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EXHIBIT 2.02
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "AGREEMENT") is made as of
September 30, 1999 (the "EFFECTIVE DATE"), by and between Talarian Corporation,
a California corporation ("PURCHASER") and GlobalCast Communications, Inc., a
California corporation (the "COMPANY").
RECITALS
A. Company has engaged in the business of developing multicast
networking software and is now winding down its business.
B. The parties hereto desire that Company sell to Purchaser and
Purchaser purchase from Company substantially all of the remaining assets of
Company pursuant to the terms of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. PURCHASE AND SALE OF ASSETS.
1.1 DEFINITION. For purposes of this Agreement, "PURCHASED ASSETS" means,
collectively, all of the assets, documents, rights and properties of Company
(except for excess cash as set forth in Section 1.1(c) below), free and clear of
any liens or encumbrances, which assets include, but are not limited to, the
following:
(a) All of the software products of Company, including without
limitation, the software listed on SCHEDULE 1.1(A), including any and all source
and object codes, binaries, supplements, modifications, updates, corrections and
enhancements to past and current versions of such products, shipping versions of
such products and versions of such products currently under development, and any
and all English and foreign language versions and back-up and archival tapes
from Company's storage facilities of past and current versions of such products;
in each case for all markets (collectively, the "SOFTWARE").
(b) Documentation. Copies of all design and use documentation
for the Software.
(c) Lucent License. All right, title and interest in and to
the License Agreement between Lucent Technologies, Inc. ("LUCENT") and Company
dated July 25, 1997, as amended on April 7, 1998 (the "LUCENT LICENSE").
(d) Other Licenses. All right, title and interest in and to
the licenses from West Virginia University, University of Illinois, Yongiing Wu,
Xxxxxx Xxxx, Xxxxxxx Xxx
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Xxxxxxxx, Xxx Xx, Xxxx Xxxxxxx Xxxxxxxx, Xxxxx Xxxxxxx and Xxxx X. Xxxxxxxxxx
listed under "Distribution Agreements - Licenses being assigned to Talarian" on
Schedule 3.6. The license from Old Dominion University is not being assigned to
Talarian, nor is Talarian being assigned any of the licenses listed under
"Distribution Agreements - Licenses not being assigned to Talarian" on Schedule
3.6, and Talarian is not responsible for any obligations thereunder.
(e) Rights to Intellectual Property. All right, title and
interest in and to all intellectual property owned by Company, including without
limitation (i) those patents and patent applications, and registered copyrights
and applications therefor, listed in SCHEDULE 1.1(B) hereto, and (ii) those
trademarks, trade names and service marks listed on SCHEDULE 1.1(C) hereto (and
any registrations and applications for such marks), together with the goodwill
of the business connected with the use of and symbolized by said marks and (iii)
all of the know-how and trade secrets relating to the Purchased Assets
(collectively, "COMPANY INTELLECTUAL PROPERTY").
(f) Cash. Cash and cash equivalents of the Company in an
amount equal to $400,000. Any amounts in excess of $400,000 will be retained by
the Company.
(g) Cancellation of Indebtedness. Cancellation of licensing
fees in the amount of $155,000 owed by Purchaser to Company pursuant to a
license agreement entered into between Purchaser and Company as of May 18, 1998.
1.2 AGREEMENT TO SELL AND PURCHASE THE PURCHASED ASSETS. Company hereby
agrees to sell, assign, transfer and convey to Purchaser at the Closing (as
defined in Section 2.3 hereof), and Purchaser agrees to purchase and acquire
from Company at the Closing, all right, title and interest in and to all of the
Purchased Assets, subject to Company's retained rights set forth in Section 5.6.
1.3 TRANSFER OF PURCHASED ASSETS; PASSAGE OF TITLE; DELIVERY.
(a) TITLE PASSAGE. Except as otherwise provided in this
Section 1.3, upon the Closing, title to all of the Purchased Assets will pass to
Purchaser; Company will deliver to Purchaser possession of all of the Purchased
Assets as provided in Section 1.3(b) hereof; and Company will further execute
and/or deliver to Purchaser (i) the Assignment, Xxxx of Sale and Assumption
Agreement attached as EXHIBIT A hereto, (ii) the consents and assignments of
contracts and Company Intellectual Property as set forth on SCHEDULE 1.3(A)
attached hereto, and (iii) such other instruments of conveyance as Purchaser may
reasonably request (both at and after the Closing) to effect or evidence the
transfers contemplated hereby.
(b) DELIVERY OF PURCHASED ASSETS FREE AND CLEAR OF
RESTRICTIONS. Company hereby represents to Purchaser that it owns, and will
convey to Purchaser at the Closing, the Purchased Assets free and clear of any
and all Liens (as defined in Section 3.4). To the extent practicable, Company
shall deliver the Software included in the Purchased Assets electronically.
Purchaser hereby acknowledges that, to the best of its knowledge, it has
received from Company all Purchased Assets.
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1.4 BULK SALES. Purchaser hereby waives any requirement for compliance
with the provisions of Article 6 of the Uniform Commercial Code concerning bulk
sales or any similar law. Company agrees to indemnify Purchaser and hold
Purchaser harmless from any claim, loss, liability, expense or obligation
(including without limitation attorneys' fees and costs) arising out of or
relating to any non-compliance (or alleged non-compliance) with such laws, and
shall, without limitation, reimburse Purchaser for all costs (including without
limitation attorneys' fees and costs), as the same are incurred, of
investigation, prosecution, defense or settlement of any claim or action arising
out of relating to any of the foregoing.
1.5 NON ASSUMPTION OF LIABILITIES; EXCLUDED ASSETS. Except for
liabilities and obligations under the Lucent License and those licenses being
assigned to Talarian pursuant to Section 1.1(d) arising after the date hereof,
the Purchased Assets shall not include, Purchaser is not assuming and shall not
be liable for, and Company shall retain and, as between Purchaser and Company,
remain solely liable for and be obligated to discharge, all of the debts,
contracts, agreements, commitments, obligations and other liabilities of any
nature of Company, whether known or unknown, accrued or not accrued, fixed or
contingent, due or to become due, and arising out of or resulting from the
operations of Company at any time before or after the date hereof, including,
without limitation, any liabilities resulting from the sale of the Purchased
Assets constituting a "bulk sale" under any state commercial code, any
obligation to Lifecycle Systems or any liabilities under Company's warrant
issued to Silicon Valley Bank. In addition, Purchased Assets shall not include
Company's minute books and stock records.
2. PURCHASE PRICE.
2.1 PURCHASE PRICE. Purchaser and Company hereby agree that the full
purchase price (the "PURCHASE PRICE") to be paid by Purchaser to Company for the
sale, transfer, conveyance and assignment of all the Purchased Assets to
Purchaser shall consist of 552,600 shares of Purchaser's Common Stock
(collectively, the "SHARES") issued to Company in the form of a stock
certificate issued at the Closing in the name of GlobalCast Communications, Inc.
2.2 TAX-FREE TRANSACTION. The parties intend to treat this transaction
as a tax-free plan of reorganization and to consummate the acquisition in
accordance with the provisions of Section 368(a)(1)(C) of the Code. The parties
believe that the value of the Shares to be received in this transaction is
equal, to the value of the Purchased Assets to be surrendered in exchange
therefor. The Shares issued in this transaction will be issued solely in
exchange for the Purchased Shares, and no other transaction other than this
transaction represents, provides for or is intended to be an adjustment to, the
consideration paid for the Purchased Assets. No consideration that could
constitute "other property" within the meaning of Section 356 of the Code is
being paid by Purchaser for the Purchased Assets in this transaction. The
parties shall not take a position on any tax returns inconsistent with this
Section 2.2. In addition, Purchaser represents now, and as of the Closing, that
it presently intends to continue Company's historic business or use a
significant portion of Company's business assets in a business.
2.3 CLOSING. The consummation of the transaction contemplated hereby
will take place at a closing to be held at the offices of Fenwick & West,
located at Two Palo Alto Square,
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Palo Alto, California (the "CLOSING") on September __, 1999, or at such other
time or date, and at such place, or by such other means of exchanging documents,
as may be agreed to by the parties hereto. The date on which the Closing
actually occurs will be referred to as the "CLOSING DATE".
3. REPRESENTATIONS AND WARRANTIES OF COMPANY.
Company represents and warrants to Purchaser that, except as set forth
in SCHEDULE 3 attached hereto (the "SCHEDULE OF EXCEPTIONS"), each of the
following statements is true, accurate and correct as of the Closing:
3.1 DUE ORGANIZATION AND CORPORATE POWERS. Company is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of California and has full corporate power and authority and the legal
right to own and use the Purchased Assets. Company has full corporate power and
authority to enter into this Agreement and to enter into all assignments or
other documents that Company is required to execute and deliver hereunder (the
"COMPANY ANCILLARY DOCUMENTS") and to consummate the transactions contemplated
hereby and thereby. Company holds all permits, licenses, orders and approvals of
all federal, state and local governmental or regulatory bodies necessary and
required therefor.
3.2 AUTHORIZATION AND VALIDITY OF AGREEMENT. The execution, delivery
and performance by Company of this Agreement and the Company Ancillary
Documents, and the consummation of all the transactions contemplated hereby and
thereby, will have been duly and validly authorized by all necessary corporate
action, including actions by the Company's Board of Directors and shareholders.
This Agreement, when executed and delivered by Company, and the Company
Ancillary Documents, when executed and delivered by Company, will be duly and
validly executed and delivered and will be the respective valid and binding
obligations of Company, enforceable against Company in accordance with their
respective terms except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally or by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
3.3 NO VIOLATION. Neither the execution and delivery of this Agreement
by Company, nor the execution and delivery by Company of the Company Ancillary
Documents, nor the performance by Company of its respective obligations under
this Agreement or the Company Ancillary Documents will (i) conflict with,
violate or result in any breach of the terms, conditions or provisions of the
articles, bylaws or other organizational documents or agreements of Company;
(ii) result in a material violation or breach of, or permit any third party to
rescind any term or provision of, or constitute a default under, any loan,
notice, note, indenture, mortgage, deed of trust, security agreement, lease or
material contract, contract, license, lease or other agreement or obligation to
which Company is a party or by which Company or any of the Purchased Assets is
bound or (iii) violate in any material respect any law, statute, rule or
regulation or order, writ, judgment, injunction or decree of any Governmental
Entity (as defined in Section 3.5).
3.4 TITLE. Company has good and marketable title to or, in the case of
the Lucent License, valid rights thereunder, all of the Purchased Assets, free
and clear of all mortgages,
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pledges, liens, licenses, rights of possession, security interests,
restrictions, encumbrances, charges, title retention, conditional sale or other
security arrangements and all claims or agreements of any nature whatsoever,
other than statutory liens in favor of federal, state and local taxing
authorities arising in the ordinary course of business securing the payment of
taxes that are not yet due and payable (collectively, "LIENS"). Company has the
complete and unrestricted power and the unqualified right to sell, assign and
deliver the Purchased Assets to Purchaser without obtaining the consent or
approval of any person or party. Upon consummation of the transactions
contemplated by this Agreement, Purchaser will acquire valid title to or, in the
case of the Lucent License, valid rights thereunder, the Purchased Assets free
and clear of any Liens. No person other than Company has any right or interest
in the Purchased Assets, including the right to grant interests in the Purchased
Assets to third parties.
3.5 CONSENTS AND APPROVALS OF GOVERNMENTAL ENTITIES. There is no
requirement applicable to Company to make any filing, declaration or
registration with, or to obtain any permit, authorization, consent or approval
of, any Governmental Entity as a condition to the lawful consummation by Company
of the transactions contemplated by this Agreement and the Company Ancillary
Documents. "GOVERNMENTAL ENTITY" shall mean any court, or any Federal, state
municipal or other governmental authority, department, commission, board, agency
or other instrumentality (domestic or foreign).
3.6 DISTRIBUTION AGREEMENTS, ETC. All distribution agreements, license
agreements, sales representative agreements, or other agreements or
understandings relating to the Purchased Assets, either in the United States or
outside of the United States, are specifically identified in SCHEDULE 3.6.
Except as separately set forth in Schedule 3.6, the transactions contemplated by
this Agreement do not require the consent of any third party to such other
agreement or understanding. Except as set forth in Schedule 3.6, all such
agreements or understandings are terminable by Purchaser, without payment or
penalty and upon no more than sixty (60) days prior notice. Purchaser is not
undertaking any obligation or liability under such agreements except under the
Lucent License as set forth in Section 1.5 herein.
3.7 ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth in this
Agreement or the Schedules hereto, there are no other debts, liabilities or
obligations of any nature (whether absolute, contingent, accrued, known,
unknown, due or to become due) of the Company.
3.8 LITIGATION. There is no claim, action, suit, inquiry, proceeding or
investigations relating to Company or the Purchased Assets which are currently
pending or, to the best of Company's knowledge, threatened against Company at
law, in equity, by way of arbitration or before or by any Governmental Entity.
There are no judgments, decrees, injunctions or orders of any Governmental
Entity against Company affecting the Purchased Assets. There are no claims
relating to any of the Purchased Assets containing allegations that the
Purchased Assets are defective or in breach of any warranty, or were improperly
designed or manufactured or improperly labeled, except for such claims which
could not have a material adverse effect on the Purchased Assets.
3.9 INTELLECTUAL PROPERTY.
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(a) Ownership; No Notice of Infringement. Company owns all
Company Intellectual Property, including, without limitation, the Software free
and clear of any Liens, subject to the Lucent License. To the Company's
knowledge, the Purchased Assets and their expected use do not infringe or
violate any of the patents, trademarks, service marks, trade names, copyrights,
trade secrets, proprietary rights or other intellectual property of any other
person or entity. Company has taken reasonable measures to protect all Company
Intellectual Property and Company is not aware of any infringement of any
Company Intellectual Property by any third party. Company has not received any
written or oral claim or notice of infringement or potential infringement of the
intellectual property of any other person or entity. In addition, there is no
pending or threatened claim by Company against any person or entity for
infringement, misuse or misappropriation of any Purchased Assets nor is Company
aware of any such infringement, misuse or misappropriation.
(b) No Warranties for Software. Except as otherwise set forth
in this Section 3.9, the Software is being sold to Purchaser "as-is" and without
any implied warranties of merchantability or fitness for a particular purpose.
(c) Rights Assignment and Nondisclosure Agreements. A copy of
Company's standard form of nondisclosure or confidentiality agreement utilized
to protect the Company Intellectual Property has been provided to Purchaser. All
employees and any other third parties who have been involved in development of
the Purchased Assets for Company have executed confidentiality and invention
assignment agreements, wherein they have assigned all of their rights in any
Company Intellectual Property developed, created, invented or reduced to
practice by them to Company. All employees who have or have had access to
confidential or trade secret information concerning technology or products
related to the Purchased Assets have executed nondisclosure agreements in favor
of Company requiring such employees to maintain the confidentiality of such
information.
(d) Lucent License. Company holds the Lucent License free and
clear of any Liens. The Lucent License is currently in full force and effect and
the consummation of the transactions contemplated by this Agreement will not
violate or otherwise breach the Lucent License.
3.10 COMPLIANCE WITH LAWS. Company has, to the best knowledge of
Company, duly complied with all applicable laws, rules, regulations and orders
of all Governmental Entities (including but not limited to all export control
laws and regulations of the United States of America or any governmental
authority or agency of the United States government), except where the failure
to comply would not have a material adverse effect on the Purchased Assets, and
Company is not in default with respect to any order, judgment, writ, injunction,
decree, award, rule or regulation of any court, or any Governmental Entity that
affect any of the Purchased Assets.
3.11 TAXES. All sales and use taxes, real and personal property taxes,
gross receipts taxes, documentary transfer taxes, withholding taxes,
unemployment insurance contributions and other taxes or governmental charges of
any kind, however denominated, including any interest,
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penalties and additions to tax in respect thereto, for which Purchaser could
become liable as a result of acquiring the Purchased Assets or which could
result in a Lien on or charge against the Purchased Assets (collectively,
"TAXES") have been or will be paid for all periods (or portions thereof) prior
to the due dates thereof. Company and any other person required to file returns
or reports of Taxes have been duly and timely filed (or will file prior to the
Closing Date) all returns and reports of Taxes required to be filed prior to
such date, and all such returns and reports are true, correct and complete.
There are no Liens for Taxes on any of the Purchased Assets. There are no
pending or, to the best knowledge of Company, threatened proceedings with
respect to Taxes, and there are no outstanding waivers or extensions of statutes
of limitations with respect to assessments of Taxes. Company is not a "foreign
person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of
1986, as amended.
3.12 FAIR CONSIDERATION; NO FRAUDULENT CONVEYANCE. The sale of the
Purchased Assets pursuant to this Agreement is made in exchange for fair and
equivalent consideration, and Company is not now insolvent and will not be
rendered insolvent by the sale, transfer and assignment of the Purchased Assets
pursuant to the terms of this Agreement. Company is not entering into this
Agreement and the Company Ancillary Documents with the intent to defraud, delay
or hinder its creditors and the consummation of the transactions contemplated by
this Agreement and the Company Ancillary Documents referenced in this Agreement
will not have any such effect. The transactions contemplated in this Agreement
or any Company Ancillary Document will not constitute a fraudulent conveyance,
or otherwise give rise to any right of any creditor of Company whatsoever to any
of the Purchased Assets in the hands of Purchaser after the Closing.
3.13 CREDITORS. Attached hereto as SCHEDULE 3.13 is a complete and
accurate list of all existing creditors and persons holding claims to payment by
Company, including all amounts payable by Company to each such persons.
3.14 FULL DISCLOSURE. No representation or warranty by Company in this
Agreement, the Company Ancillary Documents, or in any document, statement,
certificate or schedule furnished or to be furnished to Purchaser by (or on
behalf of) Company pursuant thereto, contains, or will when furnished contain,
any untrue statement of a material fact, or omits, or will then omit to state, a
material fact necessary to make any statement of facts contained herein or
therein not materially misleading. There have been no events or transactions, or
information which has come to the attention of Company which, as related
directly to Company or the Purchased Assets, would have a material adverse
effect on the Purchased Assets.
3.15 INVESTOR REPRESENTATIONS. Company understands, acknowledges and
agrees to the following:
(a) Purchase for Own Account. The Shares to be received by
Company hereunder will be acquired for investment for Company's own account, not
as a nominee or agent, and not with a view to the public resale or distribution
thereof within the meaning of the Securities Act of 1933, as amended, (the "1933
ACT"), and Company has no present intention of selling, granting any
participation in, or otherwise distributing the same, except for the
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distribution of the Shares to no more than 46 current shareholders each of whom
is an "accredited investor" as defined in Rule 501(a) under Regulation D of the
1933 Act, each of whom will have executed an Investor Representation Letter
substantially in the form of EXHIBIT B hereto prior to any such distribution.
Company also represents that it has not been formed for the specific purpose of
acquiring the Shares.
(b) Disclosure of Information. Company has received or has had
full access to all the information it considers necessary or appropriate to make
an informed investment decision with respect to the Shares to be received under
this Agreement. Company further has had an opportunity to ask questions and
receive answers from Purchaser regarding Purchaser's business and to obtain
additional information (to the extent Purchaser possessed such information or
could acquire it without unreasonable effort or expense) necessary to verify any
information furnished to Company or to which Company had access. The foregoing,
however, does not in any way limit or modify the representations and warranties
made by Purchaser in Section 4.
(c) Investment Experience. Company understands that the
receipt of the Shares involves substantial risk. Company: (i) has experience as
an investor in securities of companies in the development stage and acknowledges
that it is able to fend for itself, can bear the economic risk of its investment
in the Shares and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of this investment
in the Shares and protecting its own interests in connection with this
investment and/or (ii) has a preexisting personal or business relationship with
Purchaser and certain of its officers, directors or controlling persons of a
nature and duration that enables Company to be aware of the character, business
acumen and financial circumstances of such persons.
(d) Restricted Securities. Company understands that the Shares
are characterized as "restricted securities" under the 1933 Act inasmuch as they
are being acquired from Purchaser in a transaction not involving a public
offering and that under the 1933 Act and applicable regulations thereunder such
securities may be resold without registration under the 1933 Act only in certain
limited circumstances. In this connection, Company represents that it is
familiar with Rule 144 of the U.S. Securities and Exchange Commission (the
"SEC"), as presently in effect, and understands the resale limitations imposed
thereby and by the 1933 Act. Company understands that Purchaser is under no
obligation to register any of the securities sold hereunder. Company understands
that no public market now exists for any of the Shares and that it is uncertain
whether a public market will ever exist for the Shares.
(e) Further Limitations on Disposition. Without in any way
limiting the representations set forth above, Company further agrees not to make
any disposition of all or any portion of the Shares unless and until:
(i) there is then in effect a registration statement
under the 1933 Act covering such proposed disposition and such
disposition is made in accordance with such registration statement; or
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(ii) Company shall have notified Purchaser of the
proposed disposition and shall have furnished Purchaser with a
statement of the circumstances surrounding the proposed disposition,
and, at the expense of Company or its transferee, with an opinion of
counsel, reasonably satisfactory to Purchaser, that such disposition
will not require registration of such securities under the 1933 Act.
Notwithstanding the provisions of paragraphs (i) and (ii) above, no such
registration statement or opinion of counsel shall be required: (I) for any
transfer of any Shares in compliance with SEC Rule 144 or Rule 144A, or (II) for
any transfer of Shares by (A) Company to not more than 40 shareholders, all of
whom are "accredited investors" or (B) the estate of any such shareholder;
provided that in each of the foregoing cases the transferee agrees in writing to
be subject to the terms of this Section 3.15 to the same extent as if the
transferee were an original investor hereunder.
3.16 LEGENDS. It is understood that the certificates evidencing the
Shares will bear the legends set forth below:
(a) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED
OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
INVESTOR SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY
PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS. THE ISSUER OF THESE SECURITIES WILL
NOT REQUIRE AN OPINION OF COUNSEL (I) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 OR RULE 144A UNDER THE ACT, (II) IN ANY
TRANSFER OF THESE SECURITIES BY THE INVESTOR TO NOT MORE THAN 40
SHAREHOLDERS OF THE INVESTOR EACH OF WHOM IS AN "ACCREDITED INVESTOR,"
(III) IN ANY TRANSFER OF THESE SECURITIES BY THE ESTATE OF ANY SUCH
SHAREHOLDER OF THE INVESTOR, AND IN EACH OF CASES (I) THROUGH (III) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES, AND THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THESE SECURITIES OF THE RESALE
RESTRICTIONS REFERRED TO ABOVE.
The legend set forth above shall be removed by Purchaser from any certificate
evidencing Shares upon delivery to Purchaser of an opinion by counsel,
reasonably satisfactory to Purchaser, that a registration statement under the
1933 Act is at that time in effect with respect to the legended security or that
such security can be freely transferred in a public sale without such a
registration statement being in effect and that such transfer will not
jeopardize the exemption or exemptions from registration pursuant to which
Purchaser issued the Shares.
3.17 SECURITIES REPRESENTATIONS. Company further represents and
warrants to Purchaser that the following are true and correct as of the Closing:
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(a) At least seventy-five percent (75%) of the outstanding
shares of Company's capital stock, on an as-converted basis, entitled to vote on
this Agreement and the transactions contemplated hereby voted in favor of the
Agreement and such transactions;
(b) Not more than ten percent (10%) of the outstanding shares
of Company's capital stock, on an as-converted basis, entitled to vote on this
Agreement and the transactions contemplated hereby voted against the Agreement
and such transactions; and
(c) All holders of outstanding shares of Company's capital
stock entitled to vote on this Agreement and the transactions contemplated
hereby have, and have been properly informed of, their dissenters' rights under
Chapter 13 of the California General Corporation Law or any other applicable
federal or state law ("DISSENTERS' RIGHTS").
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Company as follows:
4.1 DUE ORGANIZATION. Purchaser (i) is duly organized, validly existing
and in good standing under the laws of the State of California and (ii) has the
corporate power and authority and the legal right to own and operate its
property, to lease the property it operates as lessee and to conduct its
business as now being conducted and as proposed to be conducted, except to the
extent the failure to have such power, authority or legal right would not, in
the aggregate with all such other failures, have a material adverse effect on
Purchaser.
4.2 CORPORATE POWER. Purchaser has all requisite corporate power and
authority to enter into and deliver this Agreement and each related agreement
and to perform its obligations hereunder and thereunder. Purchaser is not in
default in the performance, observance or fulfillment of any provision of its
charter documents.
4.3 AUTHORIZATION AND VALIDITY OF AGREEMENT. The execution, delivery
and performance by Purchaser of this Agreement and each related agreement and
the consummation by it of the transactions contemplated hereby and thereby have
been duly authorized by all requisite corporate action. Except as otherwise
contemplated by this Agreement, no other corporate action on the part of
Purchaser is necessary for the execution, delivery and performance by Purchaser,
as applicable, of this Agreement and each related agreement and the consummation
by Purchaser, as applicable, of the transactions contemplated hereby and
thereby. This Agreement and each related agreement has been duly executed and
delivered by Purchaser, and this Agreement and the related agreements constitute
the legally valid and binding obligations of Purchaser, enforceable against it
in accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
4.4 CAPITALIZATION. As of the Closing Date, the authorized capital
stock of Purchaser consists of (i) 15,000,000 shares of Common Stock of which
3,204,305 shares are issued and
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outstanding, all of which are validly issued, fully paid and non-assessable, and
(ii) 8,449,915 shares of preferred stock, of which 2,152,692 shares are
designated Series A Preferred Stock, of which 2,017,552 shares are issued and
outstanding; 1,422,223 shares are designated Series B Preferred Stock, of which
1,388,889 shares are issued and outstanding and are convertible into 1,447,278
shares of Common Stock; and 4,875,000 shares are designated Series C Preferred
Stock, of which 3,775,000 shares are issued and outstanding. As of the Closing,
there are outstanding warrants to purchase 128,140 shares of Series A Preferred
Stock, and outstanding warrants to purchase 33,334 shares of Series B Preferred
Stock, which are convertible into 34,734 shares of Common Stock. As of the
Closing, options to purchase 749,000 shares of Common Stock are issued and
outstanding pursuant to Purchaser's 1991 Stock Option Plan, as amended, and
options to purchase 1,015,187 shares of Common Stock are issued and outstanding
pursuant to Purchaser's 1998 Stock Option Plan, as amended. All of the issued
and outstanding shares of Common Stock are, and all shares reserved for issuance
will be upon issuance in accordance with the terms specified in the instruments
or agreements pursuant to which they are issuable (including pursuant to this
Agreement), duly authorized, validly issued, fully paid and nonassessable.
4.5 NO CONFLICT, REQUIRED FILINGS AND CONSENTS.
(a) The execution, delivery and performance of this Agreement
by Purchaser do not and will not (i) conflict with or violate Purchaser's
Articles of Incorporation or By-Laws, (ii) materially conflict with or violate
any law, rule, regulation, order, judgment or decree applicable to Purchaser, or
(iii) result in any material breach of or constitute a material default under,
or impair Purchaser's rights, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a Lien
on any of the properties or assets of Purchaser pursuant to any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation.
(b) The execution, delivery and performance of this Agreement
by Purchaser does not and will not require any consent, approval, authorization
or permit of, or filing with or notification to, any Governmental Entity, except
for applicable requirements, if any, of the 1933 Act, and any applicable state
blue sky laws which shall be completed either before or promptly after the
Closing.
4.6 LEGAL PROCEEDINGS. There are no claims, actions, suits, proceedings
or investigations pending or, to the knowledge of Purchaser, threatened against
Purchaser or any of its assets and properties before any Governmental Entity.
4.7 FINANCIAL STATEMENTS. Purchaser has delivered to the Company an
unaudited balance sheet as of September 30, 1998 and an unaudited balance sheet
for the ten months ended July 31, 1999, and the related audited statement of
income for the year ended September 30, 1998 and the related unaudited statement
of income for the eleven months ended July 31, 1999, respectively (such balance
sheets and statements of income are collectively referred to as the "FINANCIAL
STATEMENTS"). The Financial Statements, together with the notes thereto, are
complete and correct in all material respects, have been prepared in accordance
with generally
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accepted accounting principles applied on a consistent basis throughout the
periods indicated, except as disclosed therein, and present fairly the financial
condition and position of the Purchaser as of September 30, 1998 and July 31,
1999; provided, however, that the unaudited financial statements are subject to
normal recurring year-end audit adjustments (which are not expected to be
material), and do not contain all footnotes required under generally accepted
accounting principles. Except as set forth in the Financial Statements, the
Company has no material liabilities, contingent or otherwise, other than (i)
liabilities incurred in the ordinary course of business subsequent to July 31,
1999, and (ii) obligations under contracts and commitments incurred in the
ordinary course of business and not required under generally accepted accounting
principles to be reflected in the Financial Statements, which, in both cases,
individually or in the aggregate, are not material to the financial condition or
operating results of Purchaser.
4.8 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since the date of the
Financial Statements, Purchaser has conducted its business only in the ordinary
course consistent with past practice, and there has not been (i) any material
adverse change in Purchaser, (ii) any declaration, setting aside or payment of
any dividend or other distribution (whether in cash, stock or property) with
respect to any of Purchaser's capital stock or (iii) any split, combination or
reclassification of any of its capital stock or any issuance or the
authorization of any issuance of any other securities in respect of, in lieu of
or in substitution for shares of its capital stock.
5. COVENANTS.
Company and Purchaser covenant and agree as follows:
5.1 COMPANY LICENSE. Purchaser's license from Company dated as of May
18, 1998 for the RMP and RMTP-II protocols (the "COMPANY LICENSE") is fully paid
up, as set forth in Section 1.1(f) herein, and shall remain in full force and
effect and will survive the assignment of the Lucent License and any other
licenses to Purchaser and any future dissolution of Company. Upon the Closing,
Purchaser shall have no further obligations to make any payments under the
Company License, and Company shall have no further obligations to Purchaser to
provide Purchaser with support, maintenance or engineering under the Company
License. In addition, upon the Closing, the Company shall have no further
delivery obligations to Purchaser under the Company License. Nothing in this
Section 5.1 shall prohibit Company from dissolving.
5.2 DISTRIBUTION OF SHARES. Company agrees not to distribute the Shares
prior to the later of: (i) expiration of the Indemnity Period (as defined in
Section 7.1 herein) and (ii) the resolution of all Claims (as defined in Section
7.4(a)); and it is understood that the certificates evidencing the Shares will
bear the legends set forth below:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
INDEMNITY PROVISIONS AS SET FORTH IN A CERTAIN AGREEMENT BETWEEN THE
ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE
OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. AS A RESULT OF SUCH
AGREEMENT, THESE SHARES REMAIN SUBJECT TO THE INDEMNITY PROVISIONS AND
SUCH RESTRICTIONS ARE BINDING ON TRANSFEREES OF THESE SHARES.
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Company agrees to distribute the Shares only to "accredited investors"
as defined in Rule 501(a) under Regulation D of the 1933 Act, and only in
accordance with Section 3.15 herein. Company agrees that prior to effecting any
such transfer, each transferee will execute and deliver to Purchaser an
Investment Representation Letter, substantially in the form of EXHIBIT B hereto.
Notwithstanding the foregoing, it is agreed that Company may distribute
the Shares to an escrow account or liquidating trust established pursuant to the
liquidation of Company, provided that the liquidation trust or escrow account
shall only distribute the Shares in compliance with Company's obligations under
this Agreement, and shall be responsible for all representations, warranties and
obligations of Company under this Agreement.
5.3 POWER OF ATTORNEY. Company hereby grants a Power of Attorney to
Purchaser for the purpose of taking appropriate action needed to effect the
intent of the transactions contemplated hereby and to give Purchaser its
intended benefit. Without limiting the foregoing, Company hereby assigns its
right to enforce Company Intellectual Property and other rights in the Purchased
Assets to Purchaser, and Purchaser shall hereafter be entitled to enforce such
rights directly or in Company's name.
5.4 COMPLIANCE WITH DISSENTERS' RIGHTS. Company agrees to take the
following actions:
(a) Company shall promptly notify Purchaser in the event any
shareholder exercises his, her or its Dissenters' Rights.
(b) Company shall not distribute any Shares until the earlier
of: (i) the date on which all Dissenters' Rights have expired and no shareholder
has exercised such Dissenters' Rights; and (ii) in the event any shareholders
have exercised their Dissenters' Rights, the date on which Company has properly
satisfied such Dissenters' Rights according to applicable statutes.
5.5 COMPLIANCE WITH STATE BLUE SKY LAWS. Company agrees to promptly
comply with all applicable state blue sky laws.
5.6 COMPANY'S RETENTION OF RIGHTS. To the extent that Company owes any
of its existing licensees any support, maintenance or engineering obligations
which were incurred prior to the Effective Date, Company retains a non-exclusive
right to use and copy the Software and the Company Intellectual Property to
create derivative works based on the Software, and to distribute such derivative
works to such licensees, solely for the purpose of fulfilling such support and
maintenance obligations. Company's rights in the Software will be limited to
those expressly set forth in this Section 5.6. Notwithstanding the foregoing,
Purchaser may, in its sole discretion and at any time, terminate all rights of
Company set forth in this Section 5.6; provided, however that Purchaser must
agree to assume all such support and maintenance obligations from Company.
Purchaser, however, has no obligation to make such assumption.
5.7 COMPANY'S ASSIGNMENT OF LICENSES. Company shall take all necessary
actions to effect the assignment of all purchased assets set forth in Section
1.1, including but not limited to obtaining all required consents and notifying
all such licensors of such assignments.
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6. CONDITIONS TO CLOSING.
6.1 CONDITIONS TO PURCHASER'S OBLIGATIONS. The obligations of
Purchaser hereunder will be subject to the satisfaction and fulfillment of each
of the following conditions, except as Purchaser may expressly waive the same in
writing:
(a) Compliance. The representations and warranties of
Company set forth in this Agreement will be true and accurate in all material
respects on the date of this Agreement and on and as of the Closing Date, with
the same force and effect as if they had been made at the Closing, and Company
shall have complied in all material respects with all covenants required to be
performed or observed by it before the Closing. Purchaser will have received a
certificate to such effect executed by Company's Chief Financial Officer.
(b) Delivery of Purchased Assets. Company will have
delivered and Purchaser will have received the Purchased Assets.
(c) Delivery of Closing Documents. Company will have
delivered, and Purchaser will have received, such other documents relating
hereto as Purchaser may reasonably request, including the fully executed
Agreement and related agreements and copies of consents of the Board of
Directors and shareholders approving this Agreement and the transactions
contemplated hereby.
(d) Third Party Consents Obtained. All executed
copies by Company of the consents and assignments required to be obtained or
executed by Company as set forth in Schedule 1.3(A), if any, necessary to assign
or transfer all of the Purchased Assets (including, but not limited to, Company
Intellectual Property) to Purchaser, free and clear of all Liens, will have been
delivered.
(e) Assignment. Company will have executed and
delivered the Assignment, Xxxx of Sale and Assumption Agreement to the effect
and in the form of EXHIBIT A hereto with respect to the Purchased Assets.
(f) Assignment of Lucent License. Company will have
delivered and Purchaser will have received an executed copy of a letter,
substantially in the form of EXHIBIT C hereto, from Lucent regarding the Lucent
License and consenting to Company's assignment of the Lucent License to
Purchaser.
(g) Requisite Approval. This Agreement and the
transactions contemplated hereby will have been approved by (i) the Board of
Directors of Company and (ii) the holders of at least seventy-five percent (75%)
of the outstanding shares of Company's capital stock, on an as-converted basis,
voting together as a single class. This Agreement and the transactions
contemplated hereby will not have been voted against by more than ten percent
(10%) of the outstanding shares of Company's capital stock, on an as-converted
basis, voting together as a single class. Company will have duly and properly
informed all holders of outstanding shares of Company's capital stock of their
Dissenters' Rights. In addition, Company will have obtained any other required
corporate approvals.
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6.2 CONDITIONS TO COMPANY'S OBLIGATIONS. The obligations of Company
hereunder will be subject to the satisfaction and fulfillment of each of the
following conditions, except as Company may expressly waive the same in writing:
(a) Assignment. Purchaser will have executed and delivered the
Assignment, Xxxx of Sale and Assumption Agreement to the effect and in the form
of EXHIBIT A hereto.
(b) Compliance. The representations and warranties of
Purchaser set forth in this Agreement will be true and accurate in all material
respects on the date of this Agreement and on and as of the Closing Date, with
the same force and effect as if they had been made at the Closing. Company will
have received a certificate to such effect executed by Purchaser's Chief
Executive Officer.
(c) Payment. Purchaser will have delivered the Shares
described in Section 2.1.
(d) Delivery of Closing Documents. Purchaser will have
delivered, and Company will have received, such other documents relating hereto
as Company may reasonably request.
(e) Board of Directors. Company will have the right to have a
person selected by Company elected to Purchaser's Board of Directors, with such
person subject to Purchaser's approval, which will not be unreasonably withheld,
and Purchaser will maintain him or her in such position for at least one year
from the Closing.
7. SURVIVAL OF WARRANTIES AND INDEMNIFICATION.
7.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by Company and Purchaser herein will survive the Closing for a
period of fifteen (15) months (the "INDEMNITY PERIOD"); provided, however, that
the Indemnity Period will be reduced to an aggregate period of twelve (12)
months upon the closing of an initial public offering of Purchaser's common
stock in a firmly underwritten registered offering under the Securities Act of
1933, as amended, or the sale of the Company by merger, reorganization, sale of
all or substantially all of the Company's assets or otherwise, in which the
shareholders of the Company immediately prior to such transaction hold
immediately following such transaction less than a majority in interest of the
capital stock of the Company or its successor.
7.2 INDEMNIFIED LOSSES. For the purpose of this Section 7, "LOSS" will
mean and include any and all liability, loss, damage, claim, expense, cost,
fine, fee, penalty, obligation or injury including, without limitation, those
resulting from any and all actions, suits, proceedings, demands, assessments,
judgments, awards or arbitrations, together with costs and expenses including
the fees of attorneys and other legal costs and expenses relating thereto,
(including without limitation costs of investigation, negotiation, prosecution,
defense or settlement).
7.3 INDEMNIFICATION BY COMPANY. Company will defend, indemnify and hold
harmless Purchaser, any parent, subsidiary or affiliate of Purchaser and any
director, officer,
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manager, employee, shareholder, member, interest holder, partner, agent or
attorney of Purchaser or of any parent, subsidiary or affiliate of Purchaser
from and against and in respect of any Loss which arises out of or results from
the following:
(a) the failure of Company to satisfy any liability or perform
any obligation or covenant required to be performed by it hereunder; or
(b) any breach by Company of any of its representations and
warranties in this Agreement.
7.4 PROCEDURE/ARBITRATION. In seeking indemnification for Losses
pursuant to this Section 7, Purchaser shall exercise its remedies with respect
to the Shares in the following manner:
(a) Purchaser shall notify Company in writing of a claim for
indemnification for any Loss (each a "CLAIM"). Company then has thirty (30) days
following the receipt of such notice to notify Purchaser in writing if it
desires to dispute such Claim. In the event Company fails to notify Purchaser in
writing within such thirty (30) day period of its desire to dispute the Claim or
notifies Purchaser of its consent to the Claim, Purchaser shall collect the
entire Claim from the Shares. The Company shall only have liability hereunder
for Claims made by Purchaser during the Indemnity Period. Purchaser may make a
Claim during the Indemnity Period even if the exact amount of the Claim or
Purchaser's liability for the Claim has not yet been resolved. In the event
Company notifies Purchaser that it desires to dispute the Claim, the Claim shall
be settled by mandatory and binding arbitration pursuant to the arbitration
provisions set forth below:
(i) Any dispute between the parties related to this
Section 7 shall be settled by arbitration in Santa Xxxxx County, California and,
except as herein specifically stated, in accordance with the commercial
arbitration rules of the American Arbitration Association ("AAA RULES") then in
effect. However, in all events, the provisions of this Agreement shall govern
over any conflicting rules which may now or hereafter be contained in the AAA
Rules. Any judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction over the subject matter thereof. The arbitrator
shall have the authority to grant any equitable and legal remedies that would be
available in any judicial proceeding instituted to resolve a dispute between the
parties.
(ii) The parties to the dispute will each pay fifty
percent (50%) of the initial compensation to be paid to the arbitrator in any
such arbitration and fifty percent (50%) of the costs of transcripts and other
normal and regular expenses of the arbitration proceedings; provided, however,
that the prevailing party in any arbitration will be entitled to an award of
attorneys' fees and costs, and all costs of arbitration, including those
provided for above, will be paid by the losing party, and the arbitrator will be
authorized to make such determinations.
(iii) Upon the conclusion of any arbitration
proceedings hereunder, the arbitrator will render findings of fact and
conclusions of law and a written opinion setting forth the basis and reasons for
any decision reached and will deliver such documents to the parties to
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the dispute, along with a signed copy of the award. The arbitrator chosen in
accordance with these provisions will not have the power to alter, amend or
otherwise affect the terms of the arbitration provisions set forth herein or any
other provision of this Agreement or any Company Ancillary Document. Except as
specifically otherwise provided in this Agreement, arbitration will be the sole
and exclusive remedy of the parties for any dispute concerning indemnification.
The final decision of the arbitrator will be furnished to the parties in writing
and will constitute a conclusive determination of the issue in question, binding
upon such parties.
(iv) If arbitration is brought, the prevailing party
will be entitled to recover reasonable fees and costs of attorneys, including
without limitation costs, expenses and fees on any appeal, to be fixed in amount
by the court or the arbitrator(s).
(b) The valuation of Shares that will be used to satisfy the
Claim shall be determined based on the fair market value of the common stock of
Purchaser on either (i) the date Company's thirty (30) day period to dispute
such Claim expires, if such Claim is not disputed; or (ii) the date such Claim
is settled by arbitration (in accordance with the procedures set forth in
Section 7.4(a) above), if the matter goes to arbitration. If the parties can not
agree on the fair market value, then the fair market value of the common stock
of Purchaser will be determined by an arbitrator in accordance with Section
7.4(a) above as follows: the arbitrator will make an independent valuation of
both the common stock and the preferred stock of Purchaser and the valuation of
the common stock will be used to satisfy the Claim; provided, however, that for
purposes of this Section 7.4 only, the valuation assigned to the common stock
will be no less than eighty percent (80%) of the valuation assigned to the
preferred stock.
(c) Except for intentional fraud or willful misconduct under
the Agreement, the indemnification provided for in this Section 7.4 shall be
limited to the lesser of (i) all Shares and (ii) $1,000,000; provided, however,
that such $1,000,000 limit shall not apply to liabilities known to Company prior
to the Effective Date and not set forth herein or in the Schedule of Exceptions
attached hereto.
(d) The indemnification provided for in this Section 7.4 shall
not apply unless the aggregate Claim for which Purchaser seeks indemnification
exceeds $75,000, in which event indemnification shall apply to the entire Claim.
(e) The indemnification provided for in this Section 7.4 shall
be limited to actual out-of-pocket losses incurred by Purchaser including, but
not limited to, salaries and overhead expenses (but only actual direct and
variable overhead expenses) for employees assigned to develop a remedy to a
Claim.
(g) If a Claim by a third party is made against Purchaser and
if Purchaser intends to seek indemnification with respect thereto, Company may
participate, at its own cost and expense, in the settlement or defense of any
Claim for which indemnification is sought; provided, however, that such
settlement or defense shall be controlled by Purchaser; provided, however, that
Purchaser will not settle any dispute in excess of $250,000 without the approval
of Company, such approval not to be unreasonably withheld.
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8. MISCELLANEOUS.
8.1 EXPENSES. Each of the parties hereto will bear its own costs and
expenses (including without limitation attorneys' fees) in connection with the
negotiation and consummation of this Agreement, the Company Ancillary Documents,
and all transactions contemplated hereby and thereby.
8.2 NOTICES. Any notice required or permitted to be given under this
Agreement will be in writing and will be effective upon: (i) receipt if hand
delivered; (ii) the next business day after dispatch by fax transmission or
nationally recognized overnight express courier and addressed as set forth
herein; or (iii) three days after dispatch by certified or registered United
States mail, postage prepaid, addressed as set forth herein.
(a) If to Company:
GlobalCast Communications, Inc.
000 Xxxxxxxx Xxxxx #000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Chief Financial Officer
Fax No.: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
(b) If to Purchaser:
Talarian Corporation
000 Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, President
Fax No.: (000) 000-0000
With a copy to:
Fenwick & West, LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx, Esq.
Fax No.: (000) 000-0000
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8.3 ENTIRE AGREEMENT; CAPTIONS. This Agreement, the Schedules and
Exhibits hereto (which are incorporated herein by reference) and the Company
Ancillary Documents together constitute the entire agreement and understanding
between the parties and there are no other agreements or commitments with
respect to the transactions contemplated herein or therein. This Agreement and
the Company Ancillary Documents supersede any prior offer, agreement or
understanding between the parties with respect to the transactions contemplated
hereby and thereby. The captions in this Agreement are for convenience only and
will not be considered a part of or affect the construction or interpretation of
any provision of this Agreement.
8.4 AMENDMENT; WAIVER. Any term or provision of this Agreement may be
amended only by a writing signed by Company and Purchaser. The observance of any
term or provision of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a writing
signed by the party to be bound by such waiver. No waiver by a party of any
breach of this Agreement will be deemed to constitute a waiver of any other
breach or any succeeding breach.
8.5 NO THIRD PARTY BENEFICIARIES. Nothing expressed or implied in this
Agreement is intended, or will be construed, to confer upon or to give any
person, firm or corporation, other than the parties hereto, any rights or
remedies under or by reason of this Agreement.
8.6 EXECUTION IN COUNTERPARTS. For the convenience of the parties, this
Agreement may be executed in one or more counterparts, each of which will be
deemed an original but all of which together will constitute one and the same
instrument.
8.7 ASSIGNMENT. Notwithstanding any other term or provision of this
Agreement to the contrary, this Agreement may not be assigned by any party
hereto without the prior written consent of the other party, except that any
party may assign this Agreement (and the Company Ancillary Documents) by
operation of law or in connection with any merger, consolidation or sale of all
or substantially all of its assets or in connection with any similar transaction
without such consent.
8.8 BENEFIT AND BURDEN. This Agreement will be binding upon, will inure
to the benefit of, and be enforceable by and against, the parties hereto and
their respective successors and permitted assigns.
8.9 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement will be
governed by and construed in accordance with the internal laws of the State of
California (excluding application of any conflict of law doctrines that would
make applicable the law of any other state or jurisdiction) and, where
appropriate, applicable federal law. The parties hereto submit to the exclusive
jurisdiction and venue of any state or federal court located in Santa Xxxxx
County, California, for purposes of any action arising out of or relating to
this Agreement and agree that service of process in any such action may be made
in the manner provided herein for delivery of notices.
8.10 SEVERABILITY. If any provision of this Agreement is for any reason
and to any extent deemed to be invalid or unenforceable, then such provision
will not be voided but rather
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will be enforced to the maximum extent then permissible under then applicable
law and so as to reasonably effect the intent of the parties hereto, and the
remainder of this Agreement will remain in full force and effect.
8.11 POST-CLOSING COOPERATION. Company agrees that, if requested by
Purchaser, it will cooperate with Purchaser in enforcing the terms of any
agreements between Company and any third party involving the Purchased Assets,
including, without limitation, the Lucent License and any terms relating to
confidentiality and the protection of intellectual property rights.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Asset Purchase Agreement by their duly authorized representatives as of the
Effective Date.
"PURCHASER" "COMPANY"
TALARIAN CORPORATION GLOBALCAST COMMUNICATIONS, INC.
By: _____________________________ By: ___________________________________
Xxxx X. Xxxxxx, President and Xxxxxxx X. Xxxxx, Chief Financial
Chief Executive Officer Officer
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