EXHIBIT 2.2
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into as of
the 24th day of November, 2004, by and between FORGENT NETWORKS, INC., a
corporation organized and existing under the laws of the State of Delaware,
U.S.A. (the "Seller"), and TANDBERG TELECOM AS, a corporation organized and
existing under the laws of the Kingdom of Norway (the "Buyer").
RECITALS
WHEREAS, the Seller owns certain "Patents", "Software", and "Related
Assets" (as these terms are hereinafter defined) related to video conferencing,
scheduling and media management; and
WHEREAS, the Buyer desires to purchase such Patents, Software and
Related Assets from Seller, and the Seller desires to sell and transfer to the
Buyer such Patents, Software and Related Assets, all as more fully set forth
below; and
WHEREAS, the Buyer desires to have certain assurances and a covenant of
non-assertion from Seller with regard to certain "Other Patents" (as hereinafter
defined) owned or controlled by Seller.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual agreements and covenants contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Buyer and the Seller hereby agree as follows:
ARTICLE 1 - PURCHASE AND SALE OF ASSETS
1.1 Defined Terms. Capitalized terms used herein have the
meanings set forth in Article 12.1.
1.2 Purchased Assets. Subject to the terms and conditions of
this Agreement, and in reliance upon the representations, warranties, covenants
and agreements made in this Agreement by the Seller and the Buyer, the Buyer
shall purchase, accept and acquire from the Seller, and the Seller shall sell,
transfer, convey, assign and deliver to the Buyer all of Seller's right, title
and interest in and to: (i) the Patents, Software and Related Assets, all
goodwill associated directly with the Patents, Software and Related Assets and
all rights thereunder, (ii) all supporting documentation for the Patents and
Software, including relevant portions of laboratory notebooks, invention
disclosure forms, patent prosecution files, and correspondence, opinions of
counsel, and similar documents ("Documentation"), (iii) remedies against
infringements thereof, and (iv) rights to protection of interests therein under
the laws of all jurisdictions (collectively, the "Purchased Assets").
1.3 Closing. The closing (the "Closing") of the purchase and sale of
the Purchased Assets shall take place at 10 a.m., local time, on the Closing
Date, at the offices of Klett, Rooney, Xxxxxx and Xxxxxxxxx, Xxx Xxxxxxxxxx
Xxxxxxxx, Xxxxx 0000, 0000 Xxxx Xxxxxx Xxxxxxxxxx, XX 00000. The "Closing Date"
means the date on which the Closing occurs as may be mutually agreed to by the
Buyer and the Seller.
ARTICLE 2 - PURCHASE PRICE
In consideration of (i) the transfer, sale and assignment of the
Purchased Assets and (ii) the covenant of non-assertion contained in Article
6.9, Buyer agrees to pay Seller the sum of THREE MILLION SEVEN HUNDRED AND FIFTY
THOUSAND U.S. DOLLARS ($3,750,000.00) (the "Purchase Price"). The Purchase Price
shall be paid to Seller at Closing by wire transfer in immediately available
funds to an account designated by Seller in writing at or prior to the Closing.
ARTICLE 3 - NON-ASSUMPTION OF LIABILITIES
Except as set forth on Schedule 3, the Buyer shall not be responsible
for, assume, pay, perform, discharge, or accept any liabilities, debts,
contractual obligations or other obligations of the Seller of any kind
whatsoever, whether actual, contingent, accrued, known or unknown, including,
without limitation, any relating to interest and termination penalties on
indebtedness, taxes, breach or negligent performance of any contract,
liabilities resulting from breach of contract, illegal activity, unlawful
business practice, infringement of intellectual property rights, any
liabilities, obligations or commitments by Seller relating to or arising out of
the ownership of the Purchased Assets prior to the Closing, or the transfer of
the Purchased Assets or any other liability or obligation of the Seller
whatsoever. All such non-assumed liabilities, debts and obligations shall remain
the responsibility of the Seller.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF THE SELLER
In order to induce the Buyer to enter into this Agreement, the Seller
makes the following representations and warranties to the Buyer, each of which
shall be deemed to be independently made and relied upon by the Buyer,
regardless of any investigation made by, or information known to, the Buyer:
4.1 Ownership, Organization and Qualification. The Seller is a
corporation duly incorporated and validly existing and in good standing under
the laws of the State of Delaware, has not filed articles of dissolution and has
a perpetual period of existence. The Seller has all requisite corporate power
and authority to own, operate and lease its properties and to conduct its
business as now being conducted.
4.2 Authorization. The Seller has obtained the approval from its
Board of Directors and, if necessary, its shareholders to enter into this
Agreement and has all necessary power and authority to enter into this
Agreement. Seller shall have all necessary power and authority to
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perform the transactions contemplated hereby in accordance with the terms and
conditions hereof.
4.3 Enforceability. This Agreement and all other agreements of the
Seller contemplated hereby are or, upon the execution and delivery thereof will
be, the valid and binding obligations of the Seller, enforceable against it in
accordance with their terms, subject to any limitation of enforceability that
may be imposed by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting creditor's rights and
remedies generally and by the application by a court of equitable jurisdiction
(whether such enforceability is considered a proceeding in equity or in law).
4.4 Conflicting Obligations. The execution and delivery of this
Agreement does not, and the consummation of the sale and purchase of the
Purchased Assets contemplated hereby will not: (a) conflict with or result in a
material violation of any provisions of the articles or certificate of
incorporation or bylaws of the Seller, as amended and in effect on and as of the
date hereof and on and as of the Closing Date; (b) conflict with or result in a
material violation of any provisions of, or result in the maturation or
acceleration of, any obligations under any contract, agreement, instrument,
document, lease, license, permit, indenture, or obligation, or any law, statute,
ordinance, rule, regulation, code, guideline, order, arbitration award, judgment
or decree, to which the Seller is subject or to which the Seller is a party; or
(c) conflict with, result in a material breach of, constitute a default under,
result in the acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under any agreement,
contract, lease, license, instrument or other arrangement to which the Seller is
a party or by which it is bound or to which any of the Purchased Assets are
subject (or result in the imposition of any Lien upon any of the Purchased
Assets).
4.5 Title to Assets; Sufficiency. Except as set forth in Schedule
4.5, the Seller has good and marketable title to all of the Purchased Assets,
free and clear of any Lien, encumbrance, claim or restriction on transfer and
the Patent Assignment and the Software and Related Asset Assignment contemplated
by this Agreement are sufficient to transfer good and marketable title to the
Purchased Assets to Buyer, free and clear of all Liens. The Purchased Assets
include but are not limited to all of the Patents owned or controlled by Seller
that are set forth in Article 4.7.1, the Software, the Related Assets and the
Documentation.
4.6 Third Party Consents. Except as set forth on Schedule 4.6, no
material third party consents, approvals or authorizations are necessary for the
execution and consummation of the transactions contemplated hereby, nor are any
such consents, approvals or authorizations required in order for any of the
Purchased Assets to be assigned to the Buyer. Seller has full power and
authority to uphold and enforce the covenant of non-assertion set forth in
Article 6.9 hereof without the consent of any other party.
4.7 Purchased Assets.
4.7.1 Schedule 4.7.1 identifies each patent that has been
issued to or is owned by the Seller which is to be transferred to Buyer and
identifies each pending patent application or
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application for registration which the Seller has made, the rights to which are
to be transferred to Buyer. Seller has made available to the Buyer correct and
complete copies of all of the Patents and any licenses, agreements, options or
other rights related to the Patents.
4.7.2 The Seller has taken all actions that are necessary or
reasonably appropriate to maintain and to protect each of the Patents,
including, but not limited to payment of any and all issuance fees, maintenance
fees and annuities.
4.7.3 With respect to each of the Patents and the Software:
(i) they are not subject to any outstanding injunction, judgment, order, decree,
ruling, or charge; (ii) no action, suit, opposition or reexamination proceeding,
hearing, investigation, charge, complaint, claim, or demand is pending or, to
the Seller's Knowledge, is threatened which challenges the legality, validity,
enforceability, use, or ownership of the Patent and the Software; (iii) no
person has notified the Seller of any claim concerning any alleged interference,
infringement, misappropriation, reexamination, opposition or other conflict of
any of the Patents and the Software with the intellectual property of any third
party.
4.7.4 The Seller has no Knowledge of any state of facts or
contemplated event that may give rise to any claim, action, suit, proceeding,
complaint, investigation or inspection which could have a materially adversely
effect on the ownership, validity or use of the Purchased Assets.
4.7.5 The Seller has no Knowledge of any products, inventions
or procedures of competitors which infringe or misappropriate any Patent and has
not given any notice of infringement, sent any demand to "cease and desist", or
offered to license any Patent to any third party based on any claim in the
Patents except as set forth in Schedule 4.7.5.
4.7.6 The Seller has no Knowledge of any competitive products
or software which infringe or misappropriate any intellectual property embodied
in the Software and has not given any notice of infringement, sent any demand to
"cease and desist", or offered to license the Software to any third party based
on any claim related to the Software except as set forth in Schedule 4.7.6.
4.7.7 The Patents and the Other Patents together encompass all
patents and patent applications in and related to the Field which are owned or
controlled by Seller and its Affiliates.
4.8 No Sale, Transfer or License. Except for licenses listed in
Schedule 4.8, (a) the Seller has not sold, leased, transferred, or assigned any
interest in any of the Purchased Assets; (b) the Seller has not imposed or
permitted any third party to impose any Lien upon any of the Purchased Assets;
(c) the Seller has not granted any option, license or sublicense of any rights
under or with respect to any of the Patents or Software; and (d) the Seller has
not committed to any of the foregoing.
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4.9 Authority to Grant Covenant. Seller has full power and authority
to grant the covenant of non-assertion contained in Article 6.9 hereof and no
other person or entity has any right to bring a claim of infringement pursuant
to one or more of the Other Patents.
4.10 Brokerage. The Seller has neither incurred nor made commitments
for, any brokerage, finders or similar fee in connection with the transaction
contemplated by this Agreement.
4.11 Bankruptcy. The Seller has not filed a petition for relief under
the United States Bankruptcy Code or under any state insolvency statute nor has
it consulted with any counsel or advisor in anticipation of or to consider the
filing of any petition in bankruptcy, moratorium, receivership or any similar
state or federal law.
4.12 No Bulk Sales Laws. No "bulk sales" laws are applicable to the
acquisition of the Purchased Assets or any transactions contemplated by this
Agreement.
4.13 Warranty. EXCEPT AS SPECIFICALLY AND EXPLICITLY PROVIDED HEREIN
(INCLUDING, WITHOUT LIMITATION, IN ARTICLES 4.5, 4.6, 4.7 AND 4.8 ABOVE), THE
PURCHASED ASSETS ARE BEING SOLD "AS IS" WITHOUT ADDITIONAL WARRANTY.
4.14 Representations and Warranties True and Correct. The
representations and warranties contained herein, and all other documents,
certifications, materials and statements or information given to the Buyer by or
on behalf of the Seller or disclosed in this Agreement, do not include any
untrue statement of a material fact or omit to state a material fact required to
be stated herein or therein in order to make the statements herein or therein,
in light of the circumstances under which they are made, not misleading.
ARTICLE 5 - REPRESENTATIONS OF THE BUYER
In order to induce the Seller to enter into this Agreement, the Buyer
makes the following representations and warranties to the Seller, each of which
shall be deemed to be independently made and relied upon by the Seller,
regardless of any investigation made by, or information known to, the Seller.
5.1 Ownership, Organization and Qualification. The Buyer is a
corporation duly incorporated and validly existing under the laws of the Kingdom
of Norway, has not filed articles of dissolution and has a perpetual period of
existence. Buyer has all requisite corporate power and authority to own, operate
and lease its properties and conduct its business as now being conducted.
5.2 Authorization. The Buyer has all necessary power and authority
to enter into and perform the transactions contemplated hereby in accordance
with the terms and conditions hereof.
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5.3 Enforceability. This Agreement and all other agreements of the
Buyer contemplated hereby are or, upon the execution thereof, will be the valid
and binding obligations of the Buyer enforceable against it in accordance with
their terms, subject to any limitation of enforceability that may be imposed by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting creditor's rights and remedies
generally and by the application by a court of equitable jurisdiction (whether
such enforceability is considered a proceeding in equity or in law).
5.4 Conflicting Obligations. The execution and delivery of this
Agreement do not, and the consummation of the sale and purchase of the Purchased
Assets contemplated hereby will not: (a) conflict with or result in a material
violation of any provisions of the certificate of formation of the Buyer; (b)
conflict with or result in a material violation of any provisions of, or result
in the maturation or acceleration of, any obligations under any contract,
agreement, instrument, document, lease, license, permit, indenture, or
obligation, or any law, statute, ordinance, rule, regulation, code, guideline,
order, arbitration award, judgment or decree, to which the Buyer is subject to
or which the Buyer is a party; or (c) conflict with, result in a material breach
of, constitute a default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument or other
arrangement to which the Buyer is a party or by which it is bound or to which
any of its assets is subject.
5.5 Brokerage. The Buyer has neither incurred, nor made commitment
for, any brokerage, finders or similar fee in connection with the transactions
contemplated by this Agreement.
5.6 Present Knowledge. As of the Closing Date, Buyer has no
Knowledge of any actions by, or products or software held by, Seller, which
infringe or misappropriate any intellectual property embodied in the Purchased
Assets and has no present intention of making any action, claim, suit,
proceeding, complaint, investigation or inspection regarding such against or
with respect to Seller.
ARTICLE 6 - COVENANTS OF THE SELLER
The Seller covenants and agrees with the Buyer as follows:
6.1 Maintenance of Property. From the date hereof and until the
Closing Date, the Seller, upon notice to Buyer, shall take all actions necessary
or reasonably appropriate to maintain its right, title and interest in and to
the Purchased Assets. Furthermore, to the extent any of the Purchased Assets are
registered or held in the name of an Affiliate of Seller or other person, Seller
shall take such actions as are necessary to ensure such Purchased Assets are
effectively assigned to Buyer on the Closing Date. The Seller shall pay all
costs related to the same. Commencing immediately, Seller and its agents shall
refrain from any activity to sell, license, sublicense, assign, hypothecate,
alienate, encumber, pledge or otherwise transfer any of Seller's interest in or
to any portion of the Patents except to finalize an agreement to grant a
non-
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transferable, limited license to Xxxxxx Network Systems as more fully set forth
in the Forgent Patent License referred to in Article 6.5.4.
6.2 Access. Between the date of this Agreement and the Closing Date,
Seller will, and will instruct its agents and representatives to, give Buyer and
its employees, agents or representatives access to the Documentation and permit
Buyer to make reasonable inspection and copies thereof. Further, Seller shall
instruct its prosecuting patent counsel or patent agent in each country where
the Patents are issued or pending to reasonably cooperate with Buyer and its
employees, agents or representatives to enable and assist such persons in
understanding the prosecution history of the Patents and to facilitate the
continuing prosecution of the any pending Patents following Closing. All such
access and inspections will be conducted during Seller's (or its patent
counsel's or patent agent's, as applicable) normal business hours and in a
manner that does not unreasonably interfere with the conduct of Seller's (or its
patent counsel's or patent agent's) business.
6.3 Compliance with Laws. From the date hereof and until the Closing
Date, the Seller shall comply with all applicable laws, statutes, ordinances,
rules, regulations, guidelines, orders, arbitration awards, judgments and
decrees applicable to, or binding upon, the Seller if the breach of any of the
foregoing could reasonably be expected to have a materially adverse effect on
the Purchased Assets.
6.4 Supplemental Disclosure. Promptly after it becomes aware of such
information and in any event not later than the Closing Date, the Seller shall
inform the Buyer in writing of all material information, events or actions
which, if this Agreement were signed on the Closing Date, would be required to
be disclosed on the Schedules in order to make the Seller's representations and
warranties contained herein true and not misleading. The delivery thereof by the
Seller shall not absolve the Seller from liability for breach of any
representation or warranty which was untrue when made.
6.5 Documents of Transfer. On the Closing Date, the Seller shall
duly execute and deliver to the Buyer:
6.5.1 the Xxxx of Sale as described in Exhibit 6.5.1;
6.5.2 the Patent Assignment as set forth in Exhibit 6.5.2;
6.5.3 the Software and Related Assets Assignment as set forth
in Exhibit 6.5.3;
6.5.4 The Forgent License Agreement in the form attached
hereto as Exhibit 6.5.4; and
6.5.5 All such other assignments, if any, that shall be
required to transfer title to the Buyer pursuant to the terms as set forth
herein.
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6.6 Other Deliveries. On the Closing Date, the Seller shall deliver
to the Buyer the following:
6.6.1 A certificate from an officer of Seller whose
responsibilities include maintenance of the Seller's patent portfolio
substantially in the form of Schedule 6.6.1.
6.6.2 A certified resolution of the Board of Directors of
Seller approving the transaction contemplated by this Agreement;
6.6.3 A certificate from the Corporate Secretary of Seller
certifying that any necessary approvals from the shareholders of the Seller have
been obtained;
6.6.4 A certificate from an officer of Seller as described in
Articles 8.1 and 8.2 below;
6.6.5 The Software, the Related Assets and all Documentation
(in each instance through transmission via computer to the extent possible); and
6.6.6 All other documents reasonably requested by counsel for
the Buyer to consummate the transactions herein contemplated.
6.7 Further Assurances. The Seller, upon request of the Buyer, shall
execute, acknowledge and deliver such other instruments as reasonably may be
requested to more effectively transfer and vest in the Buyer the Purchased
Assets pursuant to the terms of this Agreement or to otherwise carry out the
terms and conditions of this Agreement.
6.8 Confidentiality. Information embodied in the Purchased Assets
and the Documentation constitute confidential information that Seller shall hold
confidential for a period of five (5) years from the date of this Agreement
except (a) information that is or becomes publicly available at the time of
disclosure (through no act of the Seller or any of its Affiliates in violation
of this Article 6.8); (b) information that is disclosed to Seller or any of its
Affiliates by a third party that to the knowledge of Seller or its Affiliates,
after due inquiry, did not disclose in violation of a duty of confidentiality;
(c) disclosures that are required to be made by Seller under any applicable laws
or regulations; or (d) information that is independently developed, after
Closing, as demonstrated by Seller's written records.
6.9 Covenant not to Assert. The Parties having encountered a good
faith disagreement concerning the validity of certain of the Other Patents,
therefore, in lieu of a granting a license to Buyer, Seller agrees and covenants
that it will not assert against Buyer or its Affiliates or solely in connection
with their relationship with Buyer; their respective, contract manufacturers,
distributors, resellers or customers (the "Covered Parties"), the violation or
infringement of any Relevant Rights related to (i) the Patents listed on
Schedule 4.7.1 or (ii) the Other Patents listed on Schedule 6.9. In the event
Seller seeks to sell, assign, transfer or license any of its Relevant Rights to
a third party after the Closing, pursuant to which transaction such third party
would acquire a right to claim that any of the Covered Parties is infringing
such
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Relevant Rights, Seller shall (i) notify Buyer of such proposed transaction and
(ii) shall obtain the written undertaking to abide by the terms of this
covenant.
6.9.1. Schedule 6.9.1 contains a release of all claims by
Seller against the Covered Parties, through and including the Closing Date.
ARTICLE 7 - COVENANTS OF THE BUYER
7.1 The Buyer covenants and agrees with the Seller that on the
Closing Date, the Buyer shall deliver to Seller:
7.1.1 The Purchase Price in accordance with the terms set
forth in Article 2 above;
7.1.2 A certificate from an officer of Buyer as described in
Article 9.1 and 9.2 below.
7.2 Subject to Article 14.12, Buyer shall hold confidential until
the first to occur of the Closing Date, or a date five (5) years from the date
of the execution of this Agreement if no closing has occurred, any information
regarding any of the Purchased Assets except (a) information that is or becomes
publicly available at the time of disclosure (through no act of the Buyer or any
of its Affiliates in violation of this Article 7.2); (b) information that is
disclosed to Buyer or any of its Affiliates by a third party that to the
knowledge of Buyer or its Affiliates, after due inquiry, did not disclose in
violation of a duty of confidentiality; (c) disclosures that are required to be
made by Buyer under any applicable laws or regulations; or (d) information that
is independently developed, as demonstrated by Buyer's written records.
ARTICLE 8 - CONDITIONS OF THE BUYER'S OBLIGATION TO CLOSE
The obligation of the Buyer to consummate the transactions contemplated
by this Agreement shall be subject to the satisfaction and fulfillment, prior to
and on the Closing Date, of the following express conditions precedent:
8.1 Representation and Warranties. The representations and
warranties in this Agreement made by the Seller shall be true and correct in all
material respects as of and at the Closing Date with the same force and effect
as though said representations and warranties had been again made on the Closing
Date, and the Buyer shall have been furnished a certificate signed by the
President of the Seller to that effect.
8.2 Performance of Covenants and Obligations. The Seller shall have
performed and complied in all material respects with all of its covenants and
obligations under this Agreement which are to be performed or complied with by
it prior to or on the Closing Date, and the Buyer shall have been furnished a
certificate signed by an officer of the Seller to that effect.
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8.3 Proceedings and Instruments Satisfactory. All proceedings,
corporate or otherwise, to be taken in connection with the transactions
contemplated by this Agreement, and all documents incident thereto, shall be
reasonably satisfactory in form and substance to the Buyer. The Seller shall
have made available to the Buyer, either directly or through its patent counsel,
for examination the originals or true and correct copies of all documents which
the Buyer reasonably may request in connection with the transactions
contemplated by this Agreement.
8.4 Adverse Change. From and after the date of this Agreement and
until the Closing Date, the Buyer (in its reasonable discretion) shall have
determined that there has been no material adverse change in the Purchased
Assets from that disclosed to the Buyer in or under this Agreement.
8.5 No Litigation. No investigation, suit, action or other
proceeding shall be threatened or pending before any court or governmental
agency in which it is sought to restrain, prohibit or obtain damages or other
relief in connection with this Agreement or the consummation of the transactions
contemplated hereby.
8.6 Consents, Approvals, Certifications, Licenses and Permits. All
necessary consents, approvals, certifications, licenses and permits with respect
to the transaction contemplated hereby shall have been received by the Buyer on
or before the Closing Date.
8.7 Assignments. Seller shall have prepared and delivered to Buyer
all documents necessary or appropriate to transfer and assign to Buyer title to
the Purchased Assets, including any foreign counterparts to the Patents.
ARTICLE 9 - CONDITIONS TO THE SELLER'S OBLIGATION TO CLOSE
The obligation of the Seller to consummate the transactions contemplated
by this Agreement shall be subject to the satisfaction and fulfillment, prior to
and on the Closing Date, of the following express conditions precedent:
9.1 Representations and Warranties. The representations and
warranties in this Agreement made by the Buyer shall be true and correct in all
material respects as of and at the Closing Date with the same force and effect
as though said representations and warranties had been again made on the Closing
Date, and the Seller shall have been furnished a certificate signed by the
President of the Buyer to that effect.
9.2 Performance of Covenants and Obligations. The Buyer shall have
performed and complied with all of its covenants and obligations under this
Agreement which are to be performed or complied with by it prior to or on the
Closing Date, and the Seller shall have been furnished a certificate signed by
the President of the Buyer to that effect.
9.3 No Litigation. No investigation, suit, action or other
proceeding shall be threatened or pending before any court or governmental
agency in which it is sought to restrain, prohibit or
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obtain damages or other relief in connection with this Agreement or the
consummation of the transactions contemplated hereby.
ARTICLE 10 - INDEMNIFICATION BY SELLER
10.1 Indemnification. Notwithstanding the Closing, and regardless of
any investigation made by or on behalf of the Buyer or any information known to
the Buyer; the Seller (the "Seller" or "Indemnifying Party", for purposes of
Articles 10.2 and 10.3) subject to the terms and conditions of this Article 10,
indemnifies and saves the Buyer, its shareholders, officers, directors and/or
employees (collectively, the "Buyer" or "Indemnified Party" for purposes of
Articles 10.2 and 10.3 as used in this Article 10) harmless from and against any
and all losses, claims, damages, actions, liabilities, costs, expenses or
deficiencies including, but not limited to, reasonable attorneys' fees and other
costs and expenses reasonably incident to proceedings or investigations or the
defense or settlement of any claim or claims, incurred by or asserted against
the Buyer or the Purchased Assets due to or resulting from any of the following:
(a) the inaccuracy or breach of any representation or warranty of the Seller
given in or pursuant to this Agreement; (b) any breach or default in the
performance by the Seller of any of its covenants, obligations or agreements in
or pursuant to this Agreement; (c) any liability or obligation of the Seller not
expressly assumed by the Buyer pursuant to this Agreement; (d) the ownership or
use of the Purchased Assets at any time prior to the Closing, or any incident,
occurrence, condition or claim existing, arising or accruing prior to the
Closing and relating to the ownership or use by Seller or its Affiliates, or any
other person, of the Purchased Assets; or (e) breach of Seller's Confidentiality
obligations in sections 6.8 and 13.2. The foregoing are collectively referred to
as "Indemnifiable Damages."
10.2 Procedure For Indemnification with Respect to Non-Third Party
Claims. In the event that the Indemnified Party asserts a claim (a "Notice of
Claim") for Indemnifiable Damages (but excluding a claim for Indemnifiable
Damages resulting from the assertion of liability by third parties), it shall
give written notice to the Indemnifying Party specifying the nature and amount
of the Indemnifiable Damages. If the Indemnifying Party, within 30 business days
after receipt of such Notice of Claim by the Indemnified Party, has not given
written notice (a "Notice of Objection") to the Indemnified Party announcing its
intent to contest such assertion by the Indemnified Party, such assertion shall
be deemed accepted and the amount of Indemnifiable Damages stated in the Notice
of Claim shall be deemed a valid claim therefor.
10.3 Procedure For Indemnification with Respect to Third Party
Claims. If any third party notifies the Indemnified Party with respect to any
matter that may give rise to a claim for indemnification against the
Indemnifying Party under this Article 10, then the Indemnified Party will notify
the Indemnifying Party thereof promptly and in any event within 30 days after
receiving any written notice from a third party; provided that no delay on the
part of the Indemnified Party in notifying the Indemnifying Party will relieve
the Indemnifying Party from any obligation hereunder unless, and then solely to
the extent that, the Indemnifying Party is prejudiced thereby. Once the
Indemnified Party has given notice of the matter to the Indemnifying Party, the
Indemnified Party may defend against the matter in any manner it reasonably may
deem appropriate. In the event the Indemnifying Party notifies the Indemnified
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Party within 30 days after the date the Indemnified Party has given notice of
the matter that the Indemnifying Party is assuming the defense of such matter
(a) the Indemnifying Party will defend the Indemnified Party against the matter
with counsel of its choice reasonably satisfactory to the Indemnified Party, (b)
the Indemnified Party may retain separate counsel at its sole cost and expense
(except that the Indemnifying Party will be responsible for the fees and
expenses of such separate co-counsel to the extent the Indemnified Party
concludes in good faith that the counsel the Indemnifying Party has selected has
a conflict of interest), (c) the Indemnified Party will not consent to the entry
of a judgment or enter into any settlement with respect to the matter, or take
any measure that imposes any burden or encumbrance upon the conduct of the
Indemnified Party or its operations, without the written consent of the
Indemnifying Party (not to be withheld or delayed unreasonably), (d) the
Indemnifying Party will not consent to the entry of a judgment with respect to
the matter or enter into any settlement that does not include a provision
whereby the plaintiff or claimant in the matter releases the Indemnified Party
from all liability with respect thereto, without the written consent of the
Indemnified Party (not to be withheld or delayed unreasonably), and (e) the
Indemnified Party shall have the right to attend, at its own expense, any
meetings relating to, and to receive upon request copies of all correspondence,
reports or other documents submitted or received by or on behalf of the
Indemnifying Party in connection with, the defense of such matter.
10.4 Survival of Representations and Indemnification. The Seller's
obligation to pay Indemnifiable Damages and to comply with this Article 10 shall
survive the Closing of this transaction for a period of five (5) years.
10.5 Limitation on Amount. Seller will have no liability under
Article 10.1 until the total of all Indemnifiable Damages exceeds FIFTY THOUSAND
DOLLARS ($50,000.00). In no event will Seller be liable for the Indemnifiable
Damages of any nature on any one or more claims under Article 10.1, which in the
aggregate, exceed TWO MILLION FIVE HUNDRED THOUSAND DOLLARS ($2,500,000.00),
except that Indemnified Damages arising directly or indirectly from a breach by
Seller of the representations made in Articles 4.4, 4.5, 4.6, 4.7(.1-.7), 4.8
and 4.9 shall not be subject to such limitation.
10.6 Other Indemnification Provisions. The foregoing indemnification
provisions are in addition to, and not in derogation of, any statutory,
equitable, or common law remedy the Buyer may have with respect to the Seller,
or the transactions contemplated by this Agreement; provided, however, that the
amount of any monetary changes shall be limited by Article 10.5.
10.7 Buyer's Indemnification of Seller. Notwithstanding the Closing,
and regardless of any investigation made by or on behalf of the Seller or any
information known to the Seller; the Buyer, subject to the terms and conditions
of this Article 10.7, indemnifies and saves the Seller, its shareholders,
officers, directors and/or employees harmless from and against any and all
losses, claims, damages, actions, liabilities, costs, expenses or deficiencies
including, but not limited to, reasonable attorneys' fees and other costs and
expenses reasonably incident to proceedings or investigations or the defense or
settlement of any claim or claims, incurred by or asserted against the Seller
due to or resulting from any of the following: (a) the inaccuracy or breach of
any representation or warranty of the Buyer given in or pursuant to this
Agreement; (b)
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any breach or default in the performance by the Buyer of any of its covenants,
obligations or agreements in or pursuant to this Agreement. The foregoing are
collectively referred to as "Seller's Indemnifiable Damages."
10.7.1 Limitation on Amount. Buyer will have no liability under
Article 10.7 until the total of all Seller's Indemnifiable Damages exceeds FIFTY
THOUSAND DOLLARS ($50,000.00). In no event will Buyer be liable for the Seller's
Indemnifiable Damages of any nature on any one or more claims under Article
10.7, which in the aggregate, exceed TWO MILLION FIVE HUNDRED THOUSAND DOLLARS
($2,500,000.00).
10.7.2 Procedure for Indemnification. The procedures set forth
in Articles 10.2 and 10.3 shall be operative, provided that for these purposes
the term "Indemnifiable Damages" shall be replaced with the term "Seller's
Indemnifiable Damages".
ARTICLE 11 - TERMINATION
11.1 Rights to Terminate. This Agreement may be terminated at any
time prior to the Closing only as follows:
11.1.1 by mutual written consent of the Seller and the Buyer;
11.1.2 by the Seller by giving written notice to the Buyer if
the Buyer is in breach of any representation, warranty or covenant under this
Agreement and fails to cure such breach, if curable, within ten (10) days after
receipt of notice from the Seller requesting that such breach be cured (and the
Seller is not then in breach of any representation, warranty or covenant);
11.1.3 by the Buyer by giving written notice to the Seller if
the Seller is in breach of any representation, warranty or covenant under this
Agreement and fails to cure such breach, if curable, within ten (10) days after
receipt of notice from the Buyer requesting that such breach be cured (and the
Buyer is not then in breach of any representation, warranty or covenant); or
11.1.4 by the Buyer by giving written notice to the Seller if
the Closing shall not have occurred by November 30, 2004, unless the failure of
the Closing to have occurred by such date is due to a material breach on the
part of the Buyer which Buyer has failed to cure within ten (10) days after
receipt of notice from the Seller requesting such breach be cured; provided
that, if such cure period extends to or beyond November 30, 2004, the
requirement to close by such date shall be extended for so long as required (up
to 10 days) to permit the Closing to occur after Buyer has had an opportunity to
cure.
11.1.5 Each party's right to termination pursuant to this
Article 11 is in addition to any of the rights it may have hereunder or
otherwise.
11.2 Effects of Termination. Notwithstanding any other provision of
this Agreement, no termination of this Agreement shall release any party of any
Liability arising hereunder for any pre-termination breach hereof or intentional
misrepresentations made herein.
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ARTICLE 12 - DEFINITIONS
12.1 Certain Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified in this Article 12.1 unless the context
otherwise requires.
12.1.1 "Affiliate" shall mean any entity that is now or
hereafter becomes Controlled by, is in Control of, or is under common Control
with a Party. "Control" shall mean a fifty percent (50%) or more ownership of
issued and outstanding voting securities, or fifty percent (50%) or more of the
voting rights in a partnership or limited liability company, directly or
indirectly.
12.1.2 "Agreement" means this Asset Purchase Agreement,
together with all Exhibits and Schedules hereto, as amended, restated,
supplemented or otherwise modified from time to time in accordance with the
terms hereof.
12.1.3 "Xxxx of Sale" means that Xxxx of Sale Agreement, dated
as of the Closing Date, between the Seller and the Buyer and as set forth in
Exhibit 6.5.1.
12.1.4 "Closing" has the meaning set forth in Article 1.3.
12.1.5 "Closing Date" has the meaning set forth in Article 1.3.
12.1.6 "Documentation" has the meaning set forth in
Article 1.2.
12.1.7 "Field" shall mean the design, development, manufacture
and use of video conferencing equipment, scheduling software and tools, and
media management procedures and technology.
12.1.8 "Governmental Authority" means the government of the
United States of America and any other country, and any state, province,
municipality or other governmental unit, or any agency, board, bureau,
instrumentality, department or commission (including any court or other
tribunal) of any of the foregoing.
12.1.9 "Indemnifiable Damages" has the meaning set forth in
Article 10.1.
12.1.10 "Knowledge" means, with respect to any party, the actual
knowledge of such party, its executive officers or its agents after due inquiry;
provided, however, that if such party fails to make such inquiry, it shall
include the constructive knowledge of such facts as would have been learned had
such due inquiry been made.
12.1.11 "Liability" means any liability or obligation (whether
known or unknown, whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated or unliquidated,
and whether due or to become due).
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12.1.12 "Lien" means any pledge, lien, encumbrance, charge or
other security interest of any kind.
12.1.13 "Notice of Claim" has the meaning set forth in
Article 10.2.
12.1.14 "Notice of Objection" has the meaning set forth in
Article 10.2.
12.1.15 "Other Patents" means the issued patents and
applications for patents set forth on Schedule 6.9 hereto, and any foreign
counterparts, reissues, extensions, substitutions, confirmations, registrations,
revalidations, additions, or continuations, continuations-in-part, and divisions
thereof in existence as of the Closing Date.
12.1.16 "Patent Assignment" means that Patent Assignment, dated
as of the Closing Date, between the Seller and the Buyer and as set forth in
Exhibit 6.5.2.
12.1.17 "Patents" means the issued patents and applications for
patents set forth on Schedule 4.7.1 hereto, and any foreign counterparts,
reissues, extensions, substitutions, confirmations, registrations,
revalidations, additions, or continuations, continuations-in-part, and divisions
thereof in existence as of the Closing Date.
12.1.18 "Purchase Price" has the meaning set forth in Article 2.
12.1.19 "Purchased Assets" has the meaning set forth in
Article 1.2.
12.1.20 "Related Assets shall include all assets of Seller in
the Field, such as Copyrights and trademarks, and other intellectual property in
addition to the Patents, the Software, and the Documentation, but excluding the
Other Patents.
12.1.21 "Relevant Rights" shall mean all rights existing under
or hereafter accruing under any of the Patents or Other Patents, specifically
including but not limited to the right to claim infringement thereof.
12.1.22 "Software" shall mean Forgent Alliance Software Suite
(inclusive of the Alliance Scheduler, Alliance Media Manager, GSS and all
related modules) and including both Source Code and Object Code together with
all documentation related thereto in the control of Forgent and/or its
Affiliates.
12.1.23 "Software and Related Assets Assignment" shall mean that
Software and Related Assets Assignment, dated as of the Closing Date, between
Seller and Buyer and as set forth in Exhibit 6.5.3.
ARTICLE 13 - ADDITIONAL AGREEMENTS
13.1 In recognition of Seller's desire to service certain existing
customers who utilize the Software, the parties have agreed that Buyer shall
provide a thirty percent (30%) discount from
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the retail list price for its TMS Software to those customers set forth on
Schedule 13.1. This listing of customers includes not less than twelve (12) of
Seller's customers and shall not include any customer with a prior relationship
to Buyer as a customer or which is already a user of TMS as determined by Buyer
in its reasonable discretion.
13.2 The Parties have agreed to keep confidential the details of this
Agreement and the Transactions envisioned thereby. At Closing, or as promptly
thereafter or reasonably practicable, the parties have agreed to issue a joint
press release substantially in the form of Schedule 13.2 hereof.
ARTICLE 14 - MISCELLANEOUS
14.1 Survival of Representations and Warranties. All of the
representations and warranties and disclaimers thereof of the parties contained
in this Agreement shall survive the Closing hereunder for a period of two (2)
years. Covenants shall continue indefinitely unless limited by their own terms.
14.2 Benefit and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their heirs, successors, assignees,
and beneficiaries in interest; provided, however, that this Agreement may not be
assigned by the either party without the prior written consent of the other
party, other than in connection with the sale of all or substantially all of the
assets of such party.
14.3 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Delaware (regardless of
such State's conflict of laws principles), and without reference to any rules of
construction regarding the party responsible for the drafting hereof.
14.4 Expenses. Except as otherwise herein provided, all expenses
incurred in connection with this Agreement or the transactions herein provided
for shall be paid by the party incurring such expenses and costs.
14.5 Submission to Jurisdiction. Each of the Buyer and the Seller
submits to the exclusive jurisdiction of any state or federal court sitting in
Delaware in any action or proceeding arising out of or relating to this
Agreement and all agreements and transactions contemplated hereby, and agrees
that all claims in respect of the action or proceeding may be heard and
determined in any such court. Each of the Buyer and the Seller also covenants
and agrees not to bring any action or proceeding arising out of or relating to
this Agreement or any agreement or transaction contemplated hereby in any other
court. Each of the Buyer and the Seller waives any defense of inconvenient forum
to the maintenance of any action or proceeding so brought and waives any bond,
surety, or other security that might be required of any other party with respect
thereto. Each party agrees that a final judgment in any action or proceeding so
brought shall be conclusive and may be enforced by suit on the judgment or in
any other manner provided by law or in equity.
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14.6 Notices. Any and all notices, demands, and communications
provided for herein or made hereunder shall be given in writing and shall be
deemed given to a party at the earlier of (i) when hand delivered to such party,
(ii) when facsimile transmitted to such party to the facsimile number indicated
for such party below (or to such other facsimile number for a party as such
party may have substituted by notice pursuant to this Article 14.6), or (iii)
when received if sent by express courier, confirmed by receipt, and addressed to
such party at the address designated below for such party (or to such other
address for such party as such party may have substituted by notice pursuant to
this Article 14.6):
If to the Buyer: Tandberg Telecom AS
Xxxxxx Pedersens Xxx 00
0000 Xxxxxxx
XXXXXX
Fax 000-00-00-000-000
Attention: President
With a copy to: Xxxxx Xxxxxx Xxxxxx & Xxxxxxxxx, P.C.
000 Xxxxx Xxxxxx, Xxx. 000
Xxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxxx X. Xxxx, Esq.
If to the Seller: Forgent Networks, Inc.
000 Xxxx Xxxxx Xxxx
Xxxxxx, Xxxxx 00000
Fax: 000-000-0000
Attention: President
With a copy to: Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
14.7 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument, provided that all
such counterparts, in the aggregate, shall contain the signatures of all parties
hereto.
14.8 Headings. All Article headings herein are inserted for
convenience only and shall not modify or affect the construction or
interpretation of any provision of this Agreement.
14.9 Amendment, Modification and Waiver. This Agreement may not be
modified, amended or supplemented except by mutual written agreement of all the
parties hereto. Any party may waive in writing any term or condition contained
in this Agreement and intended to be
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for its benefit; provided, however, that no waiver by any party, whether by
conduct or otherwise, in any one or more instances, shall be deemed or construed
as a further or continuing waiver of any such term or condition. Each amendment,
modification, supplement or waiver shall be in writing signed by the party or
the parties to be charged.
14.10 Entire Agreement. This Agreement and the Exhibits and Schedules
attached hereto represent the full and complete agreement of the parties with
respect to the subject matter hereof and supersede and replace any prior
understandings and agreements among the parties with respect to the subject
matter hereof and no provision or document of any kind shall be included in or
form a part of such agreement unless signed and delivered to the other party by
the parties to be charged.
14.11 Third-Party Beneficiaries. No third parties are intended to
benefit from this Agreement, and no third-party beneficiary rights shall be
implied from anything contained in this Agreement.
14.12 Publicity. Subject to the provisions of Article 13.2, the Buyer
and the Seller shall cooperate in making appropriate additional public
announcements concerning the terms of this Agreement and the transactions
contemplated hereby and shall not do so independently, except that each Party
shall unilaterally have the authority to make such statements upon advanced
notice to the other Party to the extent it reasonably decides such disclosure is
required in order to comply with the laws or stock exchange rules of any
country.
14.13 Intepretation. Each of the Parties have been represented by
counsel and has had the opportunity to negotiate, review, revise and comment on
the terms set forth herein. As a result, the Parties acknowledge and agree that
in interpreting the provisions of this contract no weight shall be given to
which Party drafted or revised any provision of this Agreement, each provision
considered to have been the joint work product of both Parties.
14.14 Disclosure Schedules. The disclosure of information on any
disclosure schedule shall be deemed to constitute disclosure of such information
on any other schedules hereto to which such information may relate and shall
qualify all of the representations and warranties contained herein that are
relevant thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
[Signature Page to Follow]
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FORGENT NETWORKS, INC.
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
By: Xxxxxxx X. Xxxxxx
Title: President
TANDBERG TELECOM A/S
/s/ Xxxxxx Xxxxxx
----------------------------------
By: Xxxxxx Xxxxxx
Title: CEO
Schedules and Exhibits
The following disclosure schedules and exhibits have been omitted pursuant to
Item 601(b)(2) of Regulation S-K. The registrant will furnish supplementally a
copy of any of the following to the Securities and Exchange Commission upon
request.
Schedules-
Schedule 3 Non-Assumption of Liabilities
Schedule 4.5 Title to Assets; Sufficiency
Schedule 4.6 Consents
Schedule 4.7.1 Patents to be Assigned
Schedule 4.7.5 Infringement Notices or Claims and Offers to License Patents
Schedule 4.7.6 Infringement Notices or Claims and Offers to License Software
Schedule 4.8 No Sale, Transfer or License
Schedule 6.6.1 Officer Certificate re: Patent Fees
Schedule 6.9 Other Patents
Schedule 13.1 Customers Entitled to Discount
Schedule 13.2 Press Releases
Exhibits-
Exhibit 6.5.1 Xxxx of Sale
Exhibit 6.5.2 Patent Assignment
Exhibit 6.5.3 Software and Related Assets Assignment
Exhibit 6.5.4 License Agreement
