EXHIBIT 99.2
XXXX OF SALE
THIS XXXX OF SALE is made as of January 9, 1998 by and from Lucent
Technologies Inc., a Delaware corporation ("Transferor") having offices at
000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000, to and in favor of Data
Systems & Software Inc., a Delaware corporation ("Transferee"), having
offices located at 000 Xxxxx 00, Xxxxxx, Xxx Xxxxxx 00000.
WHEREAS, Transferor desires to sell, transfer and convey to Transferee, and
Transferee desires to purchase and accept from Transferor, all of the LCCU
Assets (as defined below);
NOW, THEREFORE, in consideration of good and valuable consideration receipt of
which is hereby acknowledged, the License Agreement, and the mutual promises set
forth herein, the parties hereby agree as follows:
1. Definitions. As used herein the following terms shall have the
following meanings:
"Business" shall mean the business previously conducted by the
Transferor's Utility Solutions Strategic Business Unit for the
development and marketing of the two-way communication system for
utilities known as the Lucent Customer Connection for Utilities
("LCCU").
"Excluded Assets" shall mean the following assets: (i) real property;
(ii) intellectual property and business rights covered by the License
Agreement; and (iii) furniture and fixtures.
"LCCU Assets" shall mean all the assets on Schedule I hereto.
"License Agreement" shall mean the License Agreement dated as of the
date hereof by and between Transferor and Transferee.
2. Sale of the LCCU Assets. Transferor does hereby sell, grant, bargain,
assign, transfer and convey to the Transferee all right, title and
ownership interest in and to the LCCU Assets.
3. Representations and Warranties of Transferor.
(a) Transferor has the power and authority to enter into this Xxxx of
Sale, to perform its obligations thereunder and to consummate the
transactions contemplated thereby.
(b) The execution by Transferor of this Xxxx of Sale and the
performance by Transferor of its obligations thereunder have been duly
authorized by all necessary corporate action on the part of
Transferor.
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(c) The Xxxx of Sale constitutes the valid and legally binding
obligation of Transferor, enforceable against Transferor in accordance
with its terms.
(d) Transferor warrants that the LCCU Assets are in good operating
condition in light of their respective ages and free of any defects
except those resulting from normal wear and operation. Transferor
further warrants that it has good and marketable title to all the LCCU
Assets free of all liens, claims, security interests, past due unpaid
taxes or other charges or other encumbrances of any kind except
Permitted Encumbrances as set forth on Schedule 2 hereof. The
warranties contained herein shall survive for a period of 12 months
from the date of execution of this Xxxx of Sale. THE TRANSFEROR
HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO SUCH PROPERTY. IN NO
EVENT SHALL TRANSFEREE BE ENTITLED TO RECOVER INDIRECT, SPECIAL,
CONSEQUENTIAL OR INCIDENTAL DAMAGES FROM LUCENT AS A RESULT OF A
BREACH HEREOF AND TRANSFEROR'S AGGREGATE LIABILITY FOR ALL WARRANTY
CLAIMS SHALL NOT EXCEED $100,000.00 IN VALUE.
(e) To the knowledge of Transferor, the LCCU Assets are all the
tangible assets (except for the Excluded Assets), which are owned or
held by Transferor, which were used or held for use by Transferor
exclusively in connection with the Business, and which are necessary
for operation of Business. For purposes of this Xxxx of Sale, the
term "knowledge of Transferor shall have the same meaning as
"knowledge of LUCENT" as defined in Section 8.01 of the License
Agreement.
4. Representations and Warranties of Transferee.
(a) Transferee has the power and authority to enter into this Xxxx of
Sale, to perform its obligations thereunder and to consummate the
transactions contemplated thereby.
(b) The execution by Transferee of this Xxxx of Sale and the
performance by Transferee of its obligations thereunder have been duly
authorized by all necessary corporate action on the part of
Transferee.
(c) The Xxxx of Sale constitutes the valid and legally binding
obligation of Transferee, enforceable against Transferee in accordance
with its terms.
5. No Assumption of Liabilities. Transferee will not assume, or be
responsible for any liabilities of Transferor of any kind, related to the
Business or otherwise incurred prior to the date hereof, and Transferor shall
indemnify and hold the Transferee harmless from any such losses, expenses, costs
or liabilities which may be incurred by Transferee as a result of such
liabilities. Notwithstanding the foregoing, Transferee shall be responsible for
any and all liabilities incurred by Transferor as a result of actions of
persons, including employees of Transferee, acting on behalf of Transferee and
Transferee shall indemnify and hold the
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Transferor harmless from any such losses, expenses, costs or liabilities which
may be incurred by Transferor as a result of such liabilities.
6. Bulk Sales Law. Transferee hereby waives compliance by Transferor
with the requirements and provisions of any "bulk-transfer" laws of any
jurisdiction that may otherwise be applicable with respect to the sale of any
or all of the Assets to Transferee.
7. Taxes. Transferee agrees to pay all applicable sales, transfer,
excise, value added, use or other similar taxes and all recording and filing
fees, whether levied on Transferor or Transferee, that are payable by reason of
the sales, transfers, leases, rentals, licenses, and assignments contemplated
hereby, except for Transferor's income and capital gains taxes or franchise or
other taxes based on Transferor's income.
8. Delivery. All LCCU Assets shall be delivered to Transferee at a
single location at Transferor's facility at 00 Xxxxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxxxx. Such location shall be equipped with a loading dock accessible to
Transferee or its agents. Transferor shall at no additional charge pack Assets
in accordance with its standard practices for domestic shipment. Transferor
will invoice Transferee for adherence to any packing instructions from
Transferee which cause Transferor to pack LCCU Assets in other than its normal
manner for domestic shipments. Title and risk of loss shall pass to Transferee
upon delivery of LCCU Assets into the possession of Transferee, its employee,
agent or carrier at Transferor's said offices in Whippany, New Jersey.
Transferee shall arrange and be responsible for any and all transportation,
carrier or shipping costs related to the transfer of the LCCU Assets from
Transferor's said Whippany, New Jersey location.
9. Successors and Assigns. This Xxxx of Sale shall inure to the benefit
of and be binding upon the Transferor and the Transferee and their respective
successors and assigns.
10. Further Assurances. Transferor and Transferee agree to perform all
such additional actions and execute, acknowledge and deliver all such
assignments, transfers, consents and other instruments as shall be necessary or
desirable to effectuate the transactions contemplated herein.
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11. License Agreement. This Xxxx of Sale is subject to and conditioned
upon execution of the License Agreement.
IN WITNESS WHEREOF, the Transferor has caused this Xxxx of Sale to be duly
executed on its behalf by its duly authorized officers as of the day and year
first written above.
LUCENT TECHNOLOGIES INC.
By: /s/ Xxxxxx X. Xxxx
------------------------
Printed Name: Xxxxxx X. Xxxx
Title: Vice President, Business Operations
Accepted and Agreed:
DATA SYSTEMS & SOFTWARE INC.
By: /s/ Xxxxx Xxxxxxx
-----------------------
Printed Name: Xxxxx Xxxxxxx
Title: Vice President
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