Execution Copy ASSET PURCHASE AGREEMENT among: HPR GLOBAL, INC., a Delaware corporation, SYMYX TECHNOLOGIES, INC., a Delaware corporation and SYMYX SOLUTIONS, INC., an Oregon corporation Dated as of February 11, 2010
Exhibit 2.3
Execution Copy
among:
HPR GLOBAL, INC.,
a Delaware corporation,
SYMYX TECHNOLOGIES, INC.,
a Delaware corporation
and
SYMYX SOLUTIONS, INC.,
an Oregon corporation
Dated as of February 11, 2010
THIS ASSET PURCHASE AGREEMENT is entered into as of February 11, 2010, by and among HPR Global, Inc., a Delaware corporation (“Purchaser”), Symyx Technologies, Inc., a Delaware corporation (“Parent”) and Symyx Solutions, Inc., an Oregon corporation and wholly-owned subsidiary of Parent (“Seller”). Certain capitalized terms used in this Agreement are defined in Exhibit A.
Seller and Purchaser wish to provide for the sale of the Transferred Assets (as defined in Section 1.1) to Purchaser on the terms set forth in this Agreement.
Concurrently with the execution of this Agreement, Purchaser and Seller are entering into a Technology License Agreement, attached hereto as Exhibit B (the “License Agreement”), which agreement shall become effective upon the Closing.
The parties to this Agreement, intending to be legally bound, agree as follows:
1. | SALE OF TRANSFERRED ASSETS; RELATED TRANSACTIONS. |
1.1 Sale of Transferred Assets. Seller shall sell, assign, transfer, convey and deliver to Purchaser, at the Closing (as defined in Section 1.7), all of Seller’s ownership, rights and interest in and to the following properties, rights, interests and tangible and intangible assets (the “Transferred Assets”), free of any Encumbrances (other than Permitted Encumbrances), on the terms and subject to the conditions set forth in this Agreement:
1
In furtherance of the foregoing and not in limitation thereof, the parties acknowledge that the Transferred Assets will include all of the tangible assets physically located on the date of this Agreement at Seller’s facility located at 000 Xxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 (the “Oakmead Facility”). Notwithstanding the foregoing, the parties agree that Seller is not selling, assigning, transferring, conveying or delivering to Purchaser, and the Transferred Assets shall not include, any licenses or royalty obligations owing to Seller, whether or not associated with the Business or any Transferred Asset.
Parent has provided to Purchaser draft versions of Schedules 1.1(e), 1.1(f), 1.1(g) and 1.3(a) which are based on the financial information available to Parent as of the date hereof and provide a good faith estimate by Parent as to what will comprise such Schedules as of the Closing. Purchaser acknowledges that the final versions of such Schedules shall be delivered to Purchaser in connection with the Closing and shall be prepared by Parent in accordance with this Section 1.1 and as necessary to satisfy the representation in Section 2.15. The final versions of such Schedules shall be prepared by Parent and delivered to Purchaser at least two business days prior to the scheduled Closing Date.
(a) the assumption of the Assumed Liabilities as described in Section 1.3, which shall be evidenced by the execution by Purchaser of an Assumption Agreement in the form of Exhibit C (the “Assumption Agreement”);
2
(b) the issuance of a promissory note by Purchaser to Seller in the principal amount of $10,000,000, in the form of Exhibit D (the “Note”); and
(c) the issuance of that number of shares of Purchaser Common Stock, constituting 19.5% of the outstanding shares of capital stock of Purchaser immediately following the Closing (after giving effect to the issuance of the shares contemplated by this Section 1.2(c)) (the “Shares”), and a warrant, in the form attached hereto as Exhibit E (the “Warrant” and, together with the Shares, the “Securities”), to purchase that number of shares of Purchaser Common Stock that constitute 19.5% of the shares reserved for issuance under the Plan as of the Closing (with such share amounts to be based on the capitalization information set forth in the Purchaser Closing Certificate (defined in Section 1.7 below).
1.3 Assumption of Liabilities.
(a) On the terms and subject to the conditions set forth in this Agreement, Purchaser shall assume, at the Closing, only the following Liabilities of Seller (the “Assumed Liabilities”): (i) the obligations and liabilities set forth on Schedule 1.3(a) (the “Transferred Liabilities”) to be delivered by Seller to Purchaser at Closing, which Transferred Liabilities shall not exceed an amount necessary to make the representation in Section 2.15 accurate as of the Closing; (ii) the obligations and liabilities relating to the operation of the Business by Purchaser or the Transferred Assets that first arise after the Closing; (iii) the obligations and liabilities of Seller under the Transferred Contracts that first arise after the Closing; and (iv) the wages, salaries or other Liabilities relating to the Transferred Employees with respect to the employment of such Transferred Employees for the period of time that they are employed by Purchaser or any of its Affiliates following the Closing.
(b) Notwithstanding anything to the contrary in this Agreement, Purchaser shall not assume any liabilities or obligations of Seller (whether or not related to the Transferred Assets or the Business and whether or not incurred prior to, at or following the Closing) other than the Assumed Liabilities (the “Retained Liabilities”). Specifically, but not in limitation of the foregoing sentence, the following Liabilities shall be deemed to be Retained Liabilities: (i) any actual or alleged breach of or default under any Transferred Contract occurring on or prior to the Closing; (ii) any violation of a Legal Requirement, product liability, tort or infringement occurring on or prior to the Closing; (iii) any Proceeding relating to any of the foregoing. The Retained Liabilities shall also include any and all Liabilities with respect to the employment of the employees of the Business that arise from or relate to the period of time that such employees were employed by the Seller or any of its Affiliates, any and all Liabilities that arise from or relate to the termination of any such person’s employment with the Seller or any of its Affiliates, and any and all Liabilities related to the Seller Plans (as such term is defined in Section 2.17).
(c) The parties agree that any Liabilities associated with any property Taxes payable by any party hereto in connection with the Business for a Tax period including the Closing Date, or any refunds, credits or offsets of such property Taxes associated with the Business for such period, will be allocated between Purchaser, on the one hand, and Parent and Seller, on the other hand, on a straight-line proportionate basis for any such Tax period based on the number of days the Business is controlled by Parent and Seller prior to the Closing and the number of days the Business is controlled by Purchaser following the Closing. For the avoidance of doubt, the preceding sentence shall not apply to any income Taxes or Taxes covered by Section 1.4.
1.4 Sales Taxes. Purchaser and Seller shall each bear and pay fifty percent (50%) of any sales Taxes, value added Taxes, use Taxes, transfer Taxes, documentary charges, recording fees or similar Taxes, charges or fees that may become payable in connection with the sale of the Transferred Assets to Purchaser or in connection with any of the other Transactions.
3
(a) Prior to the Closing or as soon as reasonably practicable thereafter, Seller shall deliver to Purchaser a notice specifying the valuation of the Shares and the Warrant. Such valuation of the Shares and Warrant shall be subject to the approval of Purchaser, such approval not to be unreasonably withheld or delayed, and shall in no event exceed $500,000 in the aggregate for the Securities.
(b) The Purchase Price shall be allocated among the Transferred Assets in accordance with a schedule to be prepared by Seller and delivered to Purchaser (taking into account the valuation of the Securities pursuant to Section 1.5(a) above), which schedule shall be subject to the approval of Purchaser, such approval not to be unreasonably withheld or delayed, within 45 days following the Closing Date. Such schedule will be prepared in compliance with Section 1060 of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations promulgated thereunder), and neither Purchaser nor Seller shall file (and neither shall permit any Affiliate of Purchaser or Seller, as the case may be, to file) any Tax Return or other document with, or make any statement or declaration to, any Governmental Body that is inconsistent with such allocation. Purchaser shall prepare and deliver IRS Form 8594 to Seller within 45 days after the Closing Date to be filed with the United Internal Revenue Service. Any disputes under this Section 1.5 shall be resolved in accordance with the dispute resolution procedures set forth on Schedule 6.9(b).
(a) The closing of the sale of the Transferred Assets to Purchaser and the other Transactions contemplated by this Agreement (the “Closing”) shall take place at a time and date to be specified by the parties, which shall be no later than the second business day following the satisfaction or waiver of the conditions set forth in this Section 1.7 and shall be no earlier than March 1, 2010 and no later than March 31, 2010, unless otherwise consented to by Parent and Purchaser, or at such other time or date as the parties hereto agree in writing. The Closing shall occur at the offices of Xxxxxx Godward Kronish LLP at 10:00 a.m. Pacific time on the Closing Date. For purposes of this Agreement, “Closing Date” shall mean the date on which the Closing actually takes place.
4
(b) At the Closing, Seller shall cause to be delivered to Purchaser:
(i) a Xxxx of Sale and Assignment Agreement in substantially the form of Exhibit F (“Xxxx of Sale”), duly executed by Seller;
(ii) a sublease agreement with respect to the Oakmead Facility, on terms to be mutually agreed upon by Parent and Purchaser (the “Lease Agreement”), duly executed by Seller;
(iii) a transition services agreement, on terms to be mutually agreed upon by Parent and Purchaser (the “Transition Agreement”), duly executed by Seller;
(iv) a Securities Issuance Agreement, substantially in the form of Exhibit G, duly executed by Seller;
(v) a software license, services and co-marketing agreement, on terms to be mutually agreed upon by Seller and Purchaser (the “Software License, Services and Co-Marketing Agreement”);
(vi) the Assumption Agreement, duly executed by Seller; and
(vii) such other bills of sale, endorsements, assignments and other documents as may be reasonably necessary or appropriate to assign, convey, transfer and deliver to Purchaser good and valid title to the Transferred Assets, all duly executed by Seller as appropriate, including instruments suitable for evidencing and recording with the applicable Governmental Bodies the assignment of the Registered IP to Purchaser (the “Conveyance Documents”).
(c) At the Closing, Purchaser shall cause to be delivered to Seller:
(i) the Assumption Agreement, duly executed by Purchaser;
(ii) the Note, duly executed by Purchaser;
(iii) a stock certificate evidencing Seller’s ownership of the Shares;
(iv) the Lease Agreement, duly executed by Purchaser;
(v) the Transition Agreement, duly executed by Purchaser;
(vi) the Securities Issuance Agreement, duly executed by Purchaser;
(vii) the Software License, Services and Co-Marketing Agreement, duly executed by Purchaser; and
(viii) the closing certificate, in the form attached hereto as Exhibit H (the “Purchaser Closing Certificate”).
5
(i) the representations and warranties set forth in Section 3 shall be true and correct, in all material respects, at and as of the Closing as though then made;
(ii) Purchaser shall have performed and complied with, in all material respects, all of the covenants and agreements required to be performed by it under this Agreement at or prior to the Closing;
(iii) no Proceeding shall be pending in which it is sought to restrain or prohibit or to obtain damages or other relief (including rescission) in connection with the Transactions contemplated hereby, and no Order shall have been entered preventing the transaction contemplated hereby;
(iv) Purchaser shall have delivered to Seller a certificate signed by an officer of Purchaser, in a form reasonably satisfactory to Seller, dated as of the Closing Date, stating that the conditions specified in subsections (i) and (ii) above have been satisfied; and
(v) Purchaser shall have delivered to Seller all other agreements and documents required to be delivered by Purchaser pursuant to Section 1.7(c).
(i) the representations and warranties set forth in Section 2 shall be true and correct, in all material respects, at and as of the Closing as though then made except for those representations and warranties that addressed matters only as of a particular date prior to the date hereof (which representations shall have been true and correct as of such particular date);
(ii) Seller shall have performed and complied with, in all material respects, all of the covenants and agreements required to be performed and complied with by it under this Agreement at or prior to the Closing;
(iii) Seller shall have obtained, in form and substance reasonably satisfactory to Purchaser, releases of all Encumbrances relating to the Transferred Assets (other than the Permitted Encumbrances), and Seller shall have delivered to Purchaser copies of all such releases of Encumbrances;
(iv) Purchaser and Seller shall have received or obtained all Governmental Authorizations that are necessary for the consummation of the Transactions contemplated hereby and Purchaser’s operation of the Business after the Closing, in each case on terms reasonably satisfactory to Purchaser;
6
(v) there shall have been no Material Adverse Effect since the date of this Agreement;
(vi) no Proceeding shall be pending in which it is sought to restrain or prohibit or to obtain damages or other relief (including rescission) in connection with the Transactions contemplated hereby, and no Order shall have been entered preventing the transaction contemplated hereby;
(vii) Seller shall have delivered to Purchaser a FIRPTA affidavit dated as of the Closing and in form and substance required under the Treasury Regulations issued pursuant to Code Section 1445 so that Purchaser is exempt from withholding any portion of the Purchase Price;
(viii) Seller shall have delivered to Purchaser a certificate signed by an officer of Seller (or, if so elected by Parent, by an officer of Parent), in a form reasonably satisfactory to Purchaser, dated as of the Closing Date, stating that the conditions specified in subsections (i), (ii), (iii) and (v) above have been satisfied; and
(ix) Seller shall have delivered to Purchaser all other agreements and documents required to be delivered by Seller pursuant to Section 1.7(b).
2. | REPRESENTATIONS AND WARRANTIES OF SELLER. |
Parent and Seller jointly represent and warrant, subject to such exceptions disclosed in the Disclosure Schedule, to and for the benefit of Purchaser, as follows:
7
(a) Parent is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Oregon.
(b) Seller, with respect to the Business, has obtained and currently maintains all qualifications to do business as a foreign corporation in all other jurisdictions in which the character of Seller’s properties or the nature of Seller’s activities require it to be so qualified and in which the failure to be so qualified has had or would be reasonably expected to have a Material Adverse Effect.
(a) Other than licenses granted to third parties under Seller Contracts and other than licenses granted to Purchaser in connection with the Transactional Agreements, Seller exclusively owns all right, title and interest to and in the Transferred IP (excluding the Legacy Patents) and the LEA Software Assets (in the case of the LEA Software Assets, excluding rights licensed from third parties therefor), free and clear of any Encumbrances. No Transferred IP (excluding the Legacy Patents) or LEA Software Asset is subject to any Proceeding or outstanding decree, order, judgment, Contract or stipulation that restricts in any manner the use, licensing or transfer thereof by Seller or that would reasonably be expected to adversely affect the validity, use or enforceability thereof. To Seller’s Knowledge, the Seller IP, together with the license and rights granted to Purchaser under the License Agreement and the Software License, Services and Co-Marketing Agreement, constitute (i) all the Business IP and (ii) all the Intellectual Property Rights and Intellectual Property necessary for the conduct of the Business as currently conducted.
(b) Seller has not transferred ownership of or granted any exclusive retention of or joint ownership of Seller IP (excluding the Legacy Patents) to any Person.
(c) All documents and instruments necessary to establish, perfect, and maintain the rights of Seller in the Registered IP (excluding the Legacy Patents) have been validly executed, delivered, and filed in a timely manner with the appropriate Governmental Body.
(d) Seller has taken commercially reasonable steps to maintain the confidentiality of and otherwise protect and enforce its rights in the proprietary information pertaining to or included in the Transferred IP (excluding the Legacy Patents) and the LEA Software Assets. All current and former employees, contractors, agents and consultants of Seller who are or were involved in the creation of Transferred IP (excluding the Legacy Patents) and/or LEA Software Assets for Seller have executed a written assignment of inventions agreement substantially in the form provided to Purchaser that vests in Seller exclusive ownership of all right, title and interest in and to such Transferred IP (excluding the Legacy Patents) and/or LEA Software Assets, and have waived all moral rights therein, to the extent not already provided by applicable Legal Requirements.
8
(e) No funding, facilities, or personnel of any Governmental Body or any public or private university, college, or other educational or research institution were used, directly or indirectly, to develop or create, in whole or in part, any Transferred Product, Transferred IP (excluding the Legacy Patents), or LEA Software Assets.
(f) Each filing relating to any item of Registered IP (excluding the Legacy Patents) is and at all times has been in compliance with all Legal Requirements applicable to such filing in all material respects and all material filings, payments and other actions required to be made or taken to maintain each item of Registered IP (excluding the Legacy Patents) in full force and effect have been made by the applicable deadline. Each item of Registered IP (excluding the Legacy Patents) (i) has been filed, applied for or registered solely in the name of Seller and (ii) to the extent issued or registered as of the date hereof, is valid, subsisting and enforceable.
(g) To Seller’s Knowledge, no Person has infringed, misappropriated or otherwise violated, and no Person is currently infringing, misappropriating or otherwise violating, any Seller IP (excluding the Legacy Patents). The Seller has not received any written notice or other written communication that any Person has infringed, misappropriated, or otherwise violated, or that any Person is currently infringing, misappropriating or otherwise violating, any Seller IP (excluding the Legacy Patents).
(h) To Seller’s Knowledge, neither the Seller IP (excluding the Legacy Patents) nor the conduct of the Business has infringed, misappropriated or otherwise violated, or infringes, misappropriates or otherwise violates, (i) any Intellectual Property Right of any other Person other than any rights in any patent or industrial property right and (ii) any Intellectual Property Right in any patent or industrial property right of any other Person. The Seller has not received any written notice or other written communication that any of the Seller IP (excluding the Legacy Patents) or the conduct of the Business has infringed, misappropriated or otherwise violated, or infringes, misappropriates or otherwise violates any Intellectual Property Right of any other Person.
(i) The execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby, do not and will not (i) alter, restrict, impair or extinguish, or otherwise create any Encumbrance with respect to, any Seller IP (excluding the Legacy Patents); (ii) cause the forfeiture or termination of, or give rise to a right of forfeiture or termination of, any Seller IP (excluding the Legacy Patents); (iii) violate or result in a breach of any Contract governing any Seller IP (excluding the Legacy Patents) or result in any acceleration of or increase in, or loss of, any payments or benefits thereunder. Following the Closing, subject to the licenses and rights granted by Seller under the Seller Contracts, all Transferred IP (excluding the Legacy Patents) and LEA Software Assets (other than any license or other grant of rights to Seller related to the LEA Software Assets under the Transactional Agreements to which no representation or warranty is made) will be fully transferable, alienable or licensable by the Purchaser without restriction and without payment of any kind to any Person.
9
(a) Part 2.5(a) of the Disclosure Schedule identifies each of the following Seller Contracts (each Seller Contract required to be disclosed on Part 2.5(a) of the Disclosure Schedule is referred to collectively as the “Material Contracts”):
(i) each Seller Contract with any Governmental Body;
(ii) each partnership, joint venture or similar Seller Contract;
(iii) each Seller Contract pursuant to which any Person has the right to (A) distribute or otherwise resell any Transferred Product or (B) sublicense any Seller IP;
(iv) each Seller Contract with a customer that has outstanding accounts receivables in excess of $100,000 in the aggregate or that contemplates or involves the performance of services by Seller having a value in excess of $100,000 in the aggregate;
(v) each Seller Contract pursuant to which Seller leases or otherwise occupies or uses any real property in the conduct of the Business (the “Leased Real Property”);
(vi) each Seller Contract that prohibits Seller from freely engaging in the Business anywhere in the world;
(vii) each Seller Contract providing for the mortgaging, pledging or otherwise placing an Encumbrance on any Transferred Asset
(viii) each material Seller Contract providing for any license of or other grant of rights in any Seller IP to any third party, other than Contracts providing for a license or other grant of rights with respect to the commercial sale or license of the Transferred Products;
(ix) each material Seller Contract providing for any license of or other grant of rights in any Business IP to Seller (other than any license or other grant of rights to Seller related to the LEA Software Assets, which are not deemed to be Material Contracts and to which no representation or warranty is made);
(x) each Seller Contract that involves the sharing of profits with, or the payment of royalties to, any third party;
(xi) each Seller Contract pursuant to which a third party has been, or may be, granted rights to access, possess or use software source code that is Seller IP, including, without limitation, any related source code escrow agreements;
(xii) each Seller Contract pursuant to which Seller has granted a third party “most favorable” pricing or other terms with respect to any Seller IP or Transferred Products; and
(xiii) each Seller Contract that grants to any Person any exclusive rights under any Seller IP or with respect to any Transferred Product, or any rights of first refusal, rights of first negotiation or similar rights, or an option for any of the foregoing.
10
(b) With respect to each of the Material Contracts: (i) Seller has not materially violated or breached any such Contract and, to Seller’s Knowledge, no such Contract has been breached in any material respect or cancelled by any other party thereto; (ii) no event has occurred, and no circumstance or condition exists, that might (with or without notice or lapse of time) result in a material violation or breach by Seller of any of any such Contract; (iii) Seller has not received any written notice regarding any violation or reach of any such Contract; (iv) Seller has not waived any material right under any such Contract; and (v) such Contract is valid, binding and enforceable against Seller and, to Seller’s Knowledge, the other parties thereto (subject to the Enforceability Exception (as defined in Section 2.12)). Seller has delivered to Purchaser accurate and complete copies of all Transferred Contracts.
11
(a) contravene or result in a violation of: (i) any of the provisions of the certificate of incorporation, bylaws or similar documents of Seller; or (ii) any resolution adopted by the stockholders, board of directors or any committee of the board of directors of Seller;
(b) contravene or result in a violation of any Legal Requirement or any Order to which any of the Transferred Assets is subject;
(c) result in the imposition or creation of any Encumbrance upon or with respect to any Transferred Asset; or
(d) contravene, conflict with or result in a violation of or breach of, or result in a default under, any Transferred Contract, give any third party the right to modify, terminate or to accelerate any obligation under, or result in the loss, modification or termination of any rights or benefits under, any Transferred Contract.
The Seller will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body in connection with the execution and delivery by Seller of any of the Transactional Agreements or the consummation or performance by Seller of any of the Transactions.
12
2.16 Representations relating to the Securities.
(d) Accredited Investor Status. Seller is an “accredited investor” as such term is defined in Rule 501 under the Securities Act.
13
3. | REPRESENTATIONS AND WARRANTIES OF PURCHASER. |
Purchaser represents and warrants, to and for the benefit of Seller and Parent, as follows:
(a) contravene or result in a violation of: (i) any of the provisions of the certificate of incorporation or bylaws or similar documents of Purchaser; or (ii) any resolution adopted by the stockholders, board of directors or any committee of the board of directors of Purchaser;
(b) contravene or result in a violation of any Legal Requirement or any Order to which Purchaser is subject; or
(c) contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any Contract to which Purchaser is a party or by which Purchaser is bound.
Purchaser is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body in connection with the execution and delivery by Purchaser of any of the Transactional Agreements or the consummation or performance by Purchaser of any of the Transactions (except for such state blue sky filings with respect to the issuance of the Securities that may be timely made following the Closing).
14
4. | INDEMNIFICATION, ETC. |
(a) The representations, warranties, covenants and obligations of each party to this Agreement shall survive the Closing and the sale of the Transferred Assets to Purchaser.
(b) The representations and warranties made by each party to this Agreement and by Purchaser in the Purchaser Closing Certificate shall expire on the first anniversary of the Closing Date (the “Representation Termination Date”); provided, however, that if a Claim Notice (as defined below) relating to any representation or warranty is given to the party making such representing or warranty on or prior to the Representation Termination Date, then the claim asserted in such Claim Notice shall survive the Representation Termination Date until such time as such claim is fully and finally resolved. Notwithstanding anything to the contrary contained in this Agreement, there shall not be deemed to be a breach of any representation or warranty (i) of Seller contained in this Agreement if any of Xxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxxx Xxxx, Xxx Xxxxxxx, Xxxxxxx Win or Xxxx Xxxxxxx had, on or prior to the Closing, actual knowledge of the breach of, or of any facts or circumstances constituting or resulting in the breach of, such representation or warranty and (ii) of Purchaser contained in this Agreement if Seller had Knowledge of the breach of, or of any facts or circumstances constituting or resulting in the breach of, such representation or warranty.
(c) For purposes of this Agreement, a “Claim Notice” relating to a particular representation or warranty shall be deemed to have been given if a party to this Agreement, acting in good faith, delivers to the other party a written notice stating that such party believes that there is or has been a breach of such representation or warranty and setting forth in reasonable detail: (i) the basis for, and a brief description of the circumstances supporting, such party’s belief that there is or has been such a breach; and (ii) to the extent known and estimable, a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential damages that have arisen and may arise as a result of such breach; and asserting a claim for recovery under Sections 4.2 or 4.3 based on such alleged breach.
15
4.2 Indemnification by Parent and Seller.
(a) From and after the Closing Date (but subject to the limitations set forth in this Section 4), Parent and Seller shall, jointly and severally, hold harmless and indemnify each of the Purchaser Indemnitees from and against, and compensate and reimburse each of the Purchaser Indemnitees for, any Damages that are suffered or incurred by any of Purchaser Indemnitees and that arise from or as a result of:
(i) any inaccuracy in or breach of any of the representations or warranties made by Seller in this Agreement, the Xxxx of Sale, the Conveyance Documents and in any closing certificate;
(ii) any breach of any covenant or obligation of Seller contained in this Agreement; and
(iii) the Retained Liabilities.
(b) Except in the case of actual fraud with intent to deceive and except with respect to a claim with respect to an inaccuracy or breach of the representations and warranties set forth in the Sections 2.1(a), 2.15 and 2.16 (the “Fundamental Seller Representations”), neither Parent nor Seller shall be required to make any indemnification payment pursuant to Section 4.2(a)(i) until such time as the total, cumulative amount of all Damages (including the Damages arising from such breach and all other Damages arising from any other breaches of any representations or warranties) that have been suffered or incurred by any of the Purchaser Indemnitees and, with respect to which any indemnification payment would otherwise be available to any of the Purchaser Indemnitees pursuant to Section 4.2(a)(i), exceeds $50,000. If the total amount of such Damages exceeds $50,000, the Purchaser Indemnitees shall be entitled to be indemnified against and compensated and reimbursed solely for the amount of Damages in excess of $50,000.
(c) Except in the case of actual fraud with intent to deceive and except in connection with inaccuracies in or breaches of any of the Fundamental Seller Representations, the total amount of indemnification payments that Parent or Seller can be required to make to any of Purchaser Indemnitees pursuant to Section 4.2(a)(i) shall be limited to $2,000,000 in the aggregate. With respect to aggregate payments that Parent or Seller may be required to make to any of the Purchaser Indemnitees pursuant to Section 4.2(a)(i) in excess of $1,000,000, all such amounts shall be made solely through a set off against amounts otherwise owing under the Note in the reverse order that such amounts shall be owing thereunder (i.e., beginning with the last payment owing to be made under the Note).
(d) The parties acknowledge and agree that, for purposes of determining the amount of Damages in connection with an indemnification claim pursuant to this Section 4, each representation, warranty and other provision of this Agreement and in each certificate delivered pursuant hereto by either Seller or Purchaser shall be read without regard and without giving effect to any material, materiality or Material Adverse Effect standard or qualification contained in such representation or warranty or other provision as if such standard or qualification were deleted from such representation or warranty or other provision.
16
4.3 Indemnification by Purchaser.
(a) From and after the Closing Date (but subject to the limitations set forth in this Section 4), Purchaser shall hold harmless and indemnify each of the Seller Indemnitees from and against , and compensate and reimburse each of Seller Indemnitees for, any Damages that are suffered or incurred by any of Seller Indemnitees and that arise from or as a result of:
(i) any inaccuracy in or breach of any of the representations or warranties made by Purchaser in this Agreement or in any closing certificate, including the Purchaser Closing Certificate;
(ii) any breach of any covenant or obligation of Purchaser contained in this Agreement; and
(iii) the Assumed Liabilities.
(b) Except in the case of actual fraud with intent to deceive, Purchaser shall not be required to make any indemnification payment pursuant to Section 4.3(a)(i) until such time as the total, cumulative amount of all Damages (including the Damages arising from such breach and all other Damages arising from any other breaches of any representations or warranties) that have been suffered or incurred by any of the Seller Indemnitees and, with respect to which any indemnification payment would otherwise be available to any of Seller Indemnitees pursuant to Section 4.3(a)(i), exceeds $50,000. If the total amount of such Damages exceeds $50,000, the Seller Indemnitees shall be entitled to be indemnified against and compensated and reimbursed solely for the amount of Damages in excess of $50,000.
(c) Except in the case of actual fraud with intent to deceive, the total amount of indemnification payments that Purchaser can be required to make to any of Seller Indemnitees pursuant to Section 4.3(a)(i) (except with respect a claim with respect to an inaccuracy or breach of the Purchaser Closing Certificate) shall be limited to $2,000,000. With respect to aggregate payments that Purchaser may be required to make to any of the Seller Indemnitees pursuant to Section 4.3(a)(i) in excess of $1,000,000, all such amounts shall be made solely through an automatic increase in the principal amount owing under the Note. The repayment of such amount shall be due with the final payment of principal under the Note.
17
5. | COVENANTS. |
5.1 Limitation on Hiring and Soliciting Employees, Soliciting Customers, Noncompetition, Etc.
(A) own, as a passive investment, shares of capital stock of a publicly-held corporation that engages in Competition with the Specified Business if: (1) such shares are actively traded on an established national securities market; and (2) the number of shares of such corporation’s capital stock that are owned beneficially by Seller represent less than five percent of the total number of shares of such corporation’s capital stock outstanding; and
(B) hire any employee who responds to a general ad published by Seller.
For purposes of this Section 5.1(a): (i) “Specified Individual” means any Transferred Employee or other employee of Purchaser or any subsidiary of Purchaser; (ii) “Business Contact” means any customer, supplier or licensee of the Business at any time during the three month period preceding the Closing; and (iii) a Person shall be deemed to be engaged in “Competition with the Specified Business” if such Person is, directly or indirectly, engaged (whether as an owner, operator, manager, employee, officer, director, consultant, advisor, representative or otherwise) in any business or activity that competes in any material respect with the Specified Business as conducted by Seller as of the date hereof.
18
For purposes of this Section 5.1(b): (i) “Seller Specified Individual” means any employee of Seller other than the Transferred Employees; and (ii) “Seller Contact” means any customer, supplier or licensee of Seller.
6. | MISCELLANEOUS PROVISIONS. |
19
(a) Parent shall ensure that, on and at all times after the date of this Agreement: (i) no press release or other public statements or publicity concerning any of the Transactions is issued or otherwise disseminated by or on behalf of Seller or any Affiliate of Seller without Purchaser’s prior written consent; and (ii) Parent and Seller (and each of their respective Affiliates) continue to keep the terms of this Agreement and the other Transactional Agreements strictly confidential; provided, however, that: (A) the existence and terms of this Agreement and the other Transactional Agreements may be disclosed to the extent required by applicable Legal Requirements or deemed advisable in the reasonable opinion of Parent in order to comply with applicable Legal Requirements (including, in each case, rules and regulations issued by a national security exchange that are applicable to Parent); and (B) neither Parent, Seller nor any Affiliate of Seller or Parent shall be required to obtain the Consent of Purchaser with respect to any disclosure relating to the Transactions if (and only to the extent that) such disclosure is not more expansive than or inconsistent with prior public disclosures made by Parent or any Affiliate of Parent in accordance with this Section 6.3 or made by Purchaser or any Affiliate of Purchaser.
(b) Purchaser shall ensure that, on and at all times after the date of this Agreement: (i) no press release or other public statements or publicity concerning any of the Transactions is issued or otherwise disseminated by or on behalf of Purchaser or any Affiliate of Purchaser without Parent’s prior written consent; and (ii) Purchaser (and each of its Affiliates) continue to keep the terms of this Agreement and the other Transactional Agreements strictly confidential; provided, however, that: (A) the existence and terms of this Agreement and the other Transactional Agreements may be disclosed to the extent Purchaser reasonably believes that such disclosure is required by applicable Legal Requirements (including rules and regulations issued by a national security exchange that are applicable to Purchaser); and (B) neither Purchaser nor any Affiliate of Purchaser shall be required to obtain the Consent of Parent with respect to any disclosure relating to the Transactions if (and only to the extent that) such disclosure is not more expansive than or inconsistent with prior public disclosures made by Seller or any Affiliate of Seller in accordance with this Section 6.3 or made by Parent or Seller or any Affiliate thereof.
20
6.6 Notices. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing and shall be deemed properly delivered, given and received: (a) when delivered by hand; (b) the first business day after being sent by nationally recognized overnight courier service; (c) five days after being sent by registered or certified mail; (d) if sent by confirmed facsimile or electronic transmission before 2:00 p.m. in California, on that day (or the following business day if such day is not a business day); (e) if sent by confirmed facsimile or electronic transmission after 2:00 p.m. in California, on the following business day, in any case to the address or facsimile telephone number set forth beneath the name of such party below (or to such other address, electronic address or facsimile telephone number as such party shall have specified in a written notice given to the other parties hereto):
if to Seller or Parent:
Symyx Technologies, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxx
Xxxxxx Godward Kronish LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
if to Purchaser:
HPR Global, Inc.
000 Xxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: CEO
with a copy to:
Xxxxxx X. Xxxxxxxxx
O’Melveny & Xxxxx LLP
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
21
(a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of California (without giving effect to principles of conflicts of laws).
(b) Notwithstanding anything to the contrary contained in this Agreement, any claim for indemnification, compensation or reimbursement pursuant to Section 4 and any claim for a monetary remedy relating to this Agreement or the Transactions after the Closing shall be brought and resolved exclusively in accordance with Schedule 6.9(b); provided, however, that nothing in this Section 6.9(b) shall prevent Seller or Purchaser from seeking preliminary injunctive relief from a court of competent jurisdiction.
(c) Any Proceeding relating to this Agreement or the enforcement of any provision of this Agreement shall be brought or otherwise commenced in any state or federal court located in the County of Santa Clara, California. Each party to this Agreement:
(i) expressly and irrevocably consents and submits to the non-exclusive jurisdiction of each state and federal court located in the County of Santa Clara, California (and each appellate court located in the State of California) in connection with any such Proceeding;
(ii) agrees that each state and federal court located in the County of Santa Clara, California shall be deemed to be a convenient forum; and
(iii) agrees not to assert (by way of motion, as a defense or otherwise), in any such Proceeding commenced in any state or federal court located in the County of Santa Clara, California, any claim that such party is not subject personally to the jurisdiction of such court, that such Proceeding has been brought in an inconvenient forum, that the venue of such proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court.
6.10 Successors and Assigns; Parties in Interest.
(a) This Agreement shall be binding upon Parent, Seller and their respective successors and assigns (if any), and Purchaser and its successors and assigns (if any). This Agreement shall inure to the benefit of: Parent; Seller; Purchaser and the respective successors and permitted assigns (if any) of the foregoing.
22
(b) Neither Parent (or Seller) nor Purchaser may assign their respective rights under this Agreement to any other Person without the other party’s written consent except in connection with a sale of substantially the entire business of Parent or Purchaser, as the case may be (whether by merger, sale of assets or stock or otherwise). For the avoidance of doubt, Purchaser may not assign its obligations under the Note without Parent’s written consent.
(c) None of the provisions of this Agreement is intended to provide any rights or remedies to any Person other than the parties to this Agreement and their respective successors and assigns (if any). Without limiting the generality of the foregoing: (i) no employee of Seller shall have any rights under this Agreement or under any of the other Transactional Agreements under Section 4 or otherwise; and (ii) no creditor of Seller shall have any rights under this Agreement or any of the other Transactional Agreements.
23
6.18 No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their collective mutual intent, and no rule of strict construction shall be applied against any Person. The term “including” as used herein shall be by way of example and shall not be deemed to constitute a limitation of any term or provision contained herein.
(a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”
(d) Except as otherwise indicated, all references in this Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Agreement and Exhibits to this Agreement.
24
The parties to this Agreement have caused this Agreement to be executed and delivered as of the date first written above.
HPR GLOBAL, INC. a Delaware corporation | ||
By: | /s/ Xxxx Xxxxxxx | |
Name: | Xxxx Xxxxxxx | |
Title: | CEO | |
SYMYX TECHNOLOGIES, INC. a Delaware corporation | ||
By: | /s/ Xxx Xxxxxxxxxx | |
Name: | Xxx Xxxxxxxxxx | |
Title: | CEO | |
SYMYX SOLUTIONS, INC. an Oregon corporation | ||
By: | /s/ Xxx Xxxxxxxxxx | |
Name: | Xxx Xxxxxxxxxx | |
Title: | CEO |
25
EXHIBIT A
CERTAIN DEFINITIONS
For purposes of the Agreement (including this Exhibit A):
Affiliate. “Affiliate” shall mean, with respect to any Person, any other Person that as of the date of the Agreement or as of any subsequent date, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such specified Person.
Agreement. “Agreement” shall mean the Asset Purchase Agreement to which this Exhibit A is attached (including the Disclosure Schedule), as it may be amended from time to time.
Business. “Business” shall mean (a) the “Tools” division of Seller’s High Productivity Research (“HPR”) business unit, which develops, manufactures and sells laboratory automation instruments and workflows to accelerate and improve research, production and development activities; (b) Seller’s recently restructured “Research Services” division of HPR, which performs advanced chemical research services; and/or (b) Seller’s front-end “Lab Execution and Analysis” (LEA) software products, which consist of the products Library Studio, Automation Studio, the Automation Studio Software Development Kit, Epoch and Impressionist.
Business IP. “Business IP” means all Intellectual Property Rights and Intellectual Property necessary for, primarily used in or primarily held for use in the conduct of the Business as currently conducted by Seller.
Consent. “Consent” shall mean any approval, consent, ratification, permission, waiver or authorization (including any Governmental Authorization).
Contract. “Contract” shall mean any written, oral or other agreement, contract, arrangement, representation, warranty, deed, purchase order, work order, commitment, covenant, assurance or undertaking of any nature.
Damages. “Damages” shall include any loss, damage, injury, Liability, claim, settlement, judgment, award, fine, penalty, Tax, fee (including any legal fee, expert fee, accounting fee or advisory fee), charge, cost (including any cost of investigation) or expense of any nature but specifically excluding any special, punitive or consequential damages except to the extent awarded to third parties.
Disclosure Schedule. “Disclosure Schedule” shall mean the disclosure schedule (dated as of the date of the Agreement) delivered to Purchaser on behalf of Seller. The Disclosure Schedule shall be arranged in sections corresponding to the numbered and lettered sections contained in Section 2. Disclosures in any section or subsection of the Disclosure Schedule shall qualify other sections and subsections of Section 2 to the extent it is readily apparent from a reading of the disclosure (without reference to any other document or any presumed knowledge of the Business) that such disclosure is applicable to such other sections and subsections.
Encumbrance. “Encumbrance” means any security interest, mortgage, lien, option, pledge, charge or other similar encumbrance.
Governmental Authorization. “Governmental Authorization” shall mean any: (a) permit, license, certificate, franchise, approval, consent, permission, clearance, certification, designation, rating, registration, qualification or authorization issued, granted, given or otherwise made available by or under the authority of any Governmental Body or pursuant to any Legal Requirement; or (b) right under any Contract with any Governmental Body.
-1-
Governmental Body. “Governmental Body” shall mean any: (a) nation, principality, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (b) federal, state, local, municipal, foreign or other government; (c) governmental or quasi-governmental authority of any nature (including any governmental division, subdivision, department, agency, bureau, branch, office, commission, council, board, instrumentality, officer, official, representative, organization, unit, body or entity and any court or other tribunal); (d) multi-national organization or body; or (e) individual, entity or body exercising, or entitled to exercise, any executive, legislative, judicial, administrative, regulatory, police, military or taxing authority or power of any nature.
Hazardous Material. “Hazardous Material” shall include any petroleum, waste oil, crude oil, asbestos, urea formaldehyde or polychlorinated biphenyl, any waste, gas or other substance or material that is explosive or radioactive and any “hazardous substance,” “pollutant,” “contaminant,” “hazardous waste,” “regulated substance,” “hazardous chemical” or “toxic chemical” as designated, listed or defined (whether expressly or by reference) in any statute, regulation or other Legal Requirement.
Indemnitees. “Indemnitees” shall mean Purchaser Indemnitees and Seller Indemnitees, collectively.
Initial Transactions. “Initial Transactions” shall mean (a) the filing of Purchaser’s certificate of incorporation with the Secretary of State of the State of Delaware, (b) the appointment of the initial board of directors of Purchaser; (c) the issuance of the shares of Purchaser Common Stock as necessary to make the representations in the Purchaser Closing Certificate accurate in all respects as of the Closing; and (d) the taking of all other actions contemplated by Purchaser Closing Certificate necessary to make the representations in the Purchaser Closing Certificate accurate in all respects as of the Closing.
Intellectual Property. “Intellectual Property” shall mean algorithms, apparatus, BKMs, databases, data collections, diagrams, formulae, inventions (whether or not patentable), know-how, logos, marks (including brand names, product names, logos, and slogans), methods and processes (including manufacturing methods, training methods and similar methods and processes), proprietary information, protocols, recipes, schematics, specifications, software, techniques, URLs, web sites, works of authorship and other forms of technology (whether or not embodied in any tangible form and including all tangible embodiments of the foregoing, such as instruction manuals, laboratory notebooks, prototypes, samples, studies and summaries).
Intellectual Property Rights. “Intellectual Property Rights” shall mean all rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights and mask works; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses “(a)” through “(e)” above.
Knowledge. Information shall be deemed to be known to or to the “Knowledge” of Seller if that information is actually known by Xxx Xxxxxxxxxx, Xxx Xxxxxxx, Xxxxxxx Xxxxx, Xxxx Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxxx and/or Trevor Heritage.
Legacy Patents. “Legacy Patents” shall mean all patents and patent applications listed on Schedule 1.1(a) that are not identified in Schedule 1.1(a) as Core Tools Patents.
Legal Requirement. “Legal Requirement” shall mean any federal, state, local, municipal, foreign or other law, statute, legislation, constitution, principle of common law, resolution, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, ruling, directive, pronouncement, requirement, specification, determination, decision, opinion or interpretation issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the authority of any Governmental Body.
-2-
Liability. “Liability” shall mean any and all debts, liabilities and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured or determined or determinable, including, without limitation, those arising under any applicable Legal Requirements.
Material Adverse Effect. “Material Adverse Effect” shall mean any circumstance, event, state of facts, change in or effect on Seller and/or the Business that has had or would reasonably be expected to have a material adverse effect upon or change in (a) the business, financial condition, operating results, assets or operations of the Business taken as a whole or (b) the ability of Seller to consummate the Transactions contemplated by this Agreement;
Order. “Order” shall mean any: (a) order, judgment, injunction, edict, decree, ruling, pronouncement, determination, decision, opinion, verdict, sentence, subpoena, writ or award issued, made, entered, rendered or otherwise put into effect by or under the authority of any court, administrative agency or other Governmental Body or any arbitrator or arbitration panel; or (b) Contract with any Governmental Body entered into in connection with any Proceeding.
Permitted Encumbrance. “Permitted Encumbrance” means (a) liens for Taxes not yet due and payable (other than Taxes arising out of the transactions contemplated by this Agreement) or for Taxes that are being contested in good faith; (b) liens imposed by applicable laws, such as materialmen’s, mechanics’, carriers’, workmen’s, repairmen’s and other similar Encumbrances arising in the ordinary course of business for amounts not yet due or that are being contested in good faith; and (c) such imperfections of title and encumbrances, if any, that do not detract from the value or interfere with the present use of the property subject thereto or affected thereby.
Person. “Person” shall mean any individual, corporation or other entity or Governmental Body.
Plan. “Plan” means Purchaser’s 2010 Stock Incentive Plan.
Proceeding. “Proceeding” shall mean any action, suit, litigation, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding and any informal proceeding), prosecution, contest, hearing, audit or examination commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Body or any arbitrator or arbitration panel.
Purchaser Common Stock. “Purchaser Common Stock” shall mean the common stock of Purchaser, par value $0.0001 per share.
Purchaser Indemnitees. “Purchaser Indemnitees” shall mean the following Persons: (a) Purchaser; (b) the current and future affiliates of Purchaser; (c) the respective Representatives of each the Persons referred to in clauses “(a)” and “(b)” above; and (d) the respective successors and assigns of the Persons referred to in clauses “(a)”, “(b)” and “(c)” above.
Registered IP. “Registered IP” shall mean all Intellectual Property Rights in the Transferred IP and the LEA Software Assets that are registered, filed, or issued under the authority of, with or by any Governmental Body, including all patents, registered copyrights, registered mask works and registered trademarks and all applications for any of the foregoing.
-3-
Representatives. “Representatives” shall mean officers, directors, employees, agents, attorneys, accountants and advisors.
Retained Intellectual Property. “Retained Intellectual Property” shall mean the patents and applications referred to in Schedule 1.1A, and any Intellectual Property Rights of Seller’s Symyx Software business units other than the LEA Software Assets listed on Schedule 1.1(d).
Seller Contract. “Seller Contract” shall mean any current Contract primarily related to, used or held for use in the Business to which Seller is a party or otherwise bound.
Securities Act. “Securities Act” shall mean the Securities Act of 1933, as amended.
Seller Indemnitees. “Seller Indemnitees” shall mean the following Persons: (a) Seller; (b) Parent; (c) the current and future affiliates of Seller and Parent, respectively; (d) the respective Representatives of each the Persons referred to in clauses “(a)”, “(b)” and “(c)” above; and (e) the respective successors and assigns of the Persons referred to in clauses “(a)”, “(b)”, “(c)” and “(d)” above.
Seller IP. “Seller IP” means the Transferred IP, the rights of Seller under the Transferred Contracts and the LEA Software Assets.
Specified Business. “Specified Business” shall mean (a) the “Tools” division of Seller’s High Productivity Research (“HPR”) business unit, which develops, manufactures and sells laboratory automation instruments and workflows to accelerate and improve research, production and development activities; (b) Seller’s recently restructured “Research Services” division of HPR, which performs advanced chemical research services; and/or (c) a license to a third party to embed the Automation Studio or Library Studio components of the Assigned Components set forth on Schedule 1.1(d) or any software that is developed by Parent (or its subsidaries) after the Closing that is materially equivalent to the functionality provided by such Automation Studio or Library Studio components.
Tax. “Tax” shall mean any tax (including any income tax, franchise tax, capital gains tax, estimated tax, gross receipts tax, value-added tax, surtax, excise tax, ad valorem tax, transfer tax, stamp tax, sales tax, use tax, property tax, business tax, occupation tax, inventory tax, occupancy tax, withholding tax or payroll tax), levy, assessment, tariff, impost, imposition, toll, duty (including any customs duty), deficiency or fee, and any related charge or amount (including any fine, penalty or interest), that is, has been or may in the future be (a) imposed, assessed or collected by or under the authority of any Governmental Body, or (b) payable pursuant to any tax-sharing agreement or similar Contract.
Tax Return. “Tax Return” shall mean any return (including any information return), report, statement, declaration, estimate, schedule, notice, notification, form, election, certificate or other document or information that is, has been or may in the future be filed with or submitted to, or required to be filed with or submitted to, any Governmental Body in connection with the determination, assessment, collection or payment of any Tax or in connection with the administration, implementation or enforcement of or compliance with any Legal Requirement relating to any Tax.
Transactional Agreements. “Transactional Agreements” shall mean: (a) the Agreement; (b) the Transition Services Agreement; (c) the Note; (d) the License Agreement; (e) the Lease Agreement; (e) the Securities Issuance Agreement; (f) Software License, Services and Co-Marketing Agreement; and (g) all other documents and agreements delivered or to be delivered in connection with the Transactions.
-4-
Transactions. “Transactions” shall mean: (a) the execution and delivery of the respective Transactional Agreements; and (b) all of the transactions contemplated by the respective Transactional Agreements, including: (i) the sale of the Transferred Assets by Seller to Purchaser in accordance with the Agreement; (ii) the assumption of the Assumed Liabilities by Purchaser in accordance with the Agreement; and (iii) the performance by Seller and Purchaser of their respective obligations under the Transactional Agreements, and the exercise by Seller and Purchaser of their respective rights under the Transactional Agreements.
Transferred Employees. “Transferred Employees” shall mean employees of Seller who accept an offer of employment with Purchaser and who commence employment with Purchaser on the day following the Closing Date.
Transferred Product. “Transferred Product” shall mean each product and service currently being designed, developed, manufactured, marketed, distributed, provided, licensed or sold by Seller in connection with the Business.
-5-
Schedule 1.1(a) | - | Transferred IP | ||
Schedule 1.1(b) | - | Transferred Fixed Assets | ||
Schedule 1.1(c) | - | Transferred Contracts | ||
Schedule 1.1(d) | - | LEA Software Assets | ||
Schedule 1.1(e) | - | Transferred Receivables (final Schedule to be delivered at Closing) | ||
Schedule 1.1(f) | - | Transferred Inventory (final Schedule to be delivered at Closing) | ||
Schedule 1.1(g) | - | Cash (final Schedule to be delivered at Closing) | ||
Schedule 1.3(a) | - | Assumed Liabilities (final Schedule to be delivered at Closing) | ||
Schedule 6.9(b) | - | Dispute Resolution Procedures | ||
LIST OF EXHIBITS | ||||
Exhibit A | - | Certain Definitions | ||
Exhibit B | - | License Agreement | ||
Exhibit C | - | Assumption Agreement | ||
Exhibit D | - | Note | ||
Exhibit E | - | Warrant | ||
Exhibit F | - | Xxxx of Sale | ||
Exhibit G | - | Securities Issuance Agreement | ||
Exhibit H | - | Purchaser Closing Certificate | ||
Exhibit I | - | Certificate of Incorporation |
The Schedules and Exhibits listed above have been omitted, other than Exhibit A. Symyx Technologies, Inc. will furnish supplementally a copy of any omitted Schedule or Exhibit to the Securities and Exchange Commission upon request.
-6-