EXHIBIT 10.10
AGREEMENT
FOR THE PURCHASE OF INVENTORIES, INDUSTRIAL PROPERTY RIGHTS
AND CERTAIN OTHER RIGHTS AND ASSETS
between
Attorney Xxxxxxxx Xxxxxxx (the "ADMINISTRATOR"), acting as court-appointed
Administrator in Bankruptcy (Konkursverwalter) for and on behalf of
1. Escom XX, Xxxxxxxxxxx 00-00, 00000 Xxxxxx ("ESCOM") and
2. Amiga Technologies GmbH, Berliner Ring 89, 64625 Bensheim ("AMIGA")
and
VIScorp Acquisitions Inc., a stock corporation pursuant to the laws of Delaware,
represented by its President, Xxxxxxx X. Xxxx, with its principal place of
business located at 000 X. Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 XXX
("VISCORP").
I.
PREAMBLE
1.1 Escom and Amiga filed an application for the opening of bankruptcy
proceedings on July 15th, 1996 with the Magistrate's Court in Bensheim,
the latter being the competent bankruptcy court for both bankrupt
companies, Escom and Amiga (the "BANKRUPTCY COURT"). The bankruptcy
proceedings were opened by resolutions of the Bankruptcy Court at 16:30
hours on July 15th, 1996. In the resolution, Attorney Xxxxxxxx Xxxxxxx
was appointed to the office of Administrator of both the Escom and Amiga
bankruptcy estates. The respective resolutions of the Bankruptcy Court
are attached hereto as EXHIBIT 1 hereto.
1.2 VIScorp wishes to purchase certain rights and assets from the
Administrator consisting of inventories and industrial property rights
and other rights pursuant to the terms and conditions of the following
Agreement.
II.
INVENTORIES OF THE ESCOM GROUP TO BE PURCHASED BY VISCORP
2.1 Subject to the terms set forth herein, the Administrator herewith sells
and conveys and VIScorp agrees to purchase the inventories (the
"INVENTORIES") held by the Administrator which are located at certain
warehouses listed in EXHIBIT 2 together with respective listings of items
and quantities in the inventory schedules likewise set forth in EXHIBIT 2
of this Agreement.
2.2 The Administrator shall release and deliver the Inventories to VIScorp
upon presentation of an irrevocable first demand guarantee in the amount
of maximum twenty million U.S. Dollars ($20,000,000) more fully described
in Article 5.4 hereof (the "BANK GUARANTEE"), such presentation by
VIScorp to take place as soon as possible after execution of this
Agreement. The delivery of the Inventories for the purposes of German
law shall take the form of an assignment of the respective warehousing
and storage contracts for the Inventories from the Administrator to
VIScorp, or if portions of the inventories are held in the possession of
the Administrator, he shall hold such inventories for VIScorp free of
charge until actual delivery. To the extent the inventories are located
abroad and foreign law requires further acts and measures to effect valid
transfer of title, the parties agree to undertake such acts and measures.
2.3 The Administrator agrees to place at the disposal of VIScorp as soon as
possible after delivery of the Inventories all purchase documentation,
including purchase orders placed by Administrator with suppliers, order
confirmations and other related purchase correspondence, in such form and
completeness as to enable VIScorp to assert, INTER ALIA, any warranty
rights against the respective suppliers. Administrator herewith assigns
all rights and claims, in particular, warranty claims against the
respective suppliers relating to the Inventories purchased pursuant
hereto and VIScorp accepts such assignment.
2.4 Purchase and delivery of the Inventories pursuant to this Article II
shall be free of any rights of third parties, in particular, any liens or
other security interests held by third parties. The Administrator
disclaims any warranties pursuant to sections 459 et seq. BGB.
III.
ASSIGNMENT OF INDUSTRIAL PROPERTY RIGHTS
3.1 Subject to the terms set forth herein, the Administrator hereby sells and
assigns certain industrial property rights to Escom to VIScorp, such
rights to include all patent and trademark rights, including related
copyrights, acquired by Escom from the former Commodore International
Ltd. and any of its affiliates. Excepted herefrom is the trademark
"Commodore". Such rights shall include any rights currently registered
in the name of Escom and any rights to which Escom or any of its
affiliates have already acquired commercial ownership, but which have not
yet been recorded in the respective patent or trademark register as being
in title ownership of Escom (the "INDUSTRIAL PROPERTY RIGHTS"). These
rights have been set forth in EXHIBIT 3 HEREOF.
3.2 The parties agree to execute as soon as reasonably possible following the
presentation of the Bank Guarantee more fully described in Article 5.4
below all instruments of assignment necessary in order to effect the
change of ownership registration for the Industrial Property Rights in
the respective rolls of the German Patent Office and other national,
foreign and international patent and trademark registers.
3.3 Administrator agrees to render any additional declarations and to
undertake any further measures necessary following the execution of this
Agreement in order to effect the
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change of ownership registration for the Industrial Property Rights with
domestic, foreign and international industrial property registers.
VIScorp shall bear all costs in connection herewith.
3.4 To the extent the Industrial Property Rights contain copyrights pursuant
to German law, Administrator agrees to grant VIScorp an exclusive,
irrevocable, perpetual and worldwide license to use and to sub-license
such copyrights. The grant of such license shall be evidenced by a
written exclusive license agreement to be executed by the parties as soon
as possible following the execution of this Agreement. The consideration
to be paid for the grant of such license shall be a one-time, lump-sum
payment to be included in the purchase price for the Industrial Property
Rights set forth in this Article III.
3.5 As soon as possible following the posting of the Bank Guarantee pursuant
to Article 2.2 above, the Administrator shall deliver, or procure the
delivery of all documents including existing drawings and technical
documentation relating to the Industrial Property Rights assigned
pursuant to this Article III.
3.6 The purchase and assignment of the Industrial Property Rights pursuant to
this Article III shall be free of any rights of third parties, in
particular, any liens or security interests held by third parties. The
Administrator disclaims all warranties pursuant to sections 459 et seq.
IV.
NOVATION OF CERTAIN AGREEMENTS
4.1 Simultaneously with the posting of the Bank Guarantee pursuant to Article
II above, VIScorp shall assume certain contracts, license agreements,
agreements and binding sales orders of Amiga listed in EXHIBIT 4 hereof.
To the extent any contracting party of Amiga refuses to provide consent
to the assignment of any contract or order to VIScorp, such contract or
order shall remain with Administrator and shall not transfer to VIScorp.
In this event, VIScorp shall be entitled to an adjustment of the purchase
price in an amount which corresponds to the commercial value of the
unassigned contract or sales order.
4.2 To the extent security deposits or other forms of credit are held for the
account of the Administrator with regard to the contracts, license
agreements and binding sales orders to be transferred to VIScorp, such
deposits and credits shall transfer to the account of VIScorp. The
consideration for such transfer is contained in the purchase price set
forth in Article V hereof.
V.
PURCHASE PRICE; POSTING OF BANK GUARANTEE
5.1 The purchase price for the Inventories and the Industrial Property Rights
(the "PURCHASE PRICE") described in Articles II and III hereof shall be
allocated as follows:
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5.1.1 Inventories (Exhibit 2) $10,000,000.00
5.1.2 Industrial Property Rights (Exhibit 3) $10,000,000.00
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Total $20,000,000.00
5.2 The amount of the purchase price allocated to Inventories shall be
reduced by the costs and disbursements set forth in EXHIBIT 5 hereof and
shall be deducted from the second and third installments of the Purchase
Price in accordance with the payment schedule contained in Article VI
hereof.
5.3 Value added tax, to the extent incurred, shall be deemed in addition to
the Purchase Price set forth in Article 5.1.
5.4 In order to secure payment of the Purchase Price, VIScorp shall post as
soon as possible following the execution of this Agreement an irrevocable
first demand bank guarantee, limited to a specific term of six months.
This bank guarantee shall be issued to the Administrator in an amount of
maximum twenty million U.S. Dollars ($20,000,000.00) (the "BANK
GUARANTEE"). VIScorp agrees to post the aforementioned Bank Guarantee by
no later than thirty (30) days following the execution of this agreement.
If this Bank Guarantee is not posted by VIScorp prior to expiration of
this deadline, the Administrator shall be entitled to rescind this
agreement. In this case, all claims for damages shall be waived.
VI.
PAYMENT OF THE PURCHASE PRICE; CONDITIONS PRECEDENT
6.1 PAYMENT OF THE FIRST INSTALLMENT OF THE PURCHASE PRICE
By no later than thirty (30) days following the presentation of the Bank
Guarantee and the submission of a corresponding invoice by Administrator,
VIScorp agrees to pay Administrator the first installment of the Purchase
Price totalling ten million dollars ($10,000,000). For internal
accounting and VAT purposes, such amount shall be deemed to constitute
payment for the Industrial Property Rights pursuant to Article III
hereof.
6.1.1 Condition Precedent to Payment.
As a condition precedent to VIScorp's obligation to pay the first
installment of the Purchase Price, Administrator shall submit an original
opinion letter bearing the date of the presentation of the Bank Guarantee
from Patent Attorneys Xxxxx, Luderschmidt & Partner, Wiesbaden, which
confirms that the Industrial Property Rights purchased by VIScorp are
currently registered and in good standing and are not the subject of
cancellation or annulment proceedings nor that such proceedings have been
threatened by any third party. In addition, the patent attorneys will
confirm that any Industrial Property Rights not already registered in the
name of Escom are currently on application
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for assignment to Escom and that they have no knowledge of any hindrances
or other impediments which would prevent transfer of the registration to
Escom.
In the event Administrator is unable to submit the above opinion letter
containing the stated confirmations on the date the first installment
payment becomes due, VIScorp and the Administrator shall be entitled to
issue the other party written notice of its intention to rescind this
Agreement and such rescission shall become effective upon expiration of
fourteen (14) days following receipt of the notice by the other party.
6.2 THE SECOND INSTALLMENT OF THE PURCHASE PRICE.
The second installment of the Purchase Price in the amount five million
US Dollars ($5,000,000), in addition to VAT at the currently governing
rate, reduced, however, by the deductions set forth in EXHIBIT 5 hereof,
shall be due and payable thirty (30) days following the payment of the
first installment of the Purchase Price pursuant to Article 6.1 above
against submission of a corresponding invoice.
6.3 THE THIRD INSTALLMENT OF THE PURCHASE PRICE.
The third installment in the amount of five million U.S. Dollars
($5,000,000), in addition to VAT at the currently governing rate,
reduced, however, by any remaining deductions not covered by the second
installment shall be due and payable thirty (30) days following the
payment of the second installment of the Purchase Price pursuant to
Article 6.2 above against submission of a corresponding invoice.
6.4 Administrator agrees to return the Bank Guarantee to the issuing bank
immediately upon receipt of the third installment payment set forth
above.
VII.
WARRANTIES
7.1 Administrator represents and warrants that he possesses all requisite
rights of disposition and powers to dispose of the Inventories (Article
II.) and the Industrial Property Rights (Article III.) constituting the
subject matter of this Agreement and to effect the assignment of
contracts, license contracts and binding sales orders orders (Article
IV). Moreover, Administrator represents and warrants that, except with
regard to the assets listed in ANNEX 5 hereof, at the time of transfer of
ownership of the foregoing assets to VIScorp, no liens, security
interests or other form of creditor rights exist with regard to the
Inventories and the Industrial Property Rights which would hinder the
transfer of clear and uncontested title to VIScorp. The Assets listed in
ANNEX 5 shall be released by the Administrator against payment of the
release sums by VIScorp. The payment of the release sums shall be
directly regulated between VIScorp and the third party having rights in
such assets.
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7.2 Administrator has stated to VIScorp that he has notified the Creditor
Pool of Escom and Amiga regarding the subject matter of this Agreement
and the dispositions effected herein and that the Creditor Pool has
approved the transactions set forth in this Agreement.
VIII.
LIABILITIES
8.1 In the event of breach of any of the warranties and representations set
forth in Article VII above, VIScorp shall be entitled to reduce the
Purchase Price in an amount which represents the fair value of the lost
benefit of the Agreement to VIScorp. In accordance therewith, VIScorp
shall be entitled to deduct such amount from any unpaid portion of the
Purchase Price.
8.2 VIScorp shall have the right to rescind this Agreement, if, prior to the
payment of the third installment of the Purchase Price pursuant to
Article 6.3 above, the validity or fulfillment of this Agreement shall be
challenged or hindered by any third party in such a manner as to
significantly endanger the fulfillment of this Agreement in the manner
contemplated herein. In this case, VIScorp shall exercise its right to
rescind this Agreement by declaration to the Administrator to be received
by him no later than thirty (30) days following the date upon which the
third installment payment becomes due.
IX.
MISCELLANEOUS
9.1 All Exhibits to this Agreement constitute material components hereof and
shall be deemed incorporated into the body of this Agreement by
reference.
9.2 This Agreement shall be subject to German law. The courts in Frankfurt
shall have exclusive jurisdiction over any disputes arising from or in
connection with this agreement.
9.3 If any individual provision of this Agreement is or becomes invalid or
unenforceable, the validity of the remaining provisions shall remain
unaffected. The parties shall be obligated in this case to replace the
invalid provision with a valid and enforceable one, the content of which
most closely approximates the commercial purpose of the invalid
provision.
9.4 In case provision of this Agreement require interpretation or amendment,
the provisions shall be interpreted or amended in a manner most closely
approximating the spirit, content, and purpose of this Agreement. In
this regard, the parties shall agree on a provision on which they would
have agreed at the time of the execution of this agreement if they had
realized the need to interpret or amend the agreement. The same shall
apply in the event of any omissions.
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9.5 The Parties have executed an English translation of this agreement which
has been translated by a court-sworn translator. The German language
version of this agreement, however, shall govern.
Date:
Place:
Administrator VIScorp
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AMIGA
Inventory Report
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1) INVENTORY
LOCATION MATERIAL PAYMENT TO RELEASE MATERIAL
DEM USD
conv. rate: 1.527
Bordeaux A1200 RM 1,178,324.10 771,659.55
SOLECTRON Raw Material DEM USD
10,458,315 DEM
Philadelphia A4000T RM 145,065.00 DEM 95,000.00 USD
QUIKPAK 3,913,910 DEM
Papendrecht Components 11,511.46 DEM 7,538.61 USD
XXXXXX & XXXXX 11,110,239 DEM
Weinheim Cabinets 6,300.00 DEM 4,125.74 USD
265,347 DEM
Braunschweig Spares
XXXXXXX Finished Goods 11,256.11 DEM 7,371.39 USD
WANDT 26,477,768 DEM 78,531.82 DEM 51,428.82 USD
Verrieref le Buisson CD ROM Drives
ARCHUS 97,016.72 DEM 63,534.20 USD
2) INTELLECTUAL PROPERTY
Wiesbaden 90,207.94 DEM 59,075.27 USD
PATENT LAWYER
Jena 410,900.98 DEM 289,090.36 USD
MAZet
Documentation
TOTAL 2,029,113.90 DEM 1,328,823.90 USD
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