS" means those certain employment agreements by and
between Buyer or Acquisition Sub and Hauke, Evans, Alexander and Ray Pixley
substantially in the forms attached hereto as Exhibits B-1, B-2, B-3 and B-4,
respectively.
"EMPLOYMENT LAWS" is defined in Section 3.20 of this Agreement.
"ENCUMBRANCES" means liens, charges, encumbrances, security interests,
options or any other restrictions or third party rights.
"ENVIRONMENTAL LAW" means, collectively, all federal, state and local
statutes, common law, authorizations, regulations, ordinances, codes, published
guidelines and policies, directives, judgments, injunctions, decrees and orders
(including all amendments thereto) pertaining to environmental matters including
but not limited to: (A) the protection, investigation or restoration of the
environment, health, safety or natural resources, (B) the handling, use,
presence, disposal, release or threatened release of any Hazardous Substance, or
(C) air, indoor air, noise, employee exposure, water vapor, surface water,
groundwater, soil, natural resources, chemical use, health, safety and
sanitation, or threat of injury to persons or property relating to any Hazardous
Substance. Without limiting the generality of the foregoing, "Environmental
Laws" include the Comprehensive Environmental Response, Compensation and
Liability Act, the Medical Waste Tracking Act, the Resource Conservation and
Recovery Act, the Clean Air Act, the Federal Water Pollution Control
Act, the Safe Water Drinking Act, the Toxic Substance Control Act and the
Occupational Safety and Health Act.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA AFFILIATE" is defined in Section 3.21(l) of this Agreement.
"EXCLUDED ASSETS" is defined in Section 2.2 of this Agreement.
"EXCLUDED LIABILITIES" is defined in Section 2.4 of this Agreement.
"FINAL BALANCE SHEET" means the audited consolidated balance sheet of
Seller as of the Closing Date, certified by such independent auditor selected by
Buyer, which will be prepared within thirty (30) days of Closing, will be
presented to Seller for review and will be added to and deemed to be part of the
Financial Statements and Schedule 3.7(a) if Seller has not reasonably objected
to such balance sheet within fifteen (15) days after Seller's receipt.
"FINANCIAL STATEMENTS" means: (a) the audited combined balance sheet,
statement of operations and statement of cash flows of Seller as of and for the
fiscal years ended December 31, 2004 and 2005, including the notes and schedules
thereto, certified by Pattillo, Brown & Hill, L.L.P. (b) the unaudited combined
balance sheet, statement of operations and statement of cash flows of Seller for
the fiscal years ended December 31, 2001, 2002 and 2003, including the notes and
schedules thereto, compiled by Pattillo, Brown & Hill, L.L.P.; (c) the Interim
Financial Statement; and (d) the Final Balance Sheet, which will be prepared
within thirty (30) days of Closing, will be presented to Seller for review and
will immediately thereafter be added to and deemed to be part of the Financial
Statements and Schedule 3.7(a) if Seller has not reasonably objected to such
balance sheet within fifteen (15) days after Seller's receipt but which shall
not be deemed to be part of the Financial Statements and Schedule 3.7(a) until
so completed and so added; all of which shall comprise Schedule 3.7(a).
"GAAP" means generally accepted accounting principles, methods and
practices set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants, and
statements and pronouncements of the Financial Accounting Standards Board, the
Securities and Exchange Commission or of such other Person as may be approved by
a significant segment of the U.S. accounting profession, in each case as of the
date or period at issue, and as applied in the U.S. to U.S. companies.
"GOVERNMENTAL AUTHORIZATIONS" means all licenses, permits, certificates and
other authorizations and approvals of any Governmental Entity required under any
Law to carry on the Business as currently conducted or anticipated in the
Ordinary Course.
"GOVERNMENTAL ENTITY" means any U.S. or non-U.S. local, state, federal or
other government, including each of their respective branches, departments,
agencies, courts, instrumentalities or other subdivisions.
"HAZARDOUS SUBSTANCE" means and includes: (a) any hazardous materials,
hazardous wastes, hazardous substances and toxic substances as those or similar
items are defined under any Environmental Law; (b) any asbestos or any material
that contains any hydrated mineral silicate,
including chrysolite, amosite, crocidolite, tremolite, anthophylite and/or
actinolite, whether friable or non-friable; (c) any polychlorinated biphenyls or
polychlorinated biphenyl-containing materials or fluids; (d) radon; (e) any
other hazardous, explosive, flammable, infectious, carcinogenic, mutagenic,
radioactive, toxic or noxious substance, material, pollutant, contaminant or
solid, liquid or gaseous waste; (f) any petroleum, petroleum hydrocarbons,
petroleum products, crude oil or any fractions thereof, natural gas or synthetic
gas; and (h) any substance that, whether by its nature or its use, is or becomes
subject to regulation under any Environmental Laws or with respect to which any
Environmental Laws or Governmental Entity requires or will require environmental
investigation, monitoring or remediation.
"HIRED EMPLOYEES" is defined in Section 6.1(a)(ii) of this Agreement.
"INDEMNIFIED PARTIES" means, as appropriate in the context, either the
Buyer Indemnified Parties or the Seller Indemnified Parties, which terms are
defined in Article VIII.
"INDEMNIFYING PARTY" means a party obligated to provide indemnification
pursuant to Article VIII.
"INTELLECTUAL PROPERTY" means patents, inventions, trade secrets, concepts,
know-how, inventions, discoveries, disclosures, copyrights (whether registered
or unregistered), works of authorship, trademarks (whether registered or
unregistered), service marks (whether registered or unregistered), mask works,
trade names, trade dress, product names, slogans, logos and Internet domain
names, including registrations and applications for any of the foregoing,
software, firmware, object code, source code, specifications, processes,
drawings, designs, technology, methods, techniques, formulae, work papers, and
proprietary information and documents incorporating any similar rights,
including technical reports and laboratory data (in all media).
"INTERIM FINANCIAL STATEMENT" means the unaudited combined balance sheet,
statement of operations and statement of cash flows of Seller for the three
months ended March 31, 2006.
"INVENTORY" is defined in Section 2.1(d) of this Agreement.
"KALMUS LITIGATION" means that litigation currently entitled AR Kalmus
Corp. v. Thomas Russell, Terry Perdue, Alan Chandler and McDowell Research
Corporation, pending in the Court of Common Pleas of Montgomery County in the
Commonwealth of Pennsylvania (Civil Action No. 03-24185) and all disputes,
claims, litigations and suits arising out of the facts upon which the pending
matter is based.
"LAW" means any applicable law (including common law), statute, ordinance,
rule, regulation, code, order, judgment, injunction, decree or judicial or
administrative doctrine that is promulgated or issued by any Governmental
Entity.
"LEASE AGREEMENT" means that certain Lease Agreement substantially in the
form attached hereto as Exhibit C.
"LIABILITY" means any direct or indirect indebtedness, liability, Claim,
damage, deficiency, obligation or responsibility, fixed or unfixed, choate or
inchoate, liquidated or unliquidated, secured or unsecured, accrued, absolute,
contingent or otherwise.
"LOSSES" means Liabilities, losses, interest, penalties and reasonable
costs and expenses associated therewith (including attorneys' fees, litigation
costs, fines, penalties and expenses of investigation), whether asserted by a
party to this Agreement or by a third party, but in no event includes incidental
or consequential damages.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the condition
(financial or otherwise), results of operations or assets of the Business or on
Seller's ability to perform its obligations under this Agreement.
"NO-SHOP PERIOD" is defined in Section 5.5(a) of this Agreement.
"NOTICE PERIOD" is defined in Section 8.4(c) of this Agreement.
"ORDINARY COURSE" means the ordinary course of business of the Business,
consistent with past practices.
"PATENTS" is defined in Section 2.1(a)(ii) of this Agreement.
"PERMITTED ENCUMBRANCES" means Encumbrances that secure or constitute an
Assumed Liability that is recorded on the Books and Records of Seller as of the
Closing Date.
"PERSON" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization.
"PRODUCTS" is defined in Section 2.1(b) of this Agreement.
"PURCHASE PRICE" is defined in Section 2.6(a) of this Agreement.
"PURCHASE TRANSACTION" is defined in Section 5.5(b) of this Agreement.
"RECEIVING PARTY" is defined in Section 5.6(a) of this Agreement.
"REGISTRATION RIGHTS AGREEMENT" means that certain Registration Rights
Agreement substantially in the form attached hereto as Exhibit D.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLER INDEMNIFIED PARTIES" is defined in Section 8.2 of this Agreement.
"SELLER LOSSES" is defined in Section 8.2 of this Agreement.
"SELLER SHAREHOLDERS" means Hauke, Martin, Evans and Alexander.
"SHARES" means the shares of Buyer's Common Stock issuable upon conversion
of the Convertible Note.
"SOFTWARE" is defined in Section 2.1(a)(i) of this Agreement.
"SUBSIDIARY" means any Person, fifty percent (50%) or more of the
outstanding equity interests of which are owned, directly or indirectly, by
another Person.
"TAXES" means all taxes levied or imposed by any Governmental Entity,
including income, gross receipts, windfall profits, value added, severance,
production, sales, use, license, excise, franchise, employment, environmental,
real property, personal property, transfer, alternative minimum, estimated,
withholding or other taxes, together with any interest, additions or penalties
with respect thereto and any interest in respect of such additions or penalties,
whether or not disputed or contested.
"TAX RETURNS" means all U.S. and non-U.S. reports and returns required to
be filed with respect to Taxes, including all attachments thereto.
"TECHNICAL DOCUMENTATION" is defined in Section 2.1(e) of this Agreement.
"TRADEMARKS" is defined in Section 2.1(a)(iii) of this Agreement.
"TRANSFERRED ASSETS" is defined in Section 2.1 of this Agreement.
"TRANSFERRED INTELLECTUAL PROPERTY" is defined in Section 2.1(a) of this
Agreement.
"TRANSACTION" means, collectively, the purchase and sale of the Transferred
Assets, the assumption of the Assumed Liabilities and the execution and delivery
of the Closing Documents and the other transactions, all as herein provided.
"U.S." means the United States of America.
SECTION 1.2 INTERPRETATION.
In this Agreement, unless the express context otherwise requires:
(A) the words "HEREIN," "HEREOF" and "HEREUNDER" and words of similar
import refer to this Agreement as a whole and not to any particular provision of
this Agreement;
(B) references to "ARTICLE" or "SECTION" are to the respective
Articles and Sections of this Agreement, and references to "EXHIBIT" or
"SCHEDULE" are to the respective Exhibits and Schedules annexed hereto;
(C) references to a "PARTY" mean a party to this Agreement and include
references to such party's permitted successors and permitted assigns;
(D) references to a "THIRD PARTY" mean a Person not a party to this
Agreement;
(E) the terms "DOLLARS" and "$" means U.S. dollars;
(F) terms defined in the singular have a comparable meaning when used
in the plural, and vice versa;
(G) references to a party's "KNOWLEDGE" or any similar phrase means
with respect to any Person, the actual knowledge of such Person. In the case of
Seller, knowledge shall include only the actual collective knowledge of Hauke,
Martin, Evans and Alexander after due inquiry, as well as such knowledge as
should have been obtained by these individuals in the exercise of due inquiry
(determined in light of their roles and responsibilities generally);
(H) the masculine pronoun includes the feminine and the neuter, and
vice versa, as appropriate in the context; and
(I) wherever the word "INCLUDE," "INCLUDES" or "INCLUDING" is used in
this Agreement, it will be deemed to be followed by the words "without
limitation."
SECTION 1.3 ACCOUNTING CONVENTIONS.
Except as expressly provided otherwise herein, all references in this
Agreement to financial terms will be deemed to refer to such terms as they are
defined under GAAP, consistently applied.
ARTICLE II. PURCHASE AND SALE
SECTION 2.1 PURCHASE AND SALE OF ASSETS.
On the terms and subject to the conditions set forth herein, at Closing,
Seller will sell, convey, transfer, assign and deliver to Acquisition Sub, and
Acquisition Sub will purchase from Seller, all of Seller's right, title and
interest in and to the following listed assets owned by Seller that are used or
useful in, related to or arise out of the Business (except for those assets that
are defined in Section 2.2 as Excluded Assets), in each such case as the same
exist on the Closing Date (collectively, the "TRANSFERRED ASSETS"):
(A) all Intellectual Property, including the following (collectively,
the "TRANSFERRED INTELLECTUAL PROPERTY"):
(I) all source code, object code, design documentation and
procedures for product generation and testing of all computer software
and firmware, including that listed on Schedule 2.1(a)(i) and
including the software rules and algorithms, flowcharts, trade
secrets, know-how, inventions, patents, copyrights, designs, technical
processes, works of authorship, Technical Documentation, included in
or relating to the same (collectively, the "SOFTWARE");
(II) all patents and patent applications, including those listed
on Schedule 2.1(a)(ii), together with any division, continuation,
continuation-in-part, continuing prosecution application, continued
examination application, reinstatement, reexamination, revival,
reissue, extension or substitution of any thereof, and corresponding
foreign applications, patents and rights thereto, including, in all
cases, the right to sue for past infringement thereof and to collect
any past or future royalties or other payments in connection therewith
(collectively, the "PATENTS");
(III) all trademarks, service marks, trade names, trade dress,
product names, slogans and logos, including those listed on Schedule
2.1(a)(iii), and corresponding foreign applications, marks and rights
thereto, including, in all cases, the right to sue for past
infringement thereof and to collect any past or future royalties or
other payments in connection therewith (collectively, the
"TRADEMARKS");
(IV) all product development projects, including those listed on
Schedule 2.1(b);
(V) all Internet, intranet and World Wide Web content, sites,
domain names and pages, and all HTML and other code related thereto,
including those listed on Schedule 2.1(a)(v); and
(B) all products related to or incorporating any Intellectual
Property, including those listed on Schedule 2.1(b) and including all proposed
or unimplemented developments or improvements thereof, and the trade secrets,
know-how, inventions, patents, copyrights, mask works, designs, technical
processes, works of authorship and technical data included in or relating to the
same (the "PRODUCTS");
(C) only the following contracts and instruments, and no others
(collectively, the "ASSUMED CONTRACTS"):
(I) those contracts, agreements, licenses (whether granted to or
by a third party) and other commitments and arrangements, oral or
written, with any Person respecting the ownership, license,
acquisition, design, development, distribution, marketing, use,
maintenance, support or enhancement of Intellectual Property, related
technical or user documentation or databases (including royalty,
work-for-hire, consulting, employment, dealership and franchise
agreements), which are listed on Schedule 2.1(c)(i) (the "ASSUMED
LICENSE AGREEMENTS"); and
(II) those other agreements, contracts, subcontracts, leases and
subleases of personal property, arrangements, commitments, licenses
and sublicenses, with customers, suppliers, resellers, distributors,
current, former or prospective employees, employee groups, or other
third parties, which are listed on Schedule 2.1(c)(ii);
(III) subject to the insurer's acceptance and any limitations
imposed by law, Seller's health insurance plan with United Health
Insurance and Seller's dental plan, in each instance as of the Closing
Date;
(D) all inventories of (i) Products; (ii) computer program code (in
all media) and materials; (iii) program documentation, including user materials;
and (iv) all other unused or reusable materials, stores and supplies, including
those of the nature or type reflected on the Preliminary Final Balance Sheet or
on Schedule 2.1(d) (the "INVENTORY");
(E) all technical and descriptive materials in all media (other than
Inventory) relating to the acquisition, design, development, use or maintenance
of Intellectual Property or the
Products, including any compilers, tools, libraries, debuggers and higher level
or proprietary language (the "TECHNICAL DOCUMENTATION");
(F) all of the furniture, fixtures, equipment, computer equipment and
hardware, Seller-owned 1996 Dodge pickup truck, machinery, apparatus, media,
tools, appliances, implements, supplies and other tangible personal property of
Seller wherever located including that listed on Schedule 2.1(f), along with all
rights under related product warranties, including any leasehold improvements
owned by Seller for the Seller's leased premises located in Waco;
(G) all customer lists and documentation (in all media) relating to
the customers of the Business;
(H) as the same relate to the other Transferred Assets enumerated
herein, all Books and Records, and all proprietary and non-proprietary business
information, including marketing and sales materials and publications, product
literature, reports, plans, records, pricing, cost and other manuals,
advertising materials, catalogues, sales, service and maintenance records, and
training materials;
(I) to the extent their transfer is permitted by Law, all Governmental
Authorizations which are required for the conduct of the Business, and all
applications therefor;
(J) all Claims that Seller may have against any Person relating to or
arising out of any Transferred Asset or any Hired Employee, including rights to
recover damages, settlements, rights to refunds, Claims for compensation or
benefits, insurance Claims, Claims of infringement or past infringement of any
Intellectual Property rights and royalty or similar rights related to any
Transferred Intellectual Property;
(K) the assets, if any, that are listed on Schedule 2.1(k);
(L) all accounts receivable of Seller; and
(M) all goodwill of the Business associated with the foregoing
enumerated Transferred Assets.
SECTION 2.2 EXCLUDED ASSETS.
Notwithstanding anything herein to the contrary, from and after Closing,
Seller will retain all of its existing right, title and interest in and to, and
there will be excluded from the sale, conveyance, assignment or transfer to
Acquisition Sub hereunder, and the Transferred Assets will not include, the
following, in each case as the same exists on the Closing Date (collectively,
the "EXCLUDED ASSETS"):
(A) all other agreements, instruments, contracts, subcontracts,
leases, subleases, arrangements, commitments, licenses, sublicenses and
independent contractor agreements, written or oral, and sales representative
agreements, written or oral, that are not Assumed Contracts;
(B) all employee compensation, retirement, pension, severance,
deferred compensation, health, welfare or benefit plans and programs, and all
funds and accounts held thereunder;
(C) all real property, including land, buildings, structures and
improvements thereon, appurtenances thereto and interests therein (including
leasehold or possessory interests), and all fixtures constituting part of such
real property, except as provided in Section 2.1(f);
(D) all refunds, overpayments and prepayments of Taxes and duties paid
by Seller,
(E) all Tax Returns of Seller and all other Books and Records related
thereto;
(F) all corporate minute books and stock records of Seller;
(G) the capital stock of any Subsidiary;
(H) the Convertible Note and the Seller's rights under this Agreement;
(I) cash and cash equivalents; and
(J) the assets, if any, that are set forth on Schedule 2.2(j).
SECTION 2.3 INABILITY TO ASSIGN ASSUMED CONTRACTS.
(A) Notwithstanding anything to the contrary contained in this
Agreement or in any Closing Document, to the extent that the assignment or
attempted assignment to Acquisition Sub of any Assumed Contract, or any Claim,
right or benefit arising thereunder or resulting therefrom, is prohibited by any
Law, or would require any consent, approval, waiver, authorization or novation
by a Governmental Entity or a Person and such consent, approval, waiver,
authorization or novation has not been obtained prior to Closing and in a form
acceptable to Acquisition Sub in its sole discretion, or with respect to which
any attempted assignment would be ineffective or would materially adversely
affect the rights of Seller or Acquisition Sub thereunder, then this Agreement
will not constitute an assignment or attempted assignment thereof, and the same
will not be assigned at Closing.
(B) Both prior and subsequent to Closing, the parties will use
commercially reasonable efforts, and cooperate with each other, to obtain
promptly all consents, approvals, waivers, authorizations or novations,
including all Approvals, for the Assumed Contracts on terms acceptable to Buyer
and Acquisition Sub in its sole discretion. Buyer will bear and pay the cost of
all filing, recordation and similar fees and Taxes incurred after the date
hereof and payable to Governmental Entities in connection with assignment of the
Assumed Contracts, and any additional fees or charges (howsoever denominated)
required by any Persons in connection with the assignment of any Assumed
Contract or obtaining any consent, approval, waiver, authorization or novation,
including any Approval.
(C) If any consent, approval, waiver, authorization or novation,
including any Approval, which is necessary for the effective assignment to
Acquisition Sub of any Assumed Contract, cannot be obtained or made and, as a
result, the full benefits of use of such Assumed Contract cannot be provided to
Acquisition Sub following Closing otherwise in accordance with this Agreement,
then Seller will use its best efforts to provide Acquisition Sub the economic
(taking into account all burdens and benefits, including Tax costs and benefits)
and operational equivalent, to the extent permitted, of obtaining or making such
consent, approval, waiver, authorization or novation, as the case may be, and to
permit Acquisition Sub to perform Seller's obligations and enforce Seller's
rights under such Assumed Contract as if such Assumed Contracts had been sold,
conveyed, assigned and delivered to Acquisition Sub, including (i) enforcing, at
the Acquisition Sub's request and at the expense of Seller, any rights of Seller
arising with respect thereto, including the right to terminate in accordance
with the terms thereof upon the advice of Acquisition Sub and (ii) permitting
Acquisition Sub to enforce any rights arising with respect thereto. Seller will
pay to Acquisition Sub, when received, all income, proceeds and other monies
received by Seller from third parties to the extent related to Acquisition Sub's
intended rights under any Assumed Contract, as contemplated by this Section
2.3(c). Once any such consent, approval, waiver, authorization or novation is
obtained or made in a form acceptable to Acquisition Sub in its sole discretion,
Seller will assign such Assumed Contract to Acquisition Sub at no additional
cost. Any expenses incurred by Seller, and any reasonable expenses incurred by
Acquisition Sub, in connection with the arrangements contemplated by this
Section 2.3(c) will be borne by Buyer.
(D) The provisions of this Section 2.3 shall not affect the right of
the Buyer and Acquisition Sub to elect not to consummate the Transaction
contemplated by this Agreement if the conditions to its obligations hereunder
contained in Article VII hereof have not been otherwise fulfilled.
SECTION 2.4 EXCLUDED LIABILITIES.
It is expressly understood and agreed that neither Buyer nor Acquisition
Sub (nor any of their Affiliates) will assume, nor will any of them be liable
for, any Liability of Seller, any Seller Subsidiary, any Affiliate of Seller or
the Business, of any kind or nature, at any time existing or asserted, howsoever
arising, whether or not accrued, whether fixed, contingent or otherwise, whether
known or unknown, liquidated or unliquidated, due or to become due, and whether
or not recorded on the Books and Records of any Person, unless such Liability is
expressly within the definition of Assumed Liabilities under Section 2.5. All
Liabilities that are not expressly within the definition of Assumed Liabilities
under Section 2.5 are referred to collectively as the "EXCLUDED LIABILITIES."
SECTION 2.5 ASSUMPTION OF CERTAIN LIABILITIES.
On the terms and subject to the conditions set forth herein, Acquisition
Sub will assume and agree to satisfy and discharge or perform when due only the
following Liabilities of Seller (and no others) (collectively, the "ASSUMED
LIABILITIES"):
(A) all Liabilities identified on the Final Balance Sheet arising
under the Assumed Contracts to the extent that the rights and benefits of Seller
thereunder are effectively transferred
or assigned to Acquisition Sub, or novated for the benefit of Acquisition Sub,
subject to Section 2.3(c) hereof;
(B) all Liabilities that arise out of or relate to the Transferred
Assets (other that the Assumed Contracts) to the extent such Liabilities are
attributable to occurrences and circumstances arising after Closing;
(C) all Liabilities for accounts payable, Deferred Revenue and Central
National Bank Notes Payable (Nos. 4420600 and 4491500) identified on the Final
Balance Sheet, but only up to the amount of such Liabilities set forth on the
Final Balance Sheet;
(D) that amount of the $2,500,000 Revolving Line of Credit Note with
Central National Bank (No. 4885400) which the Presidents of Seller and Buyer
agree prior to Closing represents amounts borrowed by Seller to support
shipments of Product after Closing to Seller's customers;
(E) that amount paid by Seller for RF amplifiers pursuant to Section
5.22 which the Presidents of Seller and Buyer agree prior to Closing relates to
the purchase of amplifier inventory, the sale of which will be made by Buyer
after Closing; and
(F) all Liabilities for post-Closing occupancy of the apartment leased
premises at Apartment 301, South 4th Street, in Waco, Texas.
SECTION 2.6 PURCHASE PRICE.
(A) On the terms and subject to the conditions set forth in this
Agreement, and subject to adjustment, if any, as provided by Section 2.6(c) and
Section 2.6(d), the purchase price for the Transferred Assets is Twenty-Five
Million Dollars ($25,000,000) (the "PURCHASE PRICE"). The Purchase Price shall
consist of (i) Five Million Dollars ($5,000,000); and (ii) the Convertible Note,
the original principal amount of which shall be Twenty Million Dollars
($20,000,000).
(B) On the terms and subject to the conditions set forth in this
Agreement, at Closing, Buyer shall pay the Purchase Price as follows:
(I) by wire transfer of immediately-available funds in the amount
of Five Million and no/100 Dollars ($5,000,000); and
(II) by delivery of the Convertible Note.
(C) To the extent the total of the accounts receivable plus inventory
minus accounts payable on the Final Balance Sheet is less than $3,000,000, the
principal amount of the Convertible Note shall be decreased, and to the extent
the total of the accounts receivable plus inventory minus accounts payable on
the Final Balance Sheet is greater than $3,000,000, that amount will be
distributed to Seller as collected. The amount distributed to Seller, if any,
shall be computed and paid on a monthly basis within thirty (30) days of month
end. Schedule 2.6(c) sets forth the manner in which the cash resulting from the
post-Closing collection of accounts
receivable will be allocated between Seller and Buyer if any distributions are
owed Seller pursuant to this Section 2.6(c).
(D) To the extent the Presidents of Seller and Buyer agree that there
are Assumed Liabilities pursuant to Section 2.5(d) and Section 2.5(e), the
Purchase Price shall be deemed adjusted upward by the amount of those Assumed
Liabilities.
SECTION 2.7 CLOSING.
Closing will take place at the offices of Buyer's counsel, Harter, Secrest
& Emery LLP, 1600 Bausch & Lomb Place, Rochester, New York, at 9:00 a.m., local
time, on July 31, 2006, or on such other date, or at such other time or place,
as the parties may mutually agree. The date on which Closing occurs is called
the "CLOSING DATE" and Closing will be effective (the "EFFECTIVE TIME") as of
the time of day (in Rochester, New York) set forth in a certificate to be
executed by the Buyer and Seller on the Closing Date. The required deliveries at
Closing are set forth in Article VII.
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SELLER
As of the date hereof and (except as otherwise expressly stated herein) as
of the Closing, each of Seller, and each Seller Shareholder, jointly and
severally, represents and warrants to Buyer as follows:
SECTION 3.1 ORGANIZATION AND POWER; STOCK OWNERSHIP.
(A) Seller is a limited partnership duly organized, validly existing
and in good standing under the Laws of the State of Texas. Seller has all
requisite partnership power and authority to enter into this Agreement and the
Closing Documents, to perform its obligations hereunder and thereunder, to own,
lease, operate and transfer the Transferred Assets, and to carry on the Business
as now being conducted. Seller is duly qualified to do business and is in good
standing as a foreign limited partnership in each jurisdiction where its
ownership or operation of the Transferred Assets or its conduct of the Business
requires such qualification, which jurisdictions are listed on Schedule 3.1(a).
(B) The total capital of Seller consists of 99% limited partner
interest and 1% general partner interest. There are no preemptive or other
outstanding rights, options, warrants, conversion rights or agreements or
commitments to issue or sell any securities or obligations convertible into or
exchangeable for, or giving any Person a right to subscribe for or acquire, any
equity interest in Seller, and no securities or obligations evidencing such
rights are outstanding.
SECTION 3.2 AUTHORIZATION.
Seller has full partnership power and authority to execute and deliver this
Agreement and each Closing Document and to perform its obligations hereunder and
thereunder. The execution, delivery and performance by Seller of this Agreement
and each Closing Document have been duly and validly authorized by Seller's
general partner and by the limited partner of Seller and, if
necessary, by the other Persons listed on Schedule 3.1(b), and no additional
partnership authorization or consent is required in connection therewith.
SECTION 3.3 APPROVALS.
Except for the Approvals, no consent, approval, waiver, authorization or
novation is required to be obtained by Seller and no notice or filing is
required to be given by Seller to, or made by Seller with, any Governmental
Entity or other Person in connection with the execution, delivery and
performance by Seller of this Agreement and each Closing Document and the
consummation of the Transaction.
SECTION 3.4 NON-CONTRAVENTION.
The execution, delivery and performance by Seller of this Agreement and
each Closing Document, and the consummation of the Transaction, do not and will
not: (a) violate any provision of the Certificate of Limited Partnership or the
Limited Partnership Agreement or other organizational documents of Seller; (b)
assuming the receipt or making of all Approvals, conflict with, or result in the
breach of, or constitute a default under, or result in the termination,
cancellation or acceleration (whether after the filing of notice or the lapse of
time or both) of any right or obligation of Seller under, or a loss of any
benefit to which Seller is entitled under, any Assumed Contract or any contract
to which Seller is a party, or result in the creation of any Encumbrance (other
than a Permitted Encumbrance) upon any of the Transferred Assets; or (c)
assuming the receipt or making of all Approvals, violate or result in a breach
of or constitute a default under any Law, judgment, injunction, order, decree or
other restriction of any Governmental Entity to which Seller is subject.
SECTION 3.5 BINDING EFFECT.
This Agreement and each Closing Document, when executed and delivered by
Buyer and Seller, will constitute valid and legally binding obligations of
Seller, enforceable against it in accordance with their respective terms,
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles.
SECTION 3.6 SELLER SUBSIDIARIES.
Seller has no Subsidiaries.
SECTION 3.7 FINANCIAL STATEMENTS AND 2006 FORECAST.
(A) Annexed hereto as Schedule 3.7(a) are each of the Financial
Statements. The Financial Statements fairly present the financial position and
the results of the operations of the Business for the respective periods therein
stated, and reflect adequate reserves for all known Liabilities, as of the
respective dates therein stated. The Final Balance Sheet will be prepared and
the Financial Statements for the years ended December 31, 2004 and December 31,
2005
have been prepared in accordance with GAAP consistently applied, except as noted
in the footnotes and except with respect to inventory valuation for the year
ended December 31, 2004.
(B) The Business does not have any Liability of any nature that is not
reflected or reserved against on the Financial Statements except for: (i)
Liabilities of a similar nature as those reflected or reserved against on the
Financial Statements that were incurred in the Ordinary Course since December
31, 2005; and (ii) those Liabilities set forth on Schedule 3.7(b). Accounts
payable reflected in the Financial Statements have arisen from bona fide
transactions and are usual and normal in amount both individually and in the
aggregate. Except as set forth on Schedule 3.7(b), all Liabilities of the
Business incurred after December 31, 2005 were incurred in the Ordinary Course,
arose from bona fide transactions, and are usual and normal in amount both
individually and in the aggregate. Except as set forth on Schedule 3.7(b), all
Liabilities of the Business can be prepaid without penalty at any time. Except
as set forth on Schedule 3.7(b), all proceeds of the $2,500,000 borrowing
pursuant to the Revolving Line of Credit with Central National Bank have been
used by Seller to support inventory purchases for the benefit of and shipments
of Product to Seller's customers.
(C) Annexed hereto as Schedule 3.7(c) is the 2006 Forecast. The 2006
Forecast has been prepared in good faith by Seller to the best of Seller's
ability and is based on certain assumptions and Seller's analysis of information
available as of the date of this Agreement. All material assumptions are
identified on the Schedule of Assumptions which accompanies the 2006 Forecast,
and all such assumptions are reasonable in the context presented.
SECTION 3.8 TITLE.
With respect to all of the Transferred Assets, Seller has and will have at
Closing: (i) good title to all tangible property included in the Transferred
Assets, free and clear of all Encumbrances except for Permitted Encumbrances;
and (ii) all right, title and interest in and to all intangible property
included in the Transferred Assets, free and clear of all Encumbrances except
for Permitted Encumbrances and, in the case of the Assumed Contracts, subject to
the rights of third parties thereunder. Seller will effectively transfer such
title to all of the Transferred Assets to Buyer at Closing.
SECTION 3.9 TRANSFERRED ASSETS.
(A) The Transferred Assets, when taken together with the Excluded
Assets, constitute all properties, assets and leasehold estates, real, personal
and mixed, tangible and intangible, comprising, used or useful in the operation
of the Business on the date hereof and immediately prior to Closing.
(B) Except as set forth in Schedule 3.9(b), those Transferred Assets
that are tangible and are presently being used by Seller for manufacturing
Products, are in a good state of repair and condition, ordinary wear and tear
excepted.
(C) All of the Inventory is good and marketable and, except as set
forth in Schedule 3.9(c), all of the Software and Products included in the
Inventory are the respective current versions thereof.
(D) All of the accounts receivable (including the accounts,
obligations, contracts and instruments which underlie such accounts receivable)
set forth on the Financial Statements, net of the reserve for doubtful accounts
shown thereon, and those accounts receivable arising subsequent to December 31,
2005 and prior to the Closing Date will be good and collectible on the Closing
Date at their respective full amounts. All of such accounts receivable are owned
by Seller free of all claims and encumbrances. Seller has not rescinded,
cancelled, settled, modified or otherwise compromised any accounts receivable,
or any indebtedness due thereunder, or any guaranty or repurchase obligation
related thereto, except in the Ordinary Course.
SECTION 3.10 COMPLIANCE WITH LAWS.
(A) The Business has been and is being conducted in compliance with
all Laws, except for any non-compliance that would not, individually or in the
aggregate have a Material Adverse Effect. The Seller has all Governmental
Authorizations necessary for the conduct of the Business as currently conducted,
except for those Governmental Authorizations the absence of which would not,
individually or in the aggregate, have a Material Adverse Effect.
(B) To Seller's knowledge, each of the premises of the Business
conforms to and complies with all covenants, conditions, restrictions,
reservations, land use, zoning, health, fire, water and building codes and other
similar Laws, and no such Laws prohibit or limit or condition the use or
operation of such premises as currently used and operated. There is no pending,
or to Seller's knowledge, contemplated, threatened or anticipated change in the
zoning classification of any of such premises. Seller has operated and
maintained such premises in accordance with applicable Laws.
SECTION 3.11 LITIGATION AND CLAIMS.
Except as set forth on Schedule 3.11: (a) there is no civil, criminal or
administrative Claim or investigation pending or, to Seller's knowledge,
threatened, against Seller or any Seller Affiliate with respect to or relating
to the Business, any of the Transferred Assets or Assumed Liabilities; and (b)
neither the Business, nor any of the Transferred Assets nor any Assumed
Liability is subject to any order, writ, judgment, award, injunction or decree
of any Governmental Entity or of any arbitrator.
SECTION 3.12 INTELLECTUAL PROPERTY.
(A) Seller owns or has the right to use pursuant to written license,
sublicense, agreement or permission all of the Transferred Intellectual
Property. Each item of Transferred Intellectual Property and Seller's rights
under the Assumed License Agreement will be owned or available for use by right
by Buyer immediately upon Closing, without the payment of any additional amounts
to any third party, other than applicable Assumed Liabilities. Upon Closing,
to the Seller's knowledge, all available patent rights as to any of the
Transferred Intellectual Property or any of the Products may be pursued
exclusively by Buyer.
(B) Seller owns and Buyer will receive at Closing, free and clear of
all Encumbrances (except for Permitted Encumbrances), all Intellectual Property
and other proprietary information, processes and formulae used in, related to or
arising from the Business or otherwise necessary for the ownership, maintenance
and use of the Transferred Assets and the conduct of the Business.
(C) Except as set forth in Schedule 3.12(c), Seller has not interfered
with, infringed upon, misappropriated or otherwise violated (whether through the
use of the Transferred Intellectual Property or otherwise) any Intellectual
Property rights of any third party, and no Claim has been asserted by any Person
as to the use of the Transferred Intellectual Property or alleging any such
interference, infringement, misappropriation or violation (including any Claim
that Seller must license or refrain from using any Intellectual Property rights
of any third party), and Seller does not know of any valid basis for any such
Claim. Except as set forth in Schedule 3.12(c), to Seller's knowledge, no third
party has interfered with, infringed upon, misappropriated or otherwise violated
any rights of Seller with respect to the Transferred Intellectual Property.
Seller has made available to Buyer all infringement studies, including opinions
of counsel, prepared by or on behalf of Seller.
(D) Schedule 2.1(a)(i) identifies all Software of Seller. Seller has
made available to Buyer correct and complete copies of all such items of
Transferred Intellectual Property, as amended to date, and has made available to
Buyer correct and complete copies of all other written documentation evidencing
ownership and prosecution (if applicable) of each such item. Except as set forth
in Schedule 3.12(d), with respect to each such item of Transferred Intellectual
Property:
(I) the item is not subject to any outstanding injunction,
judgment, order, decree, ruling, or charge nor, to Seller's knowledge, is any of
the foregoing threatened;
(II) no Claim or investigation is pending or, to Seller's
knowledge, threatened, which challenges the legality, validity, enforceability,
use or ownership of the item; and
(III) Seller has not agreed to indemnify any Person for or
against any interference, infringement, misappropriation or other violation with
respect to the item.
(E) Schedule 2.1(a)(ii) and Schedule 2.1(a)(iii) identify each Patent
and Trademark of Seller. Seller has made available to Buyer correct and complete
copies of all items related to such Transferred Intellectual Property, as
amended to date, and has made available to Buyer correct and complete copies of
all other written documentation evidencing ownership and prosecution (if
applicable) of each such item, including all applications, registrations and
prosecution materials. Except as set forth in Schedule 3.12(e), with respect to
each such item of Transferred Intellectual Property:
(I) the item is not subject to any outstanding injunction,
judgment, order, decree, ruling, or charge nor, to Seller's knowledge, is any of
the foregoing threatened;
(II) no Claim or investigation is pending or, to Seller's
knowledge, threatened, which challenges the legality, validity, enforceability,
use or ownership of the item;
(III) Seller has not agreed to indemnify any Person for or
against any interference, infringement, misappropriation or other violation with
respect to the item; and
(IV) Seller has not taken, nor does it know of, any actions,
including a sale or offer for sale, the disclosure of which could lead to the
invalidity of any resulting patent.
(F) Schedule 2.1(b) identifies each Product and Seller has made
available to Buyer correct and complete copies of all items related to the same,
as amended to date, and has made available to Buyer correct and complete copies
of all other written documentation evidencing ownership and prosecution (if
applicable) of each such item, including all applications, registrations and
prosecution materials. Except as set forth in Schedule 3.12(f), with respect to
each Product:
(I) the Product is not subject to any outstanding injunction,
judgment, order, decree, ruling, or charge nor, to Seller's knowledge, is any of
the foregoing threatened;
(II) no Claim or investigation is pending or, to Seller's
knowledge, threatened, which challenges the legality, validity, enforceability,
use or ownership of the Product;
(III) Seller has not agreed to indemnify any Person for or
against any interference, infringement, misappropriation or other violation with
respect to the Product; and
(G) with respect to each Assumed License Agreement:
(I) the Assumed License Agreement is legal, valid, binding,
enforceable and in full force and effect with respect to Seller and any other
party thereto;
(II) the Assumed License Agreement will continue to be legal,
valid, binding, enforceable and in full force and effect with respect to Buyer
and any other party thereto following the consummation of the Transaction;
(III) neither Seller nor any other party to the Assumed License
Agreement is in breach or default, and no event has occurred which with notice
or lapse of time would constitute a breach or default or permit termination,
modification or acceleration thereunder;
(IV) neither Seller nor any other party to the Assumed License
Agreement has repudiated any material provision thereof or threatened any breach
thereof;
(V) to the Seller's knowledge, (i) with respect to each Assumed
License Agreement that is a sublicense of Intellectual Property owned by a third
party, the representations and warranties set forth in Sections 3.12(g)(i)
through 3.12(g)(iv) are true and correct with respect to the underlying license;
and (ii) no Claim or investigation is pending or threatened that challenges the
legality, validity or enforceability of the Intellectual Property owned by a
third party underlying the Assumed License Agreement, and there is no basis for
any such Claim.
(H) Schedule 3.12(h) sets forth the form and placement of the
proprietary legends and copyright notices displayed in or on the Software. To
Seller's knowledge, in no instance has the eligibility of the Software for
protection under applicable copyright law been forfeited to the public domain by
omission of any required notice or any other action.
(I) Seller has promulgated and used its commercially reasonable
efforts to enforce the trade secret protection program set forth in Schedule
3.12(i). To Seller's knowledge, there has been no material violation of such
program by any Person. The Transferred Intellectual Property (including any
source code and system documentation relating to the Software): (i) has at all
times been maintained in confidence; and (ii) has been disclosed by Seller only
to employees and consultants having a "need to know" the contents thereof in
connection with the performance of their duties to Seller.
(J) All personnel, including employees, agents, consultants and
contractors, who have contributed to or participated in the conception,
reduction to practice or development of the Technical Documentation, Transferred
Intellectual Property and Products on behalf of Seller either: (i) have been
party to a "work-for-hire" arrangement or agreement with Seller, in accordance
with applicable federal and state law, that has accorded Seller full, effective,
exclusive and original ownership of, and all right, title and interest in and
to, all tangible and intangible property thereby arising; or (ii) have executed
appropriate instruments of assignment in favor of Seller as assignee that have
conveyed to Seller full, effective and exclusive ownership of all right, title
and interest in and to all tangible and intangible property arising thereby.
SECTION 3.13 ADEQUACY OF TECHNICAL DOCUMENTATION.
The Technical Documentation includes the source code, system documentation,
statements of principles of operation and schematics for all of the Intellectual
Property, as well as any pertinent commentary or explanation, including any
commentary contained in any source code, that may be necessary to render such
materials understandable to Buyer and, with respect to any Software, usable by a
trained computer programmer.
SECTION 3.14 INTELLECTUAL PROPERTY RIGHTS GRANTED TO SELLER.
(A) Schedule 3.14(a) lists each license, sublicense, agreement and
permission by which Seller uses or has right, prospective rights to such rights
or interests in any Intellectual Property owned by a third party. Seller has
made available to Buyer correct and complete copies of all such licenses,
sublicenses and agreements (as amended to date). The Seller has not
obtained any such rights in any Intellectual Property under any oral license,
sublicense, agreement or permission.
(B) Seller has obtained the full, unrestricted and legal right and
license to use, make, have made, copy, publicly display, publicly perform,
modify and distribute the third-party Intellectual Property contained in the
Transferred Intellectual Property and Technical Documentation pursuant to the
Assumed License Agreements. Except as set forth on Schedule 3.14(b), to Seller's
knowledge, the Transferred Intellectual Property and the Technical Documentation
contain no other programming, materials or Intellectual Property in which any
third party may claim superior, joint or common ownership, including any right
or license. The Transferred Intellectual Property and the Technical
Documentation do not contain derivative works, reproductions or copies of any
programming or materials not owned in their entirety by Seller and included in
the Transferred Assets.
SECTION 3.15 THIRD-PARTY INTERESTS IN INTELLECTUAL PROPERTY.
Schedule 3.15 identifies each license, sublicense, agreement and permission
by which a third-party uses or has rights, prospective rights to such rights or
interests in any Intellectual Property or Technical Documentation owned by
Seller. Seller has made available to Buyer correct and complete copies of all
such agreements (as amended to date). The Seller has not granted any such rights
in any Intellectual Property under any oral license, sublicense, agreement or
permission. The licenses and sublicenses set forth on Schedule 3.15 constitute
only end-user agreements, each in a standard form previously disclosed to Buyer
and each of which grants the end-user thereunder solely the non-exclusive right
and license to use an identified Intellectual Property and related user
documentation, for internal purposes only. There are no contracts, agreements,
licenses and other commitments and arrangements in effect with respect to the
marketing, distribution, licensing, or promotion of the Inventory, the Technical
Documentation, the Transferred Intellectual Property or the Products by any
independent sales person, distributor, sublicensor or other re-marketer or sales
organization.
SECTION 3.16 MAJOR VENDORS AND CUSTOMERS.
Schedule 3.16 lists each third-party licensor, developer, re-marketer,
distributor and supplier of property or services to, and each licensee, end-user
or customer of, the Business to whom Seller paid or billed in the aggregate
$5,000 (in cash, stock, services, debt or other consideration) or more during
2005, together with, in each case, the amount paid or billed during such period.
The consummation of the Transaction will not result in the loss of any
significant customer, potential customer or vendor of the Business.
SECTION 3.17 ASSUMED CONTRACTS.
(A) Seller has made available to Buyer true and complete copies of
each Assumed Contract that is in written form, and true and complete written
summaries of each Assumed Contract that is oral. Each of the Assumed Contracts
constitutes the valid and legally binding obligation of Seller and of the other
parties thereto, and is enforceable in accordance with its terms. Each of the
Assumed Contracts constitutes the entire agreement of the respective parties
thereto relating to the subject matter thereof. All obligations required to be
performed under the terms of the Assumed Contracts by the date hereof have been
performed. All obligations required to be performed under the terms of the
Assumed Contracts by the Closing Date shall have been performed. No act or
omission has occurred or failed to occur which, with the giving of notice, the
lapse of time or both would constitute a default under any of the Assumed
Contracts or permit termination, modification or acceleration thereunder, and
each of the Assumed Contracts is in full force and effect without default on the
part of Seller and, to Seller's knowledge, of the other parties thereto.
(B) Except for the Approvals, none of the Assumed Contracts requires
consent or waiver for its assignment to and assumption by Acquisition Sub.
(C) Except for this Agreement, the Assumed Contracts, the Plans (as
defined in Section 3.21), and any agreements identified in Schedule 2.2(j),
there are no: (i) contracts or commitments affecting the use or value of the
Business or any of the Transferred Assets; (ii) agreements, licenses or
commitments with respect to Transferred Intellectual Property or affecting the
Business or requiring future performance by Seller; (iii) collective bargaining
agreements or other contracts or commitments to or with any labor unions or
other employee representatives, groups of employees, works councils or the like;
(iv) employment contracts or other contracts, agreements or commitments to or
with individual current, former or prospective employees, consultants or agents;
or (v) joint ventures or other contracts or commitments providing for payments
based in any manner on the revenues or profits of Seller, the Business or any
Transferred Asset.
SECTION 3.18 WARRANTIES.
All Products sold by the Seller on or before the date hereof have been in
conformity with written warranties and commitments and express and implied
warranties of Seller. As of December 31, 2005, the Seller had no Liability for
replacement of such Products or other damages in connection therewith, except to
the extent of any warranty reserve set forth on the Financial Statements, which
warranty reserve is adequate to cover the amount of all reasonably anticipated
warranty-related claims for Products sold on or before December 31, 2005. As of
the Closing Date, the Seller will have no Liability for replacement of such
Products or other damages in connection therewith, except to the extent of any
warranty reserve set forth on the Final Balance Sheet, which warranty reserve
will be adequate to cover the amount of all reasonably anticipated
warranty-related claims for Products sold on or before the Closing Date. No
Product sold by the Seller is subject to any contractual guaranty, warranty or
other indemnity beyond the applicable standard terms and conditions of sale or
license. Seller has heretofore made available to Buyer copies of the standard
terms and conditions of sale or license used by the Seller, which contain all
applicable guaranty, warranty and indemnity provisions.
SECTION 3.19 TAXES.
Except as set forth on Schedule 3.19:
(A) Seller (and each affiliated, unitary or combined group of which
Seller is or has been a member) has timely filed all material federal, state,
local and foreign income and franchise Tax Returns, and all other material Tax
Returns that are required to be filed by it on or before the date hereof, and
all Taxes shown on any Tax Return have been paid, and the Financial Statements
reflect an adequate accrual, based on the facts and circumstances existing as of
the respective dates thereof, for all Taxes payable by Seller through the
respective dates thereof;
(B) there are no deficiencies for any Taxes proposed, asserted or
assessed against Seller, no requests for waivers of the time to assess any Taxes
are pending, and no power of attorney with respect to any Taxes has been
executed or filed with any taxing authority;
(C) Seller has complied with all applicable Laws relating to the
payment and withholding of material Taxes and has withheld and paid all material
Taxes required to have been withheld and paid in connection with amounts paid or
owing to any employee, independent contractor or other Person;
(D) there are no Encumbrances for Taxes (other than Permitted
Encumbrances set forth on Schedule 3.19) on the assets of Seller;
(E) Seller is not bound by any agreement (either with any Person or
any taxing authority) with respect to Taxes that will remain in effect following
Closing;
(F) Seller has not constituted either a "distributing corporation" or
a "controlled corporation" (within the meaning of Section 355(a)(1)(A) of the
Code) in a distribution of stock qualifying for tax-free treatment under Section
355 of the Code (i) in the two (2) years prior to the date of this Agreement or
(ii) in a distribution which could otherwise constitute part of a "plan" or
"series of related transactions" (within the meaning of Section 355(e) of the
Code) in conjunction with the Transaction;
(G) Seller has never been a member of an affiliated, unitary or
combined group of corporations (within the meaning of Section 1504 of the Code
and any analogous provision of state, local or foreign Law) other than the
affiliated group of which Seller is the common parent;
(H) Seller has not filed a consent pursuant to the provisions of
Section 341(f) of the Code (or any corresponding provision of state or local
Law) or agreed to have Section 341(f)(2) of the Code (or any corresponding
provision of state or local Law) apply to any disposition of any asset owned by
Seller;
(I) Seller has not agreed to make, nor is required to make, any
adjustment under Section 481(a) of the Code or any similar provision of state,
local or foreign Law by reason of a change in accounting methods or otherwise;
(J) no property owned by Seller is (i) property required to be treated
as being owned by another Person pursuant to the provisions of Section 168(f)(8)
of the Internal Revenue Code of 1954, as amended, and in effect immediately
prior to the enactment of the Tax Reform Act of 1986, (ii) "tax-exempt use
property" within the meaning of Section 168(h)(1) of the Code, (iii)
"tax-exempt bond financed property" within the meaning of Section 168(g) of the
Code, or (iv) "limited use property" (as that term is used in Rev. Proc. 76-30);
(K) no audit or other administrative or court proceedings are pending
with respect to Taxes of Seller and no notice thereof has been received; and no
issue has been raised by any taxing authority in any presently pending or prior
audit that could have a Material Adverse Effect on Seller for any period after
Closing;
(L) no Claim has been made by a taxing authority in a jurisdiction
where Seller does not file Tax Returns that Seller is or may be subject to
taxation in that jurisdiction;
(M) Seller is not a party to any contract, agreement or other
arrangement which provides for the payment of any amount which would not be
deductible by reason of Section 280G of the Code; and
(N) Seller has made available to Buyer true and complete copies of (i)
all federal and state income Tax Returns of Seller (or the portion of any
affiliated, unitary or combined Tax Return relating to Seller) for the preceding
three (3) taxable years, and (ii) any audit report issued within the last three
(3) years (or otherwise with respect to any audit or proceeding in progress)
relating to Taxes of Seller.
SECTION 3.20 EMPLOYMENT MATTERS.
Except as set forth on Schedule 3.20: (a) Seller is not a party to or bound
by any collective bargaining or similar agreement; (b) during the three-year
period preceding the date hereof, the Business has not experienced any strikes,
grievances or Claims of unfair labor practice; (c) Seller has no knowledge of
any organizational effort presently being made or threatened by or on behalf of
any labor union with respect to the employees of the Business; (d) during the
three-year period preceding the date hereof, there has not been, and there is
not presently pending or existing or, to Seller's knowledge, threatened, any
strike, work stoppage, labor arbitration or proceeding in respect of the
grievance of any employee, any application or complaint filed by an employee or
union with the National Labor Relations Board or any comparable Governmental
Entity, organizational activity or other labor dispute against the Business or
its premises; (e) no application for certification of a collective bargaining
agent is pending or, to Seller's knowledge, threatened; (f) there is no lockout
of any employees by the Business; (g) there are no Claims currently pending or,
to Seller's knowledge, threatened, against Seller alleging the violation of any
Laws relating to employment, equal employment opportunity, nondiscrimination,
immigration, wages, hours, benefits, collective bargaining, the payment of
social security and similar Taxes, occupational safety and health and plant
closing (collectively, "EMPLOYMENT LAWS"), or any other Claim whatsoever,
whether based in tort, contract or Law, arising out of or relating in any way to
a Person's employment (actual or alleged), application for employment or
termination of employment with Seller and, to the Seller's knowledge, there is
no basis for any such Claim; (h) Seller has not been found liable for the
payment of Taxes, fines, penalties or other amounts, however designated, for
failure to comply with any Employment Laws, and, to the Seller's knowledge,
there is no basis for any such Liability; and (i) Seller has paid all amounts of
compensation due to its employees and former employees and has properly withheld
and reported Taxes on the same.
SECTION 3.21 EMPLOYEE BENEFITS.
(A) Schedule 3.21(a) lists all formal or informal, written or
unwritten, employee benefit plans and collective bargaining, employment or
severance agreements or other similar arrangements which the Seller, or any
ERISA Affiliate, has ever sponsored, maintained, or to which contributions are
made, or for which obligations have been incurred, for the benefit of employees
of the Seller or an ERISA Affiliate, including, without limitation, (1) any
"employee benefit plan" (within the meaning of Section 3(3) of ERISA) (the
"BENEFIT PLANS"), (2) any profit-sharing, incentive compensation (whether cash
or equity), commission, deferred compensation, bonus, stock option, stock
purchase, pension, retainer, consulting, retirement, severance, welfare or
incentive plan, agreement or arrangement, (3) any plan, agreement or arrangement
providing for "fringe benefits" or perquisites to employees, officers, directors
or agents, including but not limited to benefits relating to automobiles, clubs,
vacation, child care, parenting, sabbatical, sick leave, medical, dental,
hospitalization, life insurance and other types of insurance, and (4) any
employment agreement. The plans, agreements and arrangements described in this
Section 3.21 are referred to herein as "PLANS". Copies of all written Plans and
written descriptions of all unwritten Plans have been provided or made available
to Buyer.
(B) None of the Plans is (i) a plan subject to Title IV of ERISA or
Section 412 of the Code, (ii) a "multiemployer plan" (within the meaning of
Section 3(37) of ERISA), (iii) a "multiple employer plan" (within the meaning of
Section 3(40) of ERISA or Section 413(c) of the Code), (iv) a "voluntary
employees' beneficiary association" (within the meaning of Section 501(c)(9) of
the Code), or (v) a "multiple employer welfare arrangement" (within the meaning
of Section 3(40)(A) of ERISA).
(C) Neither the Seller nor any ERISA Affiliate has ever contributed
to, or had an obligation to contribute to, any plan subject to Title IV of ERISA
or Section 412 of the Code, any "multiemployer plan" (within the meaning of
Section 3(37) of ERISA), any "multiple employer plan" (within the meaning of
Section 3(40) of ERISA or Section 413(c) of the Code), any "voluntary employees'
beneficiary association" (within the meaning of Section 501(c)(9) of the Code),
or any "multiple employer welfare arrangement" (within the meaning of Section
3(40)(A) of ERISA).
(D) Each Plan has been administered in accordance with: (i) the terms
of all applicable governing documents; (ii) the applicable provisions of ERISA,
the Code and all other Laws; and (iii) the terms of all applicable employment,
collective bargaining and other agreements. Except as set forth in Schedule
3.11, there are no actions, suits, proceedings, disputes, Claims or
investigations pending or, to Seller's knowledge, threatened against or
involving any Plan, and there are no investigations by any Governmental Entity
or other Claims (except routine claims for benefits payable in the normal
operation of the plan) pending or threatened against or involving any Plan or
asserting any rights to benefits under any Plan.
(E) All contributions to, and payments from, the Plans that may have
been required to be made in accordance with such plans and, when applicable,
Section 302 of ERISA or Section 412 of the Code, have been timely made. All such
contributions to the Plans, and all payments under the Plans for any period
ending before the Closing Date that are not yet, but will
be, required to be made with respect to the employees of the Business, are
disclosed on Schedule 3.21(e). Seller has funded or will fund each Plan in
accordance with its terms through the Closing Date, including the payment of
applicable premiums on any insurance contract funding a Plan for coverage
provided through the Closing Date.
(F) No "prohibited transaction," as defined in Section 406 of ERISA
and Section 4975 of the Code, has occurred in respect of any Plan, and no civil
or criminal action brought pursuant to Part 5 of Title I of ERISA is pending or,
to Seller's knowledge, threatened in writing or orally against any fiduciary of
any Plan.
(G) All of the Plans that are intended to qualify under Section 401(a)
of the Code have received favorable determination letters from the Internal
Revenue Service to the effect that such plans are so qualified. No determination
letter with respect to any such Plan has been revoked nor has revocation of a
determination letter been threatened. No Plan has been amended since the date of
its most recent determination letter or application therefor in any respect
which would adversely affect its qualification or materially increase its cost,
and no Plan has been amended in a matter that would require security to be
provided in accordance with Section 401(a)(29) of the Code.
(H) Except as set forth on Schedule 3.21(h), to Seller's knowledge,
there have been no statements or communications made or materials provided to
any current or former employee by any Person which constitutes a contract of or
binding obligation on Seller to provide for any pension, welfare or other
insurance-type benefits to any such employee or former employee, whether before
or after retirement, other than benefits under the Plans.
(I) Except as set forth in Schedule 3.21(i) or as expressly set forth
in this Agreement, no Transferred Employee will become entitled to any bonus,
retirement, severance, job security or similar benefit or any enhanced benefit
solely as a result of the Transaction.
(J) There are no unfunded Liabilities of any kind with respect to any
employee, whether or not arising under a Plan (including Liabilities arising
from any Law, contract, custom, Plan with respect to severance of employment).
(K) There is no liability whatsoever with respect to, or in any way
related to, any employee benefit arrangement, the Plans, or the Benefit Plans,
which the Buyer shall assume, or could reasonably be expected to assume (by
operation of law or otherwise), as part of the transactions contemplated by this
Agreement or otherwise.
(L) "ERISA AFFILIATE" means any Person that is a member of "controlled
group of corporations" with, or is under "common control" with, or is a member
of the same "affiliated service group" with the Seller, as defined in Section
414 of the Code.
SECTION 3.22 ENVIRONMENTAL MATTERS.
(A) Seller has complied in all material respects with all
Environmental Laws, and no Claim or investigation has been filed or commenced
against Seller or the Business alleging such failure, nor does Seller know of
any valid basis for such a Claim.
(B) Except as set forth in Schedule 3.22, the Business does not have
any Liability (and the Business has not handled, used, stored, recycled or
disposed of any Hazardous Substance, arranged for the disposal of any Hazardous
Substance, exposed any employee or other Person to any Hazardous Substance or
hazardous condition, or owned or operated any property or facility in any
manner, in each case that could reasonably be expected to form the basis for any
present or future Claim or investigation giving rise to any such Liability) for
damage or remediation to any site, location or body of water (surface or
subsurface), or for any illness of or personal injury to any employee or other
Person, under any Environmental Law.
SECTION 3.23 INSURANCE.
Annexed hereto as Schedule 3.23 is a list of all insurance policies
covering the ownership and operations of the Business or the Transferred Assets,
reflecting the policies' terms, identity of insurers, amounts and coverage. Such
insurance provides coverage for such risks, and in such amounts, as are
reasonable and customary for businesses and assets of the same nature and size
as the Business and the Transferred Assets. All of such policies, or similar
replacement policies, are now and will be until Closing in full force and effect
with no premium arrearages.
SECTION 3.24 SUBSEQUENT CHANGES.
Since December 31, 2005, there has not occurred any event, condition or
change in the operations, condition (financial or otherwise) or assets of the
Business that has had, or would at a later date have, a Material Adverse Effect.
Without limiting the generality of the foregoing, since December 31, 2005,
except as set forth on Schedule 3.24, neither Seller nor any Seller Subsidiary
has:
(A) sold, leased, transferred, pledged, encumbered or assigned any of
the assets of the Business outside the Ordinary Course;
(B) entered into any agreement, contract, lease or license (or series
of related agreements, contracts, leases, and licenses) other than Ordinary
Course sales and purchase orders;
(C) accelerated, terminated, modified or canceled any Assumed Contract
except in the Ordinary Course, or materially modified the Business's backlog;
and to Seller's knowledge, no other party has done so as a result of any default
by Seller;
(D) made any capital expenditure (or series of related capital
expenditures) involving more than $10,000;
(E) made any capital investment in, any loan to, or any acquisition of
the securities or assets of, any other Person;
(F) issued any note, bond or other debt security or created, incurred,
assumed or guaranteed any indebtedness for borrowed money or capitalized lease
obligation;
(G) delayed or postponed the payment of accounts payable or other
Liabilities, or accelerated the payment of any accounts receivable, outside the
Ordinary Course;
(H) canceled, compromised, waived or released any material right or
Claim (or series of related rights and Claims) outside the Ordinary Course;
(I) granted any license or sublicense of any rights under or with
respect to any Intellectual Property outside the Ordinary Course;
(J) experienced any material damage, destruction or loss to the assets
of the Business not covered by insurance;
(K) granted any increase in the base compensation of any employee or
made any other material change in employment terms for any employee, except for
normal compensation increases made in the Ordinary Course; or
(L) entered into any commitment to do any of the foregoing.
SECTION 3.25 RELATED-PARTY TRANSACTIONS.
Except as disclosed in Schedule 3.25, neither Seller nor any Seller
Affiliate is a party to any contract, agreement, license, lease or arrangement
with, or any other commitment to, directly or indirectly: (a) any stockholder,
director, officer, Affiliate or salaried employee of Seller; or (b) any Person
in which any such stockholder, director, officer or salaried employee has a
material equity or participating interest.
SECTION 3.26 INVENTORY.
All of the Inventory has been costed and valued, and presented in the 2005
Audit and will have been costed and valued and presented in the Final Balance
Sheet, in accordance with GAAP. All of the Inventory is of good and merchantable
quality and is saleable and useable in the Ordinary Course.
SECTION 3.27 FINDERS' FEES.
There is no investment banker, broker, finder or other intermediary who has
been retained by or is authorized to act on behalf of Seller, any Seller
Subsidiary or Seller Affiliate who might be entitled to any fee or commission
from Buyer or any Affiliate of Buyer in connection with the Transaction.
SECTION 3.28 DISCLOSURE.
The provisions of this Agreement and the Schedules with respect to Seller,
and the provisions of all other documents and information furnished by Seller
pursuant hereto, do not include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements made herein
and therein not misleading.
SECTION 3.29 CONVERTIBLE NOTE AND SHARES.
Seller and each Seller Shareholder acknowledge that the Convertible Note
and the Shares have not been registered under the Securities Act and accordingly
may not be transferred by sale, gift, pledge or otherwise unless: (i) a
registration statement with respect to the transfer of the Convertible Note or
the Shares shall be in effect under the Securities Act; or (ii) the transferor
shall have obtained an opinion of counsel and/or other documentation related to
such transfer, in form and content satisfactory to the Company and its counsel,
evidencing that the transfer is exempt from the registration requirements of the
Securities Act, is in compliance with applicable state securities law, and will
not result in any violation of the Securities Act or any other applicable law.
The Convertible Note is being acquired by the Seller without a view to resale in
connection with any distribution thereof within the meaning of the Securities
Act, other than a subsequent transfer of the Convertible Note to the beneficial
owners of Seller, and each Seller Shareholder acknowledges and represents and
warrants that the Convertible Note will not thereafter be transferred except in
accordance with the provisions of this Section 3.29 and that the Shares will not
be transferred or sold except in accordance with the Registration Statement
contemplated by Section 5.19 of this Agreement.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF BUYER
As of the date hereof and (except as otherwise expressly stated herein) as
of the Closing, Buyer represents and warrants to Seller and each Seller
Shareholder as follows:
SECTION 4.1 ORGANIZATION AND POWER.
Each of Buyer and Acquisition Sub is a corporation duly organized, validly
existing and in good standing under the Laws of the State of Delaware. Each of
Buyer and Acquisition Sub has all requisite corporate power and authority to
enter into this Agreement and the Closing Documents, to perform their
obligations hereunder and thereunder, to own, lease and operate their assets,
and to carry on their businesses as now being conducted.
SECTION 4.2 AUTHORIZATION.
Each of Buyer and Acquisition Sub has full corporate power and authority to
execute and deliver this Agreement and each Closing Document, and to perform
their obligations hereunder and thereunder. The execution, delivery and
performance by Buyer and Acquisition Sub of this Agreement and each Closing
Document have been duly and validly authorized by all necessary corporate action
on the part of Buyer and Acquisition Sub, and no additional corporate
authorization or consent is required in connection therewith.
SECTION 4.3 APPROVALS.
Except for the approval and consent of JPMorgan Chase Bank, no consent,
approval, waiver, authorization or novation is required to be obtained by Buyer
or Acquisition Sub from, and no notice or filing is required to be given by
Buyer or Acquisition Sub to or made by Buyer or Acquisition Sub with, any
Governmental Entity or other Person in connection with the execution, delivery
and performance by each of Buyer and Acquisition Sub of this Agreement and each
Closing Document and the consummation of the Transaction.
SECTION 4.4 NON-CONTRAVENTION.
The execution, delivery and performance by Buyer and Acquisition Sub of
this Agreement and each Closing Document, and the consummation of the
Transaction, do not and will not: (a) violate any provision of the articles of
incorporation, bylaws or other organizational documents of each of Buyer and
Acquisition Sub; (b) conflict with, or result in the breach of, or constitute a
default under, or result in the termination, cancellation or acceleration
(whether after the filing of notice or the lapse of time or both) of any right
or obligation of Buyer or Acquisition Sub under, any agreement, contract, lease,
sublease, arrangement, commitment or license to which Buyer or Acquisition Sub
is a party or by which any of their assets are bound; or (c) violate or result
in a breach of or constitute a default under any Law, judgment, injunction,
order, decree or other restriction of any Governmental Entity to which Buyer or
Acquisition Sub is subject.
SECTION 4.5 BINDING EFFECT.
This Agreement and each Closing Document, when executed and delivered by
Buyer, Acquisition Sub and Seller, will constitute valid and legally binding
obligations of Buyer and Acquisition Sub, enforceable against each of Buyer and
Acquisition Sub in accordance with their respective terms, subject to
bankruptcy, insolvency, reorganization, moratorium and similar Laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
SECTION 4.6 FINDERS' FEES.
There is no investment banker, broker, finder or other intermediary that
has been retained by or is authorized to act on behalf of Buyer or any Affiliate
of Buyer who might be entitled to any fee or commission from Seller or any
Affiliate of Seller in connection with the Transaction.
SECTION 4.7 DISCLOSURE.
The provisions of this Agreement with respect to Buyer, and the provisions
of all other documents and information furnished by Buyer pursuant hereto, do
not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements herein and therein not
misleading.
ARTICLE V. CERTAIN COVENANTS
SECTION 5.1 ACCESS.
Prior to Closing, Seller will permit Buyer and its representatives to have
access, during regular business hours and upon reasonable advance notice, to the
Books and Records of Seller relating to the assets, Liabilities and operations
of the Business, to Seller's employees and to the locations at which the
Business is conducted or at which such Books and Records are located, subject to
reasonable security regulations of Seller and any Laws. Seller will furnish, or
cause to be furnished, to Buyer any financial and operating data and other
information that is available with respect to the Business as Buyer from time to
time reasonably requests, and will instruct its employees, counsel, independent
accountants and financial advisors to cooperate with Buyer in its investigation
of the Business.
SECTION 5.2 CONDUCT OF BUSINESS.
(A) During the period from the date hereof to Closing, except as
otherwise contemplated by this Agreement or as Buyer otherwise consents in
writing, Seller will conduct the Business in the Ordinary Course and without
limiting the generality of the foregoing will not:
(I) incur or guaranty any indebtedness other than trade payables
incurred in the Ordinary Course;
(II) incur, create or assume any Encumbrance (other than a
Permitted Encumbrance) on any assets, other than in the Ordinary Course;
(III) acquire or dispose of any assets, other than in the
Ordinary Course;
(IV) make any change of accounting or accounting practice,
procedure or policy;
(V) enter into any agreement, contract, lease or license (or
series of related agreements, contracts, leases, and licenses) other than those
in the Ordinary Course or those described in Schedule 5.2;
(VI) accelerate, terminate, modify or cancel any Assumed
Contract, or materially modify the Business's backlog;
(VII) make any capital expenditure (or series of related capital
expenditures) involving more than $10,000;
(VIII) fail to maintain the Transferred Assets that are tangible
and all parts thereof in as good working order and condition as at present,
ordinary wear and tear excepted;
(IX) fail to keep in full force and effect its current insurance
policies or other comparable insurance affecting the Business or the Transferred
Assets;
(X) make any capital investment in, any loan to, or any
acquisition of the securities or assets of, any other Person;
(XI) issue any note, bond or other debt security or create,
incur, assume or guarantee any indebtedness for borrowed money or capitalized
lease obligation;
(XII) delay or postpone the payment of accounts payable or other
Liabilities, or accelerate the payment of any accounts receivable, outside of
Ordinary Course;
(XIII) cancel, compromise, waive or release any material right or
Claim (or series of related rights and Claims) outside the Ordinary Course;
(XIV) dispose of, license or permit to lapse any rights in any
Transferred Intellectual Property;
(XV) grant any increase in the base compensation of any of its
employees or make any other material change in benefit plans or employment terms
for any of its employees;
(XVI) pay or distribute any cash outside of the Ordinary Course;
or
(XVII) enter into any commitment to do any of the foregoing.
(B) During the period from the date hereof to Closing, Seller will use
commercially reasonable efforts to preserve the Business and the Transferred
Assets intact and to preserve for Buyer its relationship with licensors,
developers, consultants, re-marketers, suppliers, distributors, customers,
employees and others having regular business relations with it. If, during the
period from the date hereof to Closing, the Seller desires to terminate the
employment of any salaried employee, it shall give the Buyer five (5) business
days' prior written notice before making such termination.
SECTION 5.3 REASONABLE EFFORTS; FURTHER ASSURANCES.
(A) During the period from the date hereof to Closing, Seller and
Buyer will each cooperate and use commercially reasonable efforts to fulfill the
conditions precedent to its own and the other party's obligations hereunder.
(B) Seller and Buyer will cooperate and use their respective
commercially reasonable efforts to comply with all Laws in furtherance of the
Transaction, including the execution of additional agreements, instruments and
documents that may be required by local Law. Subject to the provisions hereof,
from time to time before and after the Closing Date, each party will promptly
execute, acknowledge and deliver any other assurances or documents
reasonably requested by the other party and necessary for the other party to
satisfy its obligations hereunder or to obtain the benefits contemplated hereby.
SECTION 5.4 BUSINESS NAME CHANGE.
In furtherance of the purchase and sale of the Transferred Assets
hereunder, Seller will cause the business name of Seller and any Seller
Affiliate to be changed, effective as of the Closing Date, to a name completely
dissimilar to "McDowell Research" and thereafter will not adopt, use, cause to
be used or approve or sanction the use of such names, the name "McDowell
Research" or any other name so similar as to cause confusion or create a
likelihood of confusion with the name McDowell Research or any derivation
thereof, or any other trade name or assumed name comprising the Transferred
Assets. Buyer consents to the use of MRC by Seller or any Seller Affiliate after
the Closing Date.
SECTION 5.5 EXCLUSIVITY.
(A) From the date of this Agreement until September 30, 2006 (the "NO
SHOP PERIOD"), or such earlier date as this Agreement is terminated under
Section 9.1 hereof:
(I) Buyer will have the exclusive right to negotiate with Seller
with respect to a Purchase Transaction;
(II) Seller will and will cause each Affiliate and representative
of Seller to: (A) terminate all current discussions and negotiations regarding a
Purchase Transaction with any party other than Buyer or Buyer's Affiliates; and
(B) not seek or initiate proposals or offers from, enter into, continue or
engage in discussions or negotiations with, or furnish information to any party
other than Buyer or Buyer's Affiliates relating to a Purchase Transaction.
(B) For purposes of this Section 5.5, "PURCHASE TRANSACTION" means (i)
any direct or indirect acquisition, whether by purchase, merger, consolidation,
stock sale (primary or secondary) or any other structure which would result in
the sale of any part of Seller's capital stock, assets or business, in either
one or a series of transactions; or (ii) any arrangement whereby effective
operating control of Seller's assets, consolidated business or a substantial
portion thereof is granted to another party.
(C) During the No-Shop Period, Seller will promptly notify Buyer of
the existence of any proposal or communication it receives from any person
concerning not only a Purchase Transaction but also any transaction similar to
that described in subsection (a) above for any part of Seller's capital stock,
assets or business.
(D) Buyer and Seller agree that the certain Letter of Intent between
Buyer and Seller dated November 18, 2005, as supplemented by Buyer letter dated
January 20, 2006, is hereby terminated and superseded, in its entirety, by the
terms of this Agreement.
SECTION 5.6 CONFIDENTIALITY.
(A) Seller and Buyer (each, the "RECEIVING PARTY") hereby covenant and
agree, each on behalf of itself and on behalf of its Affiliates, that from and
after the Closing Date, Receiving Party and its Affiliates will not (unless
legally compelled to do so) disclose, give, sell, use or otherwise divulge any
Confidential Information of the other party (the "DISCLOSING PARTY") or permit
their respective employees, officers, directors or advisors to do the same. If
Receiving Party or its Affiliates, or any of their respective employees,
officers, directors or advisors become legally compelled to disclose any
Confidential Information, Receiving Party shall provide Disclosing Party with
prompt written notice of such requirement so that Disclosing Party may seek a
protective order or other remedy or waive compliance with this Section 5.6. In
the event that such protective order or other remedy is not obtained, or
Disclosing Party waives compliance with this Section 5.6, Receiving Party or its
Affiliates, as applicable, shall furnish only that portion of Confidential
Information which is legally required to be provided and exercise its
commercially reasonable efforts to obtain assurances that appropriate
confidential treatment will be accorded Confidential Information. The
confidentiality and restrictive use obligations under this Section 5.6 shall not
apply to information which is independently developed by Receiving Party or its
Affiliates after Closing without the use or benefit of any information that
would otherwise be Confidential Information as shown by records maintained in
the ordinary course of the developing party's business, or to any information
that, at the time of disclosure, is or subsequently becomes available publicly;
provided, however, that such information was not disclosed in breach of this
Agreement by Receiving Party, Receiving Party's Affiliates or their respective
employees, officers, directors or advisors.
(B) Receiving Party, on behalf of itself and on behalf of its
Affiliates and their respective employees, officers, directors or advisors
acknowledges that a breach of its obligations under this Section 5.6 may result
in irreparable injury to Disclosing Party. In the event of the breach by
Receiving Party or any of its Affiliates or their respective employees,
officers, directors or advisors of any of the terms and conditions of this
Section 5.6 to be performed, Disclosing Party shall be entitled, if it so
elects, to institute and prosecute proceedings in any court of competent
jurisdiction, either at law or in equity, to obtain damages for any breach of
this Section 5.6, or to enforce the specific performance thereof by such party
or to enjoin such party from violating the provisions of this Section 5.6 by
seeking a temporary restraining order or similar relief.
(C) Buyer and Seller agree that upon Closing the certain
confidentiality and non-disclosure provisions set forth in that certain Letter
of Intent between Buyer and Seller dated November 18, 2005, will automatically
terminate and be superseded, in their entirety, by the terms of this Agreement.
SECTION 5.7 PUBLIC DISCLOSURE.
Notwithstanding anything herein to the contrary, Seller may not issue or
cause to be issued a press release or similar public announcement or
communication, whether prior or subsequent to Closing, concerning the
Transaction or the execution, performance or terms of this Agreement, unless
specifically approved in advance in writing by Buyer. Seller will cause its
Affiliates to
comply with the terms and conditions of this Section 5.7 and Seller will be
liable for any breach of this Section 5.7 by its Affiliates.
SECTION 5.8 BULK SALES.
If the provisions of Article 6 of the Uniform Commercial Code have not been
repealed in each jurisdiction where any of the Transferred Assets are located,
Seller and Buyer hereby waive compliance with the provisions of Article 6 of the
Uniform Commercial Code in each such jurisdiction that has not repealed such
article and where any of the Transferred Assets are located in connection with
the Transaction. Seller will be responsible for all Liabilities arising out of
the parties' waiver of such compliance.
SECTION 5.9 TAXES.
(A) Responsibility for the preparation and filing of Tax Returns and
the payment of Taxes incurred as a result of the sale and transfer of the
Transferred Assets and the Assumed Liabilities hereunder will be as follows:
(I) Buyer and Seller will each prepare and file such Tax Returns
as may be, respectively, required of them in connection with all excise, sales,
use, value added, transfer, stamp, documentary, filing, recordation or other
similar Taxes incurred as a result of the sale and transfer of the Transferred
Assets and the Assumed Liabilities hereunder in accordance with the form of the
Transaction or as may otherwise be required by a Governmental Entity; provided,
however, that the cost of all such Taxes will be borne by Buyer;
(II) Seller will be responsible for the preparation and filing of
any required income Tax Returns and the payment of all of Seller's income Taxes
incurred as a result of the sale and transfer of the Transferred Assets and the
Assumed Liabilities hereunder;
(III) Seller will be responsible for the preparation and filing
of all Tax Returns and the payment of all other Taxes of any nature incurred in
the Business or relating to the Transferred Assets, the Assumed Liabilities and
the Applicable Employees for the period up to and including the Closing Date;
and
(IV) For the period after the Closing Date, Buyer will be
responsible for the preparation and filing of all Tax Returns and the payment of
all other Taxes of any nature incurred or relating to the Transferred Assets or
the Assumed Liabilities.
(B) Buyer and Seller will provide each other with such cooperation and
information as either of them reasonably may request of the other in connection
with filing any Tax Return, amended return or Claim for refund, determining a
Liability for Taxes or a right to refund of Taxes or preparation for litigation
or investigation of Claims or in connection with any audit. Each of Buyer and
Seller will retain all Tax Returns, schedules and work papers and all material
records or other documents relating to Tax matters of the Business for the
taxable year of Seller ending after the Closing Date and for all previous years,
until the expiration of the statute of limitations of the taxable years to which
such Tax Returns and other documents relate (and, to
the extent notified by the other party in writing, any extensions thereof). Any
information obtained under this Section 5.9(b) will be kept confidential as
contemplated by Section 5.6, except as may be otherwise necessary in connection
with the filing of Tax Returns or Claims for refund or in conducting an audit or
other proceeding related to the payment of Taxes.
(C) If in order to prepare properly documents required to be filed
with Governmental Entities or its financial statements, it is necessary that
either Buyer or Seller be furnished with additional information relating to the
Transferred Assets or the Assumed Liabilities and such information is in the
possession of the other party, such other party will use its reasonable efforts
to furnish such information in a timely manner to the party reasonably requiring
such information, at the cost and expense of the party requiring such
information.
(D) With respect to all Hired Employees, Seller will cause to be
issued IRS Form W-2s for that portion of calendar year 2006 ending on the
Closing Date during which time the Hired Employees were employees of Seller.
Buyer shall have no obligation to issue any IRS Form W-2s to any Hired Employee
for any period on or before the Closing Date.
(E) Seller and Buyer will file or provide to each other such Tax
Returns, forms and other documents as may be required or necessary to minimize
or obtain an exemption from any excise, sales, use, value added, transfer,
stamp, documentary, filing, recordation or other similar Taxes that arise with
respect to the Transferred Assets, or the Assumed Liabilities. Without limiting
the generality of the foregoing, on or before the Closing Date Buyer will
provide Seller with any required sales Tax exemption certificates of Buyer
required in connection with the Transaction.
(F) Notwithstanding any other provision of this Section 5.9, no party
will have access to the other party's federal, state or foreign income Tax
Returns or Books and Records relating thereto.
SECTION 5.10 DETERMINATION AND ALLOCATION OF CONSIDERATION.
Seller and Buyer agree to allocate the Purchase Price in accordance with
Schedule 5.10, which shall be prepared by Buyer, and otherwise in accordance
with Section 1060 of the Code. Buyer will prepare, and Buyer and Seller will
file, an IRS Form 8594 in a timely fashion in accordance with the rules under
section 1060 of the Code and in accordance with Schedule 5.10. The determination
and allocation of the Purchase Price made pursuant to this Section 5.10 will be
binding on Seller and Buyer for all Tax reporting purposes. Neither Seller nor
Buyer shall file any tax return or other document or otherwise take any position
that is inconsistent with the allocation determined pursuant to this Section
5.10.
SECTION 5.11 NON-COMPETITION.
(A) For a period of two (2) years following the Closing Date neither
Seller nor any Seller Affiliate (which includes each of the Seller
Shareholders), will engage directly or indirectly, whether as owner, principal,
stockholder, employee, consultant or in any other capacity, in the business of
acquiring, developing, marketing, selling, distributing, licensing or
maintaining systems and application computer programs competitive with, or
substitutable for, any of the Transferred Intellectual Property or any of the
Products (including derivative works or products created by Buyer), anywhere in
the world, except as a customer or authorized distributor of Buyer or otherwise
with Buyer's consent (which may be withheld in Buyer's sole discretion). Seller,
and each Seller Affiliate, acknowledges and agrees that the current market for
the Transferred Intellectual Property and the Products extends throughout the
entire world and that it is therefore reasonable to prohibit them from competing
with Buyer anywhere in the world.
(B) An investment by Seller or any Seller Affiliate, directly or
indirectly, in less than five percent (5%) of the publicly traded equity
securities of any Person the stock of which is publicly traded will not be
deemed a violation of this Section 5.11.
(C) If any Governmental Entity of competent jurisdiction determines
that the restrictive covenant contained in this Section 5.11, or any part
thereof, is invalid or unenforceable for any reason, the remainder of the
restrictive covenant will not thereby be affected and will be given full force
and effect, without regard to the invalid portion or portions. If any such
Governmental Entity determines that the restrictive covenant contained in this
Section 5.11, or any part thereof, is unenforceable because of the duration or
scope of such covenant, such Governmental Entity will have the power to reduce
such duration or scope and, in its reduced form, such covenant will then be
enforceable and will be given full force and effect.
(D) Seller and each Seller Affiliate, acknowledges and agrees that the
provisions of this Section 5.11, as they apply to Seller and each Seller
Affiliate, are reasonable and supported by adequate consideration, that Buyer
would not have entered into this Agreement without having received the benefit
of the provisions of this Section 5.11, and that any breach of the provisions of
this Section 5.11 would result in substantial and irreparable harm to Buyer and
its Affiliates and, therefore, that Buyer will be entitled to an injunction to
prohibit any such breach or anticipated breach, without the necessity of posting
a bond, cash or otherwise, in addition to all of their other legal and equitable
remedies, including the remedies provided by Article VII.
(E) Seller will cause each Seller Affiliate that is an entity to
comply in all respects with this Section 5.11.
SECTION 5.12 COVENANTS NOT TO SUE OR ASSERT RIGHTS.
Seller hereby covenants not to sue Buyer, its Affiliates or their
successors, assignees or licensees, from and after the Closing Date, for
infringement of any Transferred Intellectual Property. Seller shall not assert
rights, from and after the Closing Date, in any Transferred Intellectual
Property against Buyer, its Affiliates or their successors, assignees or
licensees.
SECTION 5.13 CERTAIN CONTRACTS.
If the Seller fails to disclose any written or oral license, sublicense,
agreement, contract, permission or other understanding to Buyer either in the
course of Buyer's due diligence or in any Schedule hereto, and Buyer later
learns of the same, then Buyer may, in its sole discretion, require
the Seller to assign the same or procure the benefits of the same for Buyer
under Section 2.3(c) hereof.
SECTION 5.14 RISK OF LOSS.
Seller will bear all risk of loss, destruction or damage to any of the
Transferred Assets occurring prior to the Effective Time of the Closing, whether
due to fire, accident or other casualty, willful act, condemnation, riot, act of
God or otherwise, and Buyer will have no responsibility with respect thereto.
SECTION 5.15 REAL ESTATE MATTERS.
Buyer and Seller will use commercially reasonable efforts to reach a
mutually beneficial agreement with the landlord of the Seller's Waco, Texas
office space that will allow the Buyer or Acquisition Sub to continue to operate
the Business out of that facility.
SECTION 5.16 STATEMENT OF TRANSACTION EXPENSES.
Immediately prior to Closing, Seller shall provide Buyer with a reasonably
detailed listing of the aggregate expenses not paid in the ordinary course by
Seller in connection with this Agreement and the consummation of all of the
transactions contemplated hereby, including fees and expenses paid to Seller's
attorneys, accountants and advisors.
SECTION 5.17 ACCOUNTS RECEIVABLE.
From and after the Closing Date, Buyer shall use reasonable efforts to
collect all of Seller's accounts receivable outstanding as of the Closing Date.
Quarterly, commencing on September 30, 2006, Buyer shall provide Seller with a
written summary of its collection activities. To the extent that any accounts
receivable reflected on the Final Balance Sheet remain outstanding on the six
month anniversary of the Closing Date, Buyer shall assign all of its right,
title and interest in and to any such uncollected account receivable and shall
be entitled to set-off such amount against the principal amount due Seller
pursuant to the Convertible Note.
SECTION 5.18 EXCESS WARRANTY CLAIMS.
Buyer and Acquisition Sub shall use commercially reasonable efforts to
resolve favorably all warranty-related Claims for Products sold on or before the
Closing Date that are asserted after the Closing Date. Buyer shall be
responsible for and shall make suitable arrangements for the satisfaction of all
warranty-related Claims for Products sold on or before the Closing Date;
subject, however, to the provision that Seller shall be responsible for the
payment of all services for warranty-related Claims for Products sold on or
before the Closing Date that, in the aggregate, exceed $100,000 for each of the
following periods: Closing Date to December 31, 2006; calendar year 2007; and
calendar year 2008.
SECTION 5.19 REGISTRATION RIGHTS.
Within forty-five (45) days of the Closing Date, the Buyer shall use its
best efforts to prepare and file with the SEC a resale registration statement on
Form S-3 covering the Shares, provided that Form S-3 is available to the Buyer
for such purpose. The Buyer shall take all action necessary or desirable to
qualify to use Form S-3 for the registration of the resale of the Shares. The
Buyer shall be required to file only one registration statement. The holders of
the Convertible Note and the Buyer shall enter into a separate Registration
Rights Agreement in substantially the form attached hereto as Exhibit D,
consistent with the provisions of this Section 5.19, which Registration Rights
Agreement shall contain customary representations and warranties and provisions
regarding indemnification and contribution.
SECTION 5.20 SPLIT-UP OF CONVERTIBLE NOTE.
Buyer acknowledges that for tax planning purposes, Seller may request that
the Convertible Note be split up and distributed proportionately to the Seller
Shareholders and/or their respective spouses. Buyer agrees to facilitate such
distribution subject to compliance with the provisions of Section 3.29.
SECTION 5.21 KALMUS LITIGATION.
Buyer and Seller acknowledge that Seller has been involved with the Kalmus
Litigation and that although the action against Seller has been dismissed
without prejudice on jurisdictional grounds, the Seller has agreed to provide
defense costs for the individuals who remain as defendants in the litigation.
Seller acknowledges that it would be in Buyer's best interests to take control
of the defense of the pending Kalmus Litigation, as well as any future Kalmus
Litigation, including any defense of Seller should litigation in this matter be
recommenced against Seller. Seller and Seller Shareholders shall cooperate with
Buyer in such defense, shall make available to Buyer all records and other
materials reasonably required by Buyer in such defense, and shall have the right
to participate in such defense at Seller's cost, but Buyer shall at all times
control such defense. Seller shall be responsible for and shall, at Buyer's sole
discretion, pay directly or reimburse Buyer for all costs and expenses
(including reasonable attorneys' fees and expenses) incurred by Buyer as a
result of such defense.
SECTION 5.22 RF AMPLIFIERS.
Buyer agrees that prior to Closing, Seller will be ordering and purchasing
amplifiers from its former RF amplifier business in the Seattle, Washington area
at a monthly cost that Seller agrees will not exceed $50,000, which amount
includes rental payments under the Woodinville, Washington lease. Buyer agrees
that Seller shall be permitted to order and purchase those amplifiers for up to
three months without being in violation of Section 5.2.
ARTICLE VI. COVENANTS AS TO CERTAIN EMPLOYMENT MATTERS
SECTION 6.1 EMPLOYEES.
(A) As used herein, the following terms will have the following
respective meanings:
(I) "APPLICABLE EMPLOYEES" means all employees of the Business on
the date hereof, as set forth on Schedule 6.1. Seller will cause
Schedule 6.1 to include the title, current base salary or compensation
and target compensation of each Person listed thereon.
(II) "HIRED EMPLOYEES" means all Applicable Employees, whom Buyer
determines, in its sole discretion, to offer to employ and who accept
employment with Buyer or its Affiliates.
(B) As soon as practicable after the date hereof, Seller will provide
Buyer with access to all Applicable Employees for the purpose of making offers
of employment or offers to become independent contractors, if any, as well as
conducting discussions preparatory thereto. On the Closing Date, Seller will
terminate the employment of each Applicable Employee who has accepted Buyer's
offer of employment or any offer to become an independent contractor and take
all such other actions necessary to allow such Applicable Employee and any
former employee to work for Buyer or its Affiliates in either such capacity.
Seller will also not take any action to prevent Buyer from offering employment
or an independent contractor arrangement to any Applicable Employee or former
employee of Seller. Notwithstanding the foregoing, nothing in this Agreement
will be deemed to require Buyer to hire or engage any Applicable Employee or
former employee at all or on any terms.
(C) With respect to any Applicable Employees, Seller will be
responsible for and will pay any and all severance, retention, termination and
other compensation or benefit payments (if any), damages and costs, and the
applicable Taxes related thereto, which are or may become payable, under Law or
contract.
(D) Seller will be solely responsible for, and Buyer will not have any
Liability with respect to: (i) all compensation and benefits agreements and
arrangements that are not included among the Assumed Contracts; (ii) all
obligations to employees or former employees of Seller (regardless if they are
Hired Employees); (iii) all employee retirement, health, welfare or benefit
plans and programs of Seller; (iv) all obligations with respect to unemployment
compensation and workers' compensation from Claims arising on or before the
Closing Date out of the Claimant's employment by Seller; and (v) except as
provided by Section 6.4, all obligations or liabilities arising under the Worker
Adjustment and Retraining Notification Act, including notification requirements
to employees and appropriate Governmental Entities.
(E) Notwithstanding anything in this Agreement to the contrary, on and
after the Closing Date, Buyer will comply in all respects with the group health
plan continuation coverage requirements of COBRA. Without limiting the
generality of the foregoing, Buyer will comply with all COBRA requirements that
arise as a result of the Transaction or have arisen prior to the
Transaction, including COBRA requirements which could be imposed upon Buyer
under current final or proposed regulations.
(F) Seller and each Hired Employee shall terminate, effective as of
the Closing Date, any employment agreements or arrangements of any sort between
them that are in effect immediately prior to the Closing (and, in each case,
shall take such further actions as are necessary to extinguish any rights
thereunder that might otherwise survive the termination of the underlying
employment agreement or arrangement).
SECTION 6.2 ENFORCEMENT OF RIGHTS.
At all times after Closing, upon request from Buyer, Seller will take all
reasonable actions to enforce the provisions of any employment, independent
contractor or other agreement to which Seller is a party to the extent that
Buyer deems it necessary for the protection of Buyer's rights to the Transferred
Intellectual Property or any other rights acquired by Buyer hereunder,
including, Seller's rights under any non-competition, non-solicitation,
non-disclosure, assignment of invention and similar agreements.
SECTION 6.3 NON-SOLICITATION
During the twenty-four (24) month period immediately following the Closing
Date, without the prior written consent of Buyer, neither Seller nor any Seller
Affiliate (which includes each Seller Shareholder) will, directly or indirectly,
hire or otherwise use or solicit the services of any Person who then is, or who
was during the then-preceding six (6) months, an employee of Buyer or any
Subsidiary of Buyer and who was an employee of Seller or any Seller Affiliate
thereof immediately prior to Closing.
SECTION 6.4 MINIMUM TERMINATION.
Notwithstanding anything in this Agreement to the contrary, Buyer agrees to
employ a sufficient number of Applicable Employees on the Closing Date and
continue their employment for at least sixty (60) days thereafter so that Seller
shall have no liability to any employees of Seller under the Worker Adjustment
and Restraining Notification Act, 29 U.S.C. Sec. 2101, et seq. Buyer expressly
agrees to see that the total number of employees of Seller who do not continue
to be employed by Buyer for at least sixty (60) days after the Closing Date will
be fewer than forty-nine (49) employees, so that any job loss resulting from
this transaction and/or from Buyer's actions after the Closing would involve
less than forty-nine (49) employees.
ARTICLE VII. CONDITIONS TO CLOSING
SECTION 7.1 CONDITIONS TO THE OBLIGATIONS OF BUYER, ACQUISITION SUB AND
SELLER.
The obligations of Buyer, Acquisition Sub and Seller to effect Closing are
subject to the satisfaction or waiver by Buyer and Seller prior to Closing of
each of the following conditions:
(A) NO INJUNCTIONS, ETC. No Governmental Entity will have enacted,
issued, promulgated, enforced or entered any statute, rule, regulation, or
non-appealable judgment, decree, injunction or other final order that is in
effect on the Closing Date and prohibits or prevents Closing or the consummation
of the Transaction.
SECTION 7.2 FURTHER CONDITIONS TO THE OBLIGATION OF BUYER AND ACQUISITION
SUB.
The obligation of Buyer and Acquisition Sub to effect Closing is subject to
the satisfaction by Seller or waiver by Buyer prior to Closing of each of the
following further conditions:
(A) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Seller contained herein will have been true and correct in all material
respects when made, and will be true and correct as of Closing as if made as of
Closing (except that representations and warranties that are made as of a
specific date need be true and correct only as of such date and except that
representations and warranties which are qualified as to materiality shall be
true and correct in all respects as made and not subject to a double materiality
standard), and Buyer will have received a certificate to such effect dated the
Closing Date and executed by a duly authorized officer of Seller.
(B) COVENANTS. The covenants and agreements of Seller to be performed
prior to Closing will have been duly performed in all material respects, and
Buyer will have received a certificate to such effect dated the Closing Date and
executed by a duly authorized officer of Seller.
(C) DUE AUTHORIZATION.
(I) Seller's execution, delivery and performance of this
Agreement and the Closing Documents and Seller's consummation of the
Transaction will have been duly and validly authorized by all
necessary partnership action on the part of Seller and Buyer will have
received the certificate contemplated by Section 7.2(j)(vi) regarding
the same.
(II) Buyer's and Acquisition Sub's execution, delivery and
performance of this Agreement and the Closing Documents and Buyer's
and Acquisition Sub's consummation of the Transaction will have been
duly and validly authorized by all necessary corporate action on the
part of Buyer's and Acquisition Sub's respective boards of directors.
(D) NO MATERIAL ADVERSE CHANGE. Between the date hereof and the
Closing Date, there will not have occurred any event, condition or change
(excluding general economic changes) in the operations, condition (financial or
otherwise) of the Transferred Assets or the Business that has had, or would at a
later date have, a Material Adverse Effect.
(E) EMPLOYEES. Buyer will be satisfied that all employees of the
Seller, who Buyer deems necessary for it to exploit the Transferred Assets, have
agreed to be employed by Buyer, Acquisition Sub or their Affiliates, and Buyer
or Acquisition Sub will have entered into Employment Agreements with Hauke,
Evans, Alexander and Ray Pixley substantially in the forms attached hereto as
Exhibits B-1, B-2, B-3 and B-4, respectively;
(F) REGISTRATION RIGHTS AGREEMENT. Buyer and Seller shall have entered
into the Registration Rights Agreement.
(G) LIEN SEARCHES AND RELEASES. Seller will have delivered to Buyer:
(i) personal property and Intellectual Property searches, in a form reasonably
acceptable to Buyer and dated within a reasonable period of time prior to
Closing, listing all Encumbrances or judgments of record affecting the
Transferred Assets and (ii) duly executed documents sufficient, when filed or
recorded, to release any Encumbrances of any third-party or Affiliate with
respect to the Transferred Assets, other than Permitted Encumbrances.
(H) LEGAL OPINION OF SELLER'S COUNSEL. Naman, Howell, Smith & Lee,
LLP, counsel to Seller, will have furnished to Buyer its written opinion, dated
the Closing Date, in form and substance reasonably satisfactory to Buyer and
which shall contain such opinions as are customary or reasonably requested by
Buyer, including opinions that: (i) Seller is a limited partnership duly formed,
validly existing and in good standing under the Laws of its jurisdiction of
formation and has all requisite partnership power and authority to own, lease
and operate its properties and carry on its business; (ii) Seller has the
requisite partnership power and authority and has taken all partnership action
necessary to execute and deliver this Agreement, the Closing Documents and to
consummate the Transaction; (iii) the Agreement and the Closing Documents have
been duly and validly authorized, executed and delivered by Seller, and this
Agreement and the Closing Documents constitute legal, valid and binding
agreements or obligations of Seller, enforceable against it in accordance with
its terms, except that such enforceability may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights or remedies generally and subject to
general equitable principles (regardless of whether enforcement is sought in a
proceeding at law or in equity); (iv) the execution and delivery of this
Agreement and the Closing Documents by Seller do not, and the consummation of
the Transaction and the fulfillment of the obligations and undertakings
hereunder and thereunder will not, result in any breach or violation of any
provision of: (A) the Certificate of Limited Partnership or Limited Partnership
Agreement of Seller; (B) any material agreement known to such counsel and
applicable to Seller or any of its assets; or (C) any Law applicable to Seller
or the Transferred Assets; except, in the case of material agreements and Laws,
such breaches or violations which could not reasonably be expected individually
or in the aggregate, to have any material adverse effect on the validity or
enforceability of this Agreement and the Closing Documents or a material adverse
effect on the operations or financial condition of Buyer; and (v) to the best of
such counsel's knowledge, except as disclosed in Schedule 3.11, there is no
action, suit, proceeding, arbitration or investigation pending or threatened
against or affecting Seller, the Business or any Transferred Assets, which if
adversely determined could reasonably be expected, individually or in the
aggregate, to have a material adverse effect on the Transferred Assets, the
Transaction or the operations or financial condition of Buyer, nor is there any
judgment, injunction or decree, rule or order of any Governmental Entity or
arbitrator outstanding against Seller, the Business or the Transferred Assets
which could reasonably be expected, individually or in the aggregate, to have
such an effect.
(I) REQUIRED APPROVALS. The Buyer will have obtained the consent and
approval of JPMorgan Chase Bank, and the Seller will have obtained and delivered
to Buyer all Approvals listed on Schedule 7.2(i), each in a form acceptable to
Buyer in its sole discretion.
(J) FINANCING. Buyer will have obtained financing suitable in form and
source and upon terms and conditions satisfactory to Buyer in an amount
sufficient to fund Buyer's payment obligations required by Section 2.6(b)(i) of
this Agreement.
(K) ADDITIONAL CLOSING DELIVERIES. Seller will have delivered to Buyer
the following:
(I) duly executed bills of sale and other appropriate documents
of transfer, in form and substance reasonably acceptable to Buyer,
transferring to Buyer all tangible personal property included in the
Transferred Assets;
(II) duly executed assignments, in form and substance reasonably
acceptable to Buyer, transferring to Buyer all Transferred
Intellectual Property;
(III) subject to the provisions of Sections 2.3, duly executed
assignments or, where necessary, subcontracts, subleases or
sublicenses, in form and substance reasonably acceptable to Buyer,
transferring to Buyer all Assumed Contracts;
(IV) Tax clearance certificates from each U.S. jurisdiction in
which Seller files any corporate Tax Returns (to the extent such
jurisdiction issues such certificates);
(V) a long-form good standing certificate from the Texas
Secretary of State attesting to the subsistence and good standing of
the Seller in such jurisdiction dated no more than two (2) days prior
to the Closing Date;
(VI) a certificate signed by duly authorized officers of Seller
and dated the Closing Date certifying to Buyer (A) as to the
incumbency and genuineness of the signatures of each officer of Seller
executing this Agreement and any Closing Document on behalf of the
Seller, (B) the genuineness of the resolutions (attached thereto)
adopted by Seller authorizing the execution, delivery and performance
of the Agreement and the Closing Documents and the Seller's
consummation of the Transaction, and (C) the genuineness of the
resolutions (attached thereto) of the limited partner of Seller
authorizing the execution, delivery and performance of this Agreement
and the Closing Documents and the Seller's consummation of the
Transaction;
(VII) the certificate contemplated by Section 2.7; and
(VIII) such other instruments or documents, in form and substance
reasonably acceptable to Buyer, as may be necessary to effect Closing.
SECTION 7.3 FURTHER CONDITIONS TO THE OBLIGATION OF SELLER.
The obligation of Seller to effect Closing is subject to the satisfaction
by Buyer or waiver by Seller prior to Closing of each of the following further
conditions:
(A) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Buyer and Acquisition Sub contained herein will have been true and correct in
all material respects when made, and will be true and correct as of Closing as
if made as of Closing (except that representations and warranties that are made
as of a specific date need be true and correct only as of such date and except
that representations and warranties which are qualified as to materiality shall
be true and correct in all respects as made and not subject to a double
materiality standard), and Seller will have received a certificate to such
effect dated the Closing Date and executed by a duly authorized officer of
Buyer.
(B) COVENANTS. The covenants and agreements of Buyer to be performed
prior to Closing will have been duly performed in all material respects, and
Seller will have received a certificate to such effect dated the Closing Date
and executed by a duly authorized officer of Buyer.
(C) PAYMENT. Buyer will have caused the Purchase Price to be paid at
Closing as provided by Section 2.6(b).
(D) LEGAL OPINION OF BUYER'S COUNSEL. Harter, Secrest & Emery LLP,
counsel to Buyer, will have furnished to Seller its written opinion, dated the
Closing Date, in form and substance reasonably satisfactory to Seller and which
shall contain such opinions as are customary or reasonably requested by Seller,
including opinions that: (i) each of Buyer and Acquisition Sub is a corporation
duly incorporated, validly existing and in good standing under the Laws of their
jurisdiction of incorporation and has all requisite corporate power and
authority to own, lease and operate its properties and carry on its business;
(ii) each of Buyer and Acquisition Sub has the requisite corporate power and
authority and has taken all corporate action necessary to execute and deliver
this Agreement, the Closing Documents and to consummate the Transaction; (iii)
the Agreement and the Closing Documents have been duly and validly authorized,
executed and delivered by Buyer and Acquisition Sub, and this Agreement and the
Closing Documents constitute legal, valid and binding agreements or obligations
of Buyer and Acquisition Sub, enforceable against them in accordance with its
terms, except that such enforceability may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights or remedies generally and subject to general
equitable principles (regardless of whether enforcement is sought in a
proceeding at law or in equity); (iv) the execution and delivery of this
Agreement and the Closing Documents by Buyer do not, and the consummation of the
Transaction and the fulfillment of the obligations and undertakings hereunder
and thereunder will not, result in any breach or violation of any provision of:
(A) the Certificate of Incorporation or By-laws of Buyer or Acquisition Sub; (B)
any material agreement known to such counsel and applicable to Buyer or
Acquisition Sub or any of its assets; or (C) any Law applicable to Buyer or
Acquisition Sub or the Transferred Assets; except, in the case of material
agreements and Laws, such breaches or violations which could not reasonably be
expected individually or in the aggregate, to have any material adverse effect
on the validity or enforceability of this Agreement
and the Closing Documents or a material adverse effect on the operations or
financial condition of Buyer or Acquisition Sub; and (v) to the best of such
counsel's knowledge, there is no action, suit, proceeding, arbitration or
investigation pending or threatened against or affecting Buyer or Acquisition
Sub, which if adversely determined could reasonably be expected, individually or
in the aggregate, to have a material adverse effect on the Transferred Assets,
the Transaction or the operations or financial condition of Buyer or Acquisition
Sub, nor is there any judgment, injunction or decree, rule or order of any
Governmental Entity or arbitrator outstanding against Buyer, or Acquisition Sub
which could reasonably be expected, individually or in the aggregate, to have
such an effect.
(E) DUE AUTHORIZATION. Buyer's and Acquisition Sub's execution,
delivery and performance of this Agreement and the Closing Documents and Buyer's
and Acquisition Sub's consummation of the Transaction will have been duly and
validly authorized by all necessary corporate action on the part of Buyer's and
Acquisition Sub's respective boards of directors.
(F) NO MATERIAL ADVERSE CHANGE. Between the date hereof and the
Closing Date, there will not have occurred any event, condition or change
(excluding general economic changes) in the operations, condition (financial or
otherwise) of the Buyer that has had, or would at a later date have, a material
adverse effect on Buyer's ability to perform its obligations under the
Convertible Note.
(G) REGISTRATION RIGHTS AGREEMENT. Buyer and Seller shall have entered
into the Registration Rights Agreement.
(H) LEASE. Buyer as Lessee, and MRC Partners, Ltd., as Lessor, shall
have entered into the Lease Agreement.
(I) ADDITIONAL CLOSING DELIVERIES. Buyer will have delivered to Seller
the following:
(I) such duly executed instruments of assumption and other
instruments or documents, in form and substance reasonably acceptable
to Seller, as may be necessary to effect the assumption by Buyer of
the Assumed Liabilities;
(II) the certificate contemplated by Section 2.7; and
(III) such other instruments or documents, in form and substance
reasonably acceptable to Seller, as may be necessary to effect
Closing.
ARTICLE VIII. INDEMNIFICATION
SECTION 8.1 INDEMNIFICATION BY SELLER AND SELLER SHAREHOLDERS.
Subject to the further provisions of this Article VIII, each of Seller and
each Seller Shareholder will jointly and severally indemnify, defend and hold
harmless Buyer, Acquisition Sub, Buyer's Affiliates, and their respective
directors, officers, attorneys, accountants, agents
and employees and their heirs, successors and assigns (collectively, the "BUYER
INDEMNIFIED PARTIES"), from, against and in respect of all Losses imposed on,
sustained, incurred or suffered by or asserted against any of the Buyer
Indemnified Parties, directly or indirectly relating to or arising out of any of
the following (collectively, "BUYER LOSSES"):
(A) any fact or circumstance that constitutes a breach of any
representation or warranty of Seller contained herein;
(B) any act or omission that constitutes a breach of any covenant or
agreement of Seller contained herein;
(C) any Excluded Liability, including any Liability arising out of the
Kalmus Litigation (including but not limited to any cross-license or similar
arrangement required to resolve such litigation) or any act or omission of
Seller prior to Closing that constituted a breach of Seller's obligations under
any Assumed Contract or that creates any other Liability to a third party;
(D) Any Claim of any kind by any holder of Seller securities or
options to acquire Seller securities;
(E) Except for Assumed Liabilities, any Liability of Seller arising
out of the Business or from the Transferred Assets or Hired Employees, that
arose or arises on or before Closing or that is attributable to facts and
circumstances arising on or before the Closing Date; or
(F) Except for Assumed Liabilities and except as provided in Section
5.9, any Liability of Seller with respect to any of Seller's Taxes for any
period on, before or after the Closing.
SECTION 8.2 INDEMNIFICATION BY BUYER.
Subject to the further provisions of this Article VIII, Buyer will
indemnify, defend and hold harmless Seller, Seller Shareholders, Seller's
Affiliates, and their respective directors, officers, attorneys, accountants,
agents and employees), and their heirs, successors and assigns (collectively,
the "SELLER INDEMNIFIED PARTIES"), from, against and in respect of any Losses
imposed on, sustained, incurred or suffered by or asserted against any of the
Seller Indemnified Parties, directly or indirectly relating to or arising out of
any of the following (collectively, "SELLER LOSSES"):
(A) any fact or circumstance that constitutes a breach of any
representation or warranty of Buyer contained herein;
(B) any act or omission that constitute a breach of any covenant or
agreement of Buyer contained herein;
(C) any Assumed Liability, but only up to the amount of such Assumed
Liability set forth on the Final Balance Sheet; or
(D) any Liability (other than an Excluded Liability) arising from the
Transferred Assets or the Hired Employees that arises from and after the Closing
Date and is attributable to facts and circumstances arising after the Closing
Date.
SECTION 8.3 RIGHT OF OFFSET.
Seller and each holder of the Convertible Note agree that any payments
which may be due to them from Buyer, whether under the Convertible Note or
otherwise, may be used by Buyer at its option, to satisfy any demands for
indemnification asserted against Seller under Section 8.1, and that if so used
by Buyer, such shall be and constitute a complete and absolute set-off against
any such payments which may become due to Seller or any holder of the
Convertible Note from Buyer. Notwithstanding the foregoing, Buyer shall not
exercise its right of offset hereunder until Buyer has established its right to
indemnification in accordance with the procedures of this Article VIII.
SECTION 8.4 INDEMNIFICATION PROCEDURES.
(A) For such time as the Convertible Note remains outstanding, the
Buyer Indemnified Parties' Claims for indemnification under this Article VIII
will be satisfied first by Buyer's exercise of the right of offset against the
Convertible Note, as provided by Section 8.3 of this Agreement, except that
Claims for indemnification arising from actions, suits or other legal
proceedings commenced against an Indemnified Party by a third party will instead
be resolved as provided by this Section 8.4.
(B) In the event that an Indemnified Party has a Claim for
indemnification under this Article VIII, or an action, suit or legal proceeding
for which an Indemnifying Party would be liable to an Indemnified Party
hereunder is commenced against an Indemnified Party by a third party, the
Indemnified Party will (but in no event more than thirty (30) days following
commencement of any such third party action, suit or other legal proceeding)
notify the Indemnifying Party of such Claim and the amount or the estimated
amount thereof to the extent then feasible (which estimate will not be
conclusive of the final amount of such Claim) (the "CLAIM NOTICE"); provided,
however, that no failure or delay by any Indemnified Party in giving any Claim
Notice will relieve any Indemnifying Party from any obligation or liability
under this Agreement, except to the extent that the Indemnifying Party is
prejudiced by such failure or delay.
(C) The Indemnifying Party will have thirty (30) days from the
effective date of the Claim Notice as determined under Section 10.1 of this
Agreement (the "NOTICE PERIOD") to notify the Indemnified Party (i) whether or
not the Indemnifying Party disputes its liability to the Indemnified Party
hereunder with respect to such Claim, and (ii) in the case of a Litigated Claim,
whether or not it desires to defend the Indemnified Party against such Litigated
Claim. All reasonable costs and expenses incurred by the Indemnifying Party in
defending such Litigated Claim and all reasonable costs and expenses of the
Indemnified Party incurred prior to the Indemnifying Party assuming such defense
will be a Liability of, and will be paid by, the Indemnifying Party.
(D) Except as provided in Section 8.4(e) of this Agreement, in the
event that the Indemnifying Party notifies the Indemnified Party within the
Notice Period that it desires to defend
the Indemnified Party against a Litigated Claim, the Indemnifying Party will
have the right so to defend the Indemnified Party by appropriate proceedings
with counsel of the Indemnifying Party's choosing, and will have the sole power
to direct and control such defense. If any Indemnified Party desires to
participate in any such defense it may do so at its sole cost and expense.
(E) If the Indemnifying Party elects not to defend the Indemnified
Party against a Litigated Claim, whether by not giving the Indemnified Party
timely notice as provided by Section 8.4(c) of this Agreement or otherwise, then
the Indemnified Party will have the right so to defend the Litigated Claim by
appropriate proceedings with counsel of the Indemnified Party's choosing, and
will have the sole power to direct and control such defense. The portion of such
Litigated Claim as to which the defense by the Indemnified Party is unsuccessful
(and the reasonable costs and expenses pertaining to the defense of the entire
Litigated Claim) will be the Liability of the Indemnifying Party hereunder. The
Indemnified Party will use commercially reasonable efforts in the defense of all
such Litigated Claims subject to the limitations contained in Section 8.4(g) of
this Agreement.
(F) Notwithstanding any other provision hereof to the contrary, the
Buyer Indemnified Parties may assert against the Convertible Note its right of
offset, in accordance with Section 8.3 of this Agreement, the following
Litigated Claims: (i) any Litigated Claim against which Seller elects not to
defend, as contemplated by Section 8.4(e) of this Agreement; and (ii) the
portion of a Litigated Claim defended by Seller as to which Seller's defense is
unsuccessful.
(G) The Indemnified Party will not settle a Litigated Claim without
the consent of the Indemnifying Party, which consent will not be unreasonably
withheld; provided, however, that the Indemnifying Party will not settle,
compromise or offer to settle or compromise any Litigated Claim on a basis that
would result in the imposition of a consent order, injunction or decree that
would restrict the future activity or conduct of the Indemnified Party or any
Affiliate thereof without the consent of the Indemnified Party or any Affiliate
thereof, which consent may be withheld for any reason.
(H) To the extent that the Indemnifying Party directs, controls or
participates in the defense or settlement of any Litigated Claim, the
Indemnified Party will give the Indemnifying Party and its counsel, during
normal business hours, access to the relevant business records and other
documents, and will permit them to consult with the employees and counsel of the
Indemnified Party.
(I) All amounts paid by Seller or Buyer, as the case may be, under
this Article VIII, and all offsets against the Convertible Note pursuant to
Section 8.3 will be treated as adjustments to the Purchase Price for Tax
purposes.
SECTION 8.5 INDEMNIFICATION LIMITATIONS.
(A) Except for Buyer Losses related to Product warranty obligations
and the Kalmus litigation, no Indemnifying Party shall have any Liability
hereunder to indemnify the Indemnified Party for Buyer Losses or Seller Losses,
as applicable, until the aggregate amount of Buyer Losses or Seller Losses, as
applicable, exceeds Fifty Thousand Dollars ($50,000) in which
event the Indemnified Party shall be entitled to indemnification for all such
Losses. With regard to Product warranty obligations, Seller and each Seller
Shareholder will jointly and severally indemnify the Buyer Indemnified Parties
for all Product warranty obligations incurred by Buyer pursuant to Section 3.18
in excess of $100,000 for each of the periods set forth in Section 3.18. With
regard to the Kalmus litigation, the limitation set forth in this Section 8.5(a)
shall not apply with respect to any Liability arising out of the Kalmus
litigation or resulting from Seller's breach or any Seller Shareholder's breach
of the provisions of Section 5.21.
(B) The aggregate indemnification obligation of Seller or Seller
Shareholders, on the one hand, or Buyer, on the other hand, hereunder for Buyer
Losses or Seller Losses, as applicable, shall not exceed the amount of the
Closing Consideration, as adjusted.
ARTICLE IX. TERMINATION
SECTION 9.1 TERMINATION.
This Agreement may be terminated at any time prior to Closing as follows:
(A) by mutual agreement of Buyer and Seller;
(B) by either Buyer or Seller if: (i) there is in effect any Law that
prohibits or prevents Closing, (ii) if Closing would violate any order, decree
or judgment of any Governmental Entity; or (iii) if any Governmental Entity
issues any order, decree, judgment or ruling or otherwise attempts to prohibit
or prevent the Closing or to modify the material terms of the Transaction;
(C) by Seller if, as a result of any action or inaction by Buyer or
its Affiliates, Closing has not occurred within thirty (30) days following the
date on which all of the conditions to Closing set forth in Sections 7.1 and 7.2
have become capable of satisfaction (or have been waived);
(D) by Buyer if, as a result of any action or inaction by Seller or
its Affiliates, Closing has not occurred within thirty (30) days following the
date on which all of the conditions to Closing set forth in Sections 7.1 and 7.3
have become capable of satisfaction (or have been waived);
(E) by Buyer upon the occurrence of a Material Adverse Effect or any
event, condition, change or circumstance that gives rise to a Material Adverse
Effect: and
(F) by Buyer or Seller, by giving written notice of such termination
to the other party, if Closing has not occurred on or prior to September 30,
2006; provided, however, that the party providing such notice is not in material
breach of any of its obligations under this Agreement.
SECTION 9.2 EFFECT OF TERMINATION.
In the event of the termination of this Agreement, as provided by Section
9.1, this Agreement will thereupon become void and have no effect, and no party
will have any Liability to any other party or their respective Affiliates,
directors, officers or employees, except for the obligations of the parties
contained in this Section 9.2 and in Sections 5.6 (Confidentiality), 5.7 (Public
Disclosure), 10.1 (Notices), 10.5 (Expenses), 10.7 (Governing Law), 10.8
(Alternative Dispute Resolution), 10.9 (Submission to Jurisdiction) and 10.13
(Entire Agreement) (and any related definitional provisions set forth in Article
I), and except that nothing in this Section 9.2 will relieve any party from
Liability for any breach of this Agreement that arose prior to such termination,
for which Liability the provisions of Article VIII will remain in effect in
accordance with the provisions and limitations thereof.
ARTICLE X. IN GENERAL
SECTION 10.1 NOTICES.
All notices or other communications given hereunder will be deemed to have
been duly given and made if in writing and if served by personal delivery upon
the party for whom it is intended, if delivered by registered or certified mail,
return receipt requested, or by a nationally recognized, overnight courier
service, or if sent by facsimile, provided that the facsimile is promptly
confirmed by telephone confirmation thereof, to the party at the address set
forth below, or such other address as may be designated in writing hereafter, in
the same manner, by such party:
If to Buyer: Ultralife Batteries, Inc.
2000 Technology Parkway
Newark, New York 14513
Attention: Chief Executive Officer
Fax: (315) 331-7048
with a copy to: Harter, Secrest & Emery LLP
1600 Bausch & Lomb Place
Rochester, New York 14604-2711
Attention: Jeffrey H. Bowen, Esq.
Fax: (585) 232-2152
If to Seller: before Closing:
McDowell Research, Ltd.
300 South 8th Street
Waco, Texas 76701
Attention: Frank Alexander
Fax: (254) 752-1812
after Closing:
_
_____________________
_____________________
_____________________
Fax: (___) ____-_____
in each case
with a copy to: Naman, Howell, Smith & Lee, LLP
900 Washington Avenue, 7th Floor
Waco, Texas 76703-1470
Attention: Wesley J. Filer
Fax: (254) 754-6331
All such notices and other communications shall be deemed to have been
given and received effective as of: (i) in the case of personal delivery, on the
date of such delivery (ii) in the case of registered or certified mail, return
receipt requested, on the third business day after such mail is postmarked;
(iii) in the case of a nationally recognized, overnight courier service, on the
business day following dispatch; or (iii) in the case of a facsimile, provided
that the facsimile is promptly confirmed by telephone confirmation thereof, on
the date of such delivery.
SECTION 10.2 AMENDMENT; WAIVER.
Any provision of this Agreement may be amended or waived if such amendment
or waiver is in writing and signed, in the case of an amendment, by Buyer and
Seller, or in the case of a waiver, by the party against whom the waiver is to
be effective. No failure or delay by any party in exercising any right, power or
privilege hereunder will operate as a waiver thereof nor will any single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege.
SECTION 10.3 NO ASSIGNMENT OR BENEFIT TO THIRD PARTIES.
No party may assign any of its rights or delegate any of its obligations
under this Agreement, by operation of law or otherwise, without the prior
written consent of the other party, and any attempt to assign this Agreement
without such consent will be void and of no force or effect. Nothing in this
Agreement, express or implied, is intended to confer upon any Person other than
Buyer, Acquisition Sub, Seller or the Indemnified Parties, or their respective
permitted successors or permitted assigns, any rights or remedies under or by
reason of this Agreement. Without limiting the generality of the foregoing,
nothing in this Agreement creates any rights in any employees or groups of
employees.
SECTION 10.4 SURVIVAL.
(A) All of the respective representations, warranties, covenants and
agreements of Seller and Buyer contained in this Agreement, and all
indemnification obligations of any party with respect thereto, will survive
Closing.
(B) If notice of any claim for indemnification has been timely given,
then such claim for indemnification, and the underlying representations,
warranties, covenants or agreements, and the indemnification obligations that
are the subject thereof, will survive until such time as such claim is finally
resolved.
SECTION 10.5 EXPENSES.
Except as otherwise expressly provided in Article VIII of this Agreement,
whether or not the Transaction is consummated, all costs and expenses incurred
in connection with this Agreement and the Transactions will be borne by the
party incurring the same.
SECTION 10.6 SCHEDULES, EXHIBITS, ETC.
(A) Each Schedule, Exhibit (when and as executed), certificate
provided hereunder and written disclosure required hereby is incorporated by
reference into this Agreement and will be considered a part hereof as if set
forth herein in full; provided, however, that information set forth on any
Schedule, certification or written disclosure constitutes a representation and
warranty of the party providing the same, and not the mutual agreement of the
parties as to the facts therein stated. The contents of the Schedules will not
vary, change or alter the language or substance of the representations and
warranties contained in this Agreement. Each Schedule is annexed hereto on the
date hereof and, if Buyer consents, will be updated as necessary or amended on
or before the Closing Date. Unless otherwise specifically noted herein, all
Schedules shall be deemed the sole responsibility, obligation, disclosure and
work-product of Seller.
(B) Buyer's rights to indemnification or other remedies provided
hereby based on any breach by Seller of its representations, warranties,
covenants and agreements will not be affected by any investigation conducted
with respect to, or any knowledge acquired (or capable of being acquired) by
Buyer at any time, whether before or after the execution and delivery of this
Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or
compliance with, any such representation, warranty, covenant or agreement. The
due diligence review conducted by Buyer and its representatives will not relieve
Seller of any duties concerning its representations, warranties, covenants or
agreements contained in this Agreement or in any Ancillary Agreement.
SECTION 10.7 GOVERNING LAW.
This Agreement will be governed by and construed in accordance with the
Laws of the State of New York without regard to its principles of conflicts of
laws.
SECTION 10.8 ALTERNATE DISPUTE RESOLUTION.
If any dispute arises between Buyer and Seller regarding this Agreement,
any Closing Document or the Transaction (other than a dispute relating to
Intellectual Property which the parties reserve all rights to litigate in
accordance with Section 10.9 of this Agreement, or otherwise address as they may
agree at the time such dispute arises), John D. Kavazanjian, on behalf of Buyer,
and Thomas Hauke, on behalf of Seller, or their respective designees, will
attempt in good faith to resolve the dispute. If the such Persons have not
agreed to a resolution within fifteen (15) days from
the date on which the dispute was first presented to them, either party, by
written notice to the other, may require that the dispute be submitted for
resolution to ____, on behalf of Buyer, and ____, on behalf of Seller, or their
designees. They will meet, in person or by other means mutually satisfactory to
them, to attempt to resolve the dispute within fifteen (15) days after reference
of the matter to them. If they reach a decision within such fifteen (15) day
period, their decision will be final and binding on the parties for all
purposes. If they fail to resolve the dispute within such period, Buyer and
Seller may, if they then so agree, refer the matter for arbitration on such
terms as they may then agree or, failing that, proceed to litigation.
SECTION 10.9 REMEDIES CUMULATIVE.
The various rights and remedies herein provided will be cumulative and not
exclusive of any other rights or remedies herein provided or any rights or
remedies provided by Law.
SECTION 10.10 INFERENCES.
Inasmuch as this Agreement is the result of negotiations between
sophisticated parties of equal bargaining power represented by counsel, no
inference in favor of or against either party will be drawn from the fact that
any portion of this Agreement has been drafted by or on behalf of such party.
SECTION 10.11 SEVERABILITY.
The provisions of this Agreement will be deemed severable and the
invalidity or unenforceability of any provision will not affect the validity or
enforceability of the other provisions hereof. If any provision of this
Agreement, or the application thereof to any Person or any circumstance, is
invalid or unenforceable, (a) a suitable and equitable provision will be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision,
and (b) the remainder of this Agreement and the application of such provision to
other Persons or circumstances will not be affected by such invalidity or
unenforceability, nor will such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
SECTION 10.12 ENTIRE AGREEMENT.
This Agreement, including the Exhibits, the Schedules, the Ancillary
Agreements and the other Closing Documents contain the entire agreement between
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect to such matters.
SECTION 10.13 HEADINGS.
The heading references herein and any tables of contents, indexes or
similar items hereto are for convenience purposes only, do not constitute a part
of this Agreement, and will not be deemed to limit or affect any of the
provisions hereof.
SECTION 10.14 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
will be deemed an original, and all of which will constitute one and the same
Agreement.
SECTION 10.15 FACSIMILES.
The parties agree that facsimile copies of signatures shall be deemed
originals for all purposes hereof and that a party may produce such copies,
without the need to produce original signatures, to prove the existence of this
Agreement in any proceeding brought hereunder.
[The signatures of the parties appear on the next page.]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
BUYER: SELLER:
ULTRALIFE BATTERIES, INC. MCDOWELL RESEARCH, LTD.
- ------------------------------------- ----------------------------------------
Signature Signature
- ------------------------------------- ----------------------------------------
Print Name Print Name
- ------------------------------------- ----------------------------------------
Title Title
ACQUISITION SUB: SELLER SHAREHOLDERS
MR ACQUISITION CORPORATION
- ------------------------------------- ----------------------------------------
Signature Thomas Hauke
- ------------------------------------- ----------------------------------------
Print Name Earl Martin, Sr.
- ------------------------------------- ----------------------------------------
Title James Evans
- -------------------------------------
- -------------------------------------
- ------------------------------------- ----------------------------------------
Frank Alexander
[Signature Page to Asset Purchase Agreement]
Note: Other than Exhibits A, C and D, which are being furnished herewith, the
exhibits and schedules to the agreement are not being furnished herewith. Such
exhibits and schedules will be furnished to the Securities and Exchange
Commission upon request.
TABLE OF EXHIBITS AND SCHEDULES
Exhibit A Convertible Note
Exhibit B-1 Hauke Employment Agreement
Exhibit B-2 Evans Employment Agreement
Exhibit B-3 Alexander Employment Agreement
Exhibit B-4 Pixley Employment Agreement
Exhibit C Lease Agreement
Exhibit D Registration Rights Agreement
Schedule 1.1 Approvals
Schedule 2.1(a)(i) Transferred Intellectual Property: Software
Schedule 2.1(a)(ii) Transferred Intellectual Property: Patents
Schedule 2.1(a)(iii) Transferred Intellectual Property: Trademarks
Schedule 2.1(a)(v) Transferred Intellectual Property: Domain Names, Etc.
Schedule 2.1(b) Transferred Intellectual Property: Products
Schedule 2.1(c)(i) Assumed Contracts: License Agreements
Schedule 2.1(c)(ii) Assumed Contracts: Other
Schedule 2.1(d) Transferred Assets: Inventory
Schedule 2.1(f) Transferred Assets: Tangible Personal Property
Schedule 2.1(k) Transferred Assets: Other
Schedule 2.2(j) Excluded Assets: Other
Schedule 2.6(c) Accounts Receivable Allocation
Schedule 3.1(a) Foreign Qualifications
Schedule 3.7(a) Financial Statements
Schedule 3.7(b) Certain Liabilities
Schedule 3.7(c) 2006 Forecast
Schedule 3.9(b) Condition of Transferred Assets
Schedule 3.9(c) Inventory: Certain Software and Products
Schedule 3.11 Litigation and Claims
Schedule 3.12(c) Intellectual Property: Infringement
Schedule 3.12(d) Intellectual Property: Software: Exceptions
Schedule 3.12(e) Intellectual Property: Patents and Trademarks: Exceptions
Schedule 3.12(f) Intellectual Property: Products Exceptions
Schedule 3.12(h) Intellectual Property: Copyright Notices
Schedule 3.12(i) Intellectual Property: Trade Secret Protection Program
Schedule 3.14(a) Licenses to Third Parties
Schedule 3.14(b) Third Party Components in Intellectual Property
Schedule 3.15 Third Party Interests in Intellectual Property
Schedule 3.16 Major Vendors and Customers
Schedule 3.19 Tax Matters
Schedule 3.20 Employment Matters
Schedule 3.21(a) Employee Benefits: Plans
Schedule 3.21(e) Employee Benefits: Certain Payments
Schedule 3.21(h) Employee Benefits: Certain Benefits
Schedule 3.21(i) Employee Benefits: Certain Liabilities
Schedule 3.22 Environmental Matters
Schedule 3.23 Insurance
Schedule 3.24 Subsequent Changes
Schedule 3.25 Related-Party Transactions
Schedule 5.2 Conduct of the Business: Exceptions
Schedule 5.10 Determination and Allocation of Consideration
Schedule 6.1 Applicable Employees
Schedule 7.2(i) Required Approvals