ASSET PURCHASE AGREEMENT
BETWEEN
METAWAVE COMMUNICATIONS CORPORATION
and
VIASYSTEMS, INC.
____________________
Dated as of April 1, 2001
____________________
ARTICLE I
Purchase of Manufacturing Assets
1.1 Purchase and Sale of Manufacturing Assets. 1
1.2 Excluded Assets. 2
1.3 Nonassignable Contracts or Permits. 3
ARTICLE II
Assumption of Liabilities
2.1 Assumed Liabilities. 3
ARTICLE III
Purchase Price
3.1 Purchase Price. 4
3.2 Allocation of Purchase Price. 4
3.3 Physical Inventory. 4
3.4 Put Right in Respect of Inventory. 5
ARTICLE IV
Closing
4.1 Closing Date. 5
4.2 Proceedings at Closing 5
ARTICLE V
Representations and Warranties of Seller
5.1 Organization and Power. 6
5.2 Authorization. 6
5.3 No Conflicts. 6
5.4 Consents and Approvals 6
5.5 No Third-Party Options 7
5.6 Legal Compliance. 7
5.7 Litigation; Orders. 7
5.8 Permits. 7
5.9 Financial Statements. 7
5.10 Inventory. 8
5.11 Absence of Changes. 8
5.12 Title to Manufacturing Assets. 8
5.13 Sufficiency and Condition of Manufacturing Assets. 8
5.14 Intellectual Property. 8
5.15 Real Property. 9
5.16 Environmental Matters. 9
5.17 Benefit Plans. 10
5.18 Labor and Employment Matters. 10
5.19 Disclosure. 10
5.20 No Other Representations. 11
ARTICLE VI
Representations and Warranties of Purchaser
6.1 Organization and Power. 11
6.2 Authorization. 11
6.3 No Conflicts. 11
6.4 Consents and Approvals 12
6.5 Financial Condition 12
6.6 Disclosure 12
ARTICLE VII
Pre-Closing Covenants
7.1 Access. 12
7.2 Conduct of the Manufacturing Operations. 12
7.3 Notifications. 13
7.4 Governmental Filings. 13
7.5 Injunctions. 13
7.6 Satisfaction of Conditions. 13
7.7 Confidentiality. 14
ARTICLE VIII
Conditions to Closing
8.1 Conditions Precedent to Obligations of Purchaser and
Seller. 14
8.2 Additional Conditions Precedent to Obligations of
Purchaser. 14
8.3 Additional Conditions Precedent to Obligations of
Seller. 14
ARTICLE IX
Closing Deliveries
9.1 Seller's Deliveries. 15
9.2 Purchaser's Deliveries. 15
ARTICLE X
Post-Closing Covenants
10.1 Discharge of Business Obligations 16
10.2 Payments Received 16
10.3 Maintenance of Books and Records 16
10.4 Transfer Taxes 17
10.5 Employee and Employee Benefits Plans 17
10.6 Repurchase Rights 18
10.7 Sale of Taiwan Manufacturing Facilities 18
10.8 Release of Liens 19
ARTICLE XI
Survival and Indemnification
11.1 Survival of Representations and Warranties. 19
11.2 Limitations of Liability. 19
11.3 Indemnification. 20
11.4 Defense of Claims. 20
11.5 Exclusive Remedy. 22
ARTICLE XII
Termination
12.1 Termination. 22
12.2 Effect of Termination. 22
ARTICLE XIII
Miscellaneous Provisions
13.1 Amendments 22
13.2 Assignment 23
13.3 Binding Effect 23
13.4 Construction 23
13.5 Counterparts 23
13.6 Entire Agreement 23
13.7 Expenses 23
13.8 Finder's Fee, etc. 24
13.9 Further Assurances. 24
13.10 Governing Law 24
13.11 Headings 24
13.12 Jurisdiction 24
13.13 Notices 24
13.14 Passage of Title; Risk of Loss. 25
13.15 Press Releases 25
13.16 Severability 26
13.17 Third-Party Beneficiaries 26
13.18 Waiver 26
EXHIBITS AND SCHEDULES
Exhibit A Manufacturing Agreement
Exhibit B Form of Promissory Note
Exhibit C Sublease
Exhibit D-1 Transition Services Agreement
Exhibit D-2 Transition Services Agreement
Schedule 1.1(a) Tangible Personal Property
Schedule 1.1(b) Inventories
Schedule 1.1(c) Contracts
Schedule 1.1(d) Permits
Schedule 2.1 Assumed Liabilities
Schedule 5.3 No Conflicts
Schedule 5.4 Consents and Approvals
Schedule 5.7 Litigation; Orders
Schedule 5.9 Financial Statements
Schedule 5.10 Inventory
Schedule 5.11 Absence of Changes
Schedule 5.12 Title to Manufacturing Assets
Schedule 5.14 Intellectual Property
Schedule 5.15 Real Property Leases
Schedule 5.16 Environmental Matters
Schedule 5.17 Benefit Plans
Schedule 5.18 Labor and Employment Matters
Schedule 6.4 Consent and Approvals
Schedule 7.2 Conduct of Manufacturing Operations
Schedule 10.5(e) Stock Options
GLOSSARY OF DEFINED TERMS
"Accountants" Section 3.3
"affiliate" Section 13.4
"Agreed Allocation" Section 3.2
"Agreement" preamble
"Asset Value" Section 3.3
"Assumed Liabilities" Section 2.1
"Benefit Plan" Section 5.17
"Cessation of Business" Section 10.6
"Closing" Section 4.1
"Closing Date" Section 4.1
"Closing Statement" Section 3.3
"COBRA" Section 10.5(b)
"Code" Section 3.2
"Contracts" Section 1.1(c)
"Default" Section 5.3
"Direct Claim" Section 11.4(d)
"Employee" Section 5.17
"Environmental Laws" Section 5.16
"Environmental Permits" Section 5.16
"ERISA" Section 5.17
"Excess Inventory" Section 3.4(a)
"Excess Inventory Determination Date" Section 3.4(a)
"Excluded Assets" Section 1.2
"Facility" recitals
"Financial Statements" Section 5.9
"Former Employee" Section 5.17
"GAAP" Section 5.9
"Governmental Entity" Section 5.3
"Historical Statements of Assets" Section 5.9
"Indemnifiable Losses" Section 11.2(a)
"Indemnifying Party" Section 11.2(a)
"Indemnitee" Section 11.2(a)
"Indemnity Payment" Section 11.2(a)
"Intellectual Property" Section 5.14
"Inventories" Section 1.1(b)
"Inventory Purchase Price" Section 3.1
"Law" Section 5.3
"Liens" Section 5.12
"Manufacturing Agreement" recitals
"Manufacturing Assets" Section 1.1
"Manufacturing Cost Statements" Section 5.9
"Manufacturing Operations" recitals
"Metawave Taiwan" Section 10.7
"Note" Section 3.1
"Order" Section 5.3
"P&L Statements" Section 5.9
"Permits" Section 1.1(d)
"Permitted Liens" Section 5.12
"person" Section 13.4
"Purchase Price" Section 3.1
"Purchaser" preamble
"Purchaser Documents" Section 6.2
"Purchaser's Notice" Section 10.6
"Real Property" Section 5.15(a)
"Real Property Leases" Section 5.15(a)
"Seller" preamble
"Seller Documents" Section 5.2
"Seller's Notice" Section 10.6
"Software" Section 1.1(c)
"Statement of Assets" Section 5.9
"Statement of Assets Date" Section 5.9
"Taiwan Manufacturing Assets" Section 10.7
"Taiwan Permits" Section 10.7
"Taiwan Purchase Agreement" Section 10.7
"Tangible Personal Property" Section 1.1(a)
"Third Party Claim" Section 11.2(a)
"TPP Purchase Price" Section 3.1
"Transfer Documents" Section 9.1(a)
"Unadjusted Purchase Price" Section 3.1
"Viasystems Taiwan" Section 10.7
"WARN Act" Section 10.5(b)
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made as
of April 1, 2001, between Metawave Communications Corporation, a
Delaware corporation ("Seller"), and Viasystems, Inc., a Delaware
corporation ("Purchaser").
WHEREAS, Seller currently conducts manufacturing operations
("Manufacturing Operations") to manufacture smart antennas for
the wireless communications industry designed and marketed by
Seller at its facility located in Redmond, Washington (the
"Facility");
WHEREAS, on the terms and subject to the conditions set
forth herein, Seller desires to sell, transfer, and assign to
Purchaser, and Purchaser desires to acquire and purchase from
Seller, all of the Manufacturing Assets;
WHEREAS, on the terms and subject to the conditions set
forth herein, Seller desires to assign to Purchaser, and
Purchaser desires to assume, the Assumed Liabilities; and
WHEREAS, as a condition precedent to the consummation of the
transactions contemplated by this Agreement, each of Purchaser
and Seller desire to execute and deliver a Manufacturing
Agreement in substantially the form of Exhibit A ("Manufacturing
Agreement").
NOW, THEREFORE, in consideration of the foregoing recitals
and the representations, warranties, covenants, and agreements
herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
Purchase of Manufacturing Assets
1.1 Purchase and Sale of Manufacturing Assets. On the
terms and subject to the conditions set forth herein, at the
Closing, Seller will sell, transfer, convey, assign, and deliver
to Purchaser, and Purchaser will purchase and accept, all right,
title, and interest of Seller in and to the rights, assets, and
properties of the Manufacturing Operations specified in this
Section 1.1 (collectively, the "Manufacturing Assets"):
(a) Tangible Personal Property. All machinery and
equipment, tools, artwork, test equipment, spare and
maintenance parts, furniture, fixtures, jigs, dies, office
equipment, vehicles, and all other tangible personal
property of the Manufacturing Operations owned by Seller and
located at the Facility (subject to any exceptions listed on
Schedule 1.1(a)) as of the Closing, and all other tangible
personal property owned by Seller as of the Closing listed
on Schedule 1.1(a) (collectively, the "Tangible Personal
Property");
(b) Inventories, Stores, and Supplies. All raw
materials, components, packaging materials, stores and
supplies, and samples (collectively, "Inventories") located
at the Facility (subject to any exceptions listed on
Schedule 1.1(b)) and all other Inventories listed on
Schedule 1.1(b);
(c) Contract Rights. Subject to Section 1.3, all
rights and incidents of interest of Seller as of the Closing
in and to all supply agreements, commitments, orders,
leases, software licenses (the "Software"), and other
contracts and legally binding contractual rights and
obligations that are necessary to operate the Manufacturing
Operations, in each case as listed on Schedule 1.1(c)
(collectively, "Contracts");
(d) Governmental Licenses, Permits, and
Approvals. Subject to Section 1.3 and except for Seller's
license to do business from the city of Redmond, Washington,
all rights and incidents of interest in and to all licenses,
permits, franchises, authorizations, orders, registrations,
certificates, variances, approvals, and similar rights
issued to Seller by any Governmental Entity that are
necessary to operate the Manufacturing Operations, as listed
on Schedule 1.1(d) (collectively, "Permits"); and
(e) Books and Records.
(i) All books, records, reports, documents, and
files of Seller relating exclusively or principally to
the Manufacturing Operations, in original or copy form,
including purchase and sales records, accounting and
financial data, property records, manufacturing
records, product engineering, and drawings that are
necessary to operate the Manufacturing Operations
(provided, however, that extracts pertaining only to
the Manufacturing Operations will be furnished to
Purchaser where such records also reflect other aspects
of Seller's businesses); and
(ii) All records of Seller relating to the
employment of all former Employees of Seller who have
accepted employment with Purchaser.
1.2 Excluded Assets. Notwithstanding any other provision
of this Agreement to the contrary, the following rights,
properties, and assets (collectively, the "Excluded Assets") will
not be included in the Manufacturing Assets:
(a) Cash. All cash, bank accounts, marketable
securities, and other cash equivalents of Seller, wherever
located;
(b) Receivables. All accounts receivables or notes
receivable for services provided or products manufactured
and sold by Seller in connection with the operation of the
Manufacturing Operations prior to the Closing Date;
(c) Ordinary Course Dispositions. All tangible and
intangible personal property of Seller disposed of or
consumed in the ordinary course of business consistent with
the past practice of Seller between the date of this
Agreement and the Closing Date and as permitted hereunder;
(d) Terminated Contracts. All Contracts that have
terminated or expired prior to the Closing Date in the
ordinary course of business consistent with the past
practice of Seller and as permitted hereunder;
(e) Corporate Governance Documents. Seller's
corporate seal, minute books, charter documents, corporate
stock record books, and such other books and records as
pertain to the organization, existence, or share
capitalization of Seller, and duplicate copies of such
records as are necessary to enable Seller to file its tax
returns and reports as well as all other records or
materials relating to Seller generally and not involving or
relating to the Manufacturing Assets or the operation of the
Manufacturing Operations;
(f) Insurance Contracts. Contracts of insurance, and
all insurance proceeds or claims made by Seller, including
those relating to property or equipment repaired, replaced,
or restored by Seller, prior to the Closing Date;
(g) Tax Refunds. Seller's rights to any and all tax
refunds relating to the operation of the Manufacturing
Operations prior to the Closing Date;
(h) Claims. All of Seller's rights, claims, or causes
of action against third parties relating to the
Manufacturing Assets or the Manufacturing Operations arising
prior to the Closing Date;
(i) This Agreement. All of Seller's rights under this
Agreement; and
(j) Other Assets. All other assets, properties,
interests, and rights of Seller not specifically identified
in Section 1.1.
1.3 Nonassignable Contracts or Permits.
(a) Nonassignability. Without limiting or otherwise
affecting the rights of Purchaser pursuant to Article VIII
or XI, to the extent that any Contract or Permit to be
assigned pursuant to the terms of Section 1.1(c) or 1.1.(d),
as the case may be, is not capable of being assigned without
the consent, approval, or waiver of a third person
(including a Governmental Entity), nothing in this Agreement
will constitute an assignment or require the assignment
thereof except to the extent provided in this Section 1.3.
(b) Seller to Use Commercially Reasonable
Efforts. Notwithstanding any other provision of this
Agreement to the contrary, Seller will not be obligated to
assign to Purchaser any of its rights and obligations in and
to any of the Contracts or Permits referred to in
Section 1.3(a) without first having obtained all consents,
approvals, and waivers necessary for such assignments;
provided, however, that Seller will use its commercially
reasonable efforts to obtain all such consents, approvals,
and waivers prior to and, if the Closing occurs, after the
Closing Date.
(c) If Waivers or Consents Cannot Be Obtained. To the
extent that the consents, approvals, and waivers referred to
in Section 1.3(a) are not obtained by Seller, Seller will
use its commercially reasonable efforts to (i) provide to
Purchaser the financial and business benefits of any
Contract or Permit referred to in Section 1.3(a) to the
extent relating to the Manufacturing Operations and
(ii) enforce, at the request of Purchaser, for the account
of Purchaser, any rights of Seller arising from or relating
to any such Contract or Permit (including the right to elect
to terminate in accordance with the terms thereof upon the
advice of Purchaser). After the Closing, Seller shall not
terminate, modify, or amend any Contract or Permit referred
to in Section 1.3(a) without Purchaser's prior written
consent (which consent shall not be unreasonably withheld).
ARTICLE II
Assumption of Liabilities
2.1 Assumed Liabilities. As of the Closing, Purchaser will
assume and thereafter in due course pay and fully satisfy,
subject to Section 1.3, as and when the same shall become due and
payable, all obligations of Seller arising under the executory
portion (as of the Closing Date) of all Contracts listed on
Schedule 1.1.(c); provided, however, that Purchaser does not
hereby assume any liability or obligation for any breach or
failure to perform or any alleged breach or alleged failure to
perform by Seller under such Contracts prior to the Closing
(collectively, the "Assumed Liabilities").
ARTICLE III
Purchase Price
3.1 Purchase Price. At the Closing, in addition to
assuming the Assumed Liabilities, as consideration for the
Manufacturing Assets and the covenants of Seller included herein,
Purchaser will pay to Seller an aggregate amount equal to the sum
of (i) [*], which amount represents the sum of the estimated net
book value of the Tangible Personal Property as of the Closing
Date (the "TPP Purchase Price"), and (ii) [*], and (iii) [*],
which amount represents the estimated net book value of the
Inventories as of the Closing Date (the "Inventory Purchase
Price" and, together with the TPP Purchase Price and the [*], the
"Unadjusted Purchase Price" and, as adjusted pursuant to
Sections 3.3 and 3.4, the "Purchase Price"). The TPP Purchase
Price, [*], and [*] of the Inventory Purchase Price shall be paid
by check or wire transfer of immediately available funds to such
account as shall have been designated by Seller to Purchaser
prior to the Closing. The balance of the Inventory Purchase
Price (i.e., [*]) shall be paid in the form of a promissory note
in substantially the form of Exhibit B (the "Note"), subject to
any adjustments required by Section 3.3 or 3.4.
3.2 Allocation of Purchase Price. Purchaser and Seller
shall negotiate in good faith with the goal of reaching an
agreement in respect of the allocation of the Purchase Price
among the Manufacturing Assets. In the event an agreement in
respect of the allocation of the Purchaser Price among the
Manufacturing Assets is reached by Purchaser and Seller ("Agreed
Allocation"), then Purchaser and Seller shall file all tax
returns, including any information returns pursuant to
Section 1060 of the Internal Revenue Code of 1986, as amended
(the "Code"), and the regulations thereunder on a basis that is
consistent with the Agreed Allocation. If any tax authority
challenges the Agreed Allocation, the party receiving notice of
such challenge shall give the other prompt written notice thereof
and the parties shall cooperate in order to preserve the
effectiveness of the Agreed Allocation.
3.3 Physical Inventory. Purchaser will conduct a physical
inventory of the Inventories and the Tangible Personal Property
as of the Closing Date within 30 days after the Closing Date. As
soon as practicable, but in no event more than 30 days after the
Closing Date, Purchaser will deliver to Seller a closing
statement (the "Closing Statement") reflecting the Inventories
and Tangible Personal Property as established pursuant to such
physical inventory and valued in accordance with GAAP. Within
30 days after delivery of the Closing Statement, Seller will
either accept the Closing Statement as final or will submit its
written objections, in reasonable detail, to such Closing
Statement. After delivery of objections to the Closing
Statement, the parties hereto will attempt in good faith to
expeditiously resolve such objections, in which case the Closing
Statement, with any such agreed adjustments, will be deemed
final. If the parties hereto are unable to resolve the
objections within 30 days after the delivery of the objections,
such objections will be submitted to a mutually acceptable
internationally recognized firm of certified public accountants
which has not performed any auditing or consulting services for
either Purchaser or Seller in the previous 12 months (the
"Accountants") for resolution as promptly as practicable, in
which case the Closing Statement, with any adjustments determined
by such firm of certified public accountants, shall be final and
binding on the parties. The total value of the Inventories and
Tangible Personal Property as set forth in the final Closing
Statement is referred to as the "Asset Value." If the Asset
Value exceeds [*], Purchaser shall pay such difference to Seller
as an adjustment to the Unadjusted Purchase Price by increasing
the principal amount of the Note. If the Asset Value is less
than [*], Seller shall pay such difference to Purchaser as an
adjustment to the Unadjusted Purchase Price by reducing the
principal amount of the Note and, if the amount of such
adjustment exceeds the principal amount of the Note, by promptly
making a cash payment to Purchaser in an amount equal to the
amount such adjustment exceeds the principal amount of the Note.
3.4 Put Right in Respect of Inventory.
(a) [*] after the Closing Date ("Excess Inventory
Determination Date"), Purchaser and Seller will make a
determination of all Inventory remaining at the Excess
Inventory Determination Date ("Excess Inventory"). Seller
shall pay to Purchaser an amount equal to the value
attributable to all such Excess Inventory (i.e., the amount
paid for such Excess Inventory by Purchaser) that is not
then subject to a Binding Forecast (as defined in the
Manufacturing Agreement) as an adjustment to the Unadjusted
Purchase Price. Such adjustment to the Unadjusted Purchase
Price shall be accomplished by a reduction in the principal
amount of the Note and, if the amount of such adjustment
exceeds the principal amount of the Note, by promptly making
a cash payment to Purchaser in an amount equal to the amount
such adjustment exceeds the principal amount of the Note.
All Excess Inventory that is not subject to a Binding
Forecast on the Excess Inventory Determination Date shall be
held by Purchaser as consigned goods for the benefit of
Seller. Excess Inventory that is subject to a Binding
Forecast shall continue to be held by Purchaser until the
first anniversary of the Closing Date unless such Excess
Inventory is earlier used by Purchaser.
(b) On the [*] of the Closing Date, Purchaser and
Seller will make a determination of all remaining Excess
Inventory on such date and Seller shall promptly pay to
Purchaser in cash the value attributable to such Excess
Inventory (i.e., the amount paid for such Excess Inventory
by Purchaser) as an adjustment to the Unadjusted Purchase
Price). All Excess Inventory in existence on the [*] of the
Closing Date shall be returned to Seller. Such Excess
Inventory will be physically transferred by Purchaser to a
designated area located at the Facility.
(c) In the event the parties hereto fail to agree on
any such determination of Excess Inventory, such
determination shall be submitted to the Accountants for
determination, which determination shall be final and
binding.
(d) Purchaser shall maintain separate records listing
each item of Excess Inventory returned to Seller under this
Section 3.4.
ARTICLE IV
Closing
4.1 Closing Date. On the terms and subject to the
conditions set forth herein, the closing of the sale and purchase
of the Manufacturing Assets (the "Closing") shall take place at
the offices of Seller, 00000 Xxxxxxx Xxxx, XX, Xxxxxxx,
Xxxxxxxxxx 00000, at 10:00 A.M., local time, on April 1, 2001 or
on the first business day after the date on which all of the
conditions contained in Article VIII have been satisfied or
waived, as applicable, or at such other place or at such other
time or date as may be mutually agreed to in writing by Purchaser
and Seller. The date of the Closing is referred to as the
"Closing Date."
4.2 Proceedings at Closing. All actions to be taken and
all documents to be executed and delivered by Seller in
connection with the consummation of the transactions contemplated
at the Closing shall be reasonably satisfactory in form and
substance to Purchaser and its counsel; and all actions to be
taken and all documents to be executed and delivered by Purchaser
in connection with the consummation of the transactions
contemplated at the Closing shall be reasonably satisfactory in
form and substance to Seller and its counsel. All actions to be
taken and all documents to be executed and delivered by the
parties hereto at the Closing shall be deemed to have been taken
and executed and delivered simultaneously, and no action shall be
deemed taken nor any document executed or delivered until all
have been taken, executed, and delivered.
ARTICLE V
Representations and Warranties of Seller
Seller hereby makes the following representations and
warranties to Purchaser, each of which is true and correct as of
the date hereof and shall be true and correct as of the Closing
Date, and shall be unaffected by any investigation heretofore or
hereafter made by Purchaser.
5.1 Organization and Power. Seller is a corporation duly
organized, validly existing, and in good standing under the Laws
of the State of Delaware. Seller has the requisite corporate
power and authority to own, lease, or otherwise hold the
Manufacturing Assets owned, leased, or otherwise held by it and
to carry on the Manufacturing Operations as currently conducted
by it. Seller is in good standing and duly qualified to conduct
business as a foreign corporation in every state of the United
States in which its ownership or lease of property or conduct of
the Manufacturing Operations makes such qualifications necessary,
except where the failure to be so qualified would not or could
not reasonably be expected to have a material adverse effect on
the Manufacturing Operations.
5.2 Authorization. Seller has the requisite corporate
power to execute and to deliver this Agreement and each other
agreement, certificate, instrument, and document contemplated by
this Agreement to be executed by it in connection with the
consummation of the transactions contemplated hereby and thereby
(all such other agreements, certificates, instruments, and
documents to be executed by it being collectively referred to as
the "Seller Documents") and to perform the transactions
contemplated hereby and thereby to be performed by it. The
execution and delivery by Seller of this Agreement and each
Seller Document and the performance by it of the transactions
contemplated hereby and thereby to be performed by it have been
(or at the time of execution will be) duly authorized by all
necessary corporate action on the part of Seller. This Agreement
has been (and each Seller Document will be) duly executed and
delivered by duly authorized officers of Seller and, assuming the
due execution and delivery of this Agreement and each Seller
Document by the other party or parties hereto or thereto,
constitutes (and, in the case of each Seller Document, will at
the Closing constitute) the valid and binding obligations of
Seller enforceable against Seller in accordance with its terms,
except as may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar Laws affecting the
enforcement of creditors' rights in general and subject to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity).
5.3 No Conflicts. The execution and delivery of this
Agreement does not (and of each Seller Document will not), and
neither the performance by Seller of the transactions
contemplated hereby or thereby to be performed by it, nor the
consummation of the transactions contemplated hereby or thereby,
will (i) conflict with the charter or bylaws (or other
organizational or governance documents) of Seller, (ii) except as
set forth on Schedule 5.3, conflict with, result in any violation
of, constitute a default (with or without notice, lapse of time,
or both ("Default")) under, or give rise to a right of
termination, cancellation, or acceleration of, or any obligation
or to loss of a benefit under, any Contract, (iii) violate,
constitute a Default under, or cause the forfeiture, impairment,
non-renewal, revocation, or suspension of any Permit,
(iv) violate any order, judgment, decree, writ, or injunction
("Order") of any federal, state or local court, tribunal,
arbitrator, or governmental, administrative, or regulatory
agency, authority, or body or any instrumentality or political
subdivision thereof ("Governmental Entity") applicable to Seller,
(v) violate any domestic or foreign law, statute, ordinance,
rule, or regulation ("Law") applicable to Seller, or (vi) result
in the creation of any Lien upon any of the Manufacturing Assets
other than a Permitted Lien, except in the case of clause (vi)
above, where such Lien would not or could not reasonably be
expected to have a material adverse effect on the Manufacturing
Operations.
5.4 Consents and Approvals. Except as set forth on
Schedule 5.4, no consent, approval, waiver, order, or
authorization of, or registration, declaration, or filing with,
or notice to, any third person or Governmental Entity (including
any consent, approval, waiver, or authorization in respect of any
Contract or Permit) is required to be obtained or made by or in
respect of Seller in connection with the execution and delivery
of this Agreement or any Seller Document by Seller, the
performance by Seller of the transactions contemplated hereby or
thereby to be performed by it, or the consummation of the
transactions contemplated hereby or thereby, other than those
already obtained.
5.5 No Third-Party Options. There is no existing agreement
with, option or right of, or commitment to, any person to acquire
any of the Manufacturing Assets or any interest therein, except
for those contracts entered into in the normal course of business
consistent with past practice in respect of the sale of
Inventory.
5.6 Legal Compliance. To Seller's knowledge, Seller has
complied in all material respects with each Law and Order binding
on it or on any of the Manufacturing Assets and is not currently
in violation of any such Law or Order. To Seller's knowledge,
the Manufacturing Operations are not being conducted in material
violation of any Law or Order.
5.7 Litigation; Orders. Except as set forth on
Schedule 5.7, there is no claim or judicial or administrative
action, suit, proceeding, or investigation pending or, to the
best of Seller's knowledge, threatened (i) that questions the
validity of this Agreement or any Seller Document, the
performance by it of the obligations to be performed by it
hereunder or thereunder, or the consummation of the transactions
contemplated hereby or thereby, or (ii) relating to the conduct
of the Manufacturing Operations (as now conducted or as proposed
to be conducted) against or affecting Seller or any of the
Manufacturing Assets. There is no Order of any Governmental
Entity binding on Seller or any of the Manufacturing Assets.
5.8 Permits. Seller owns, holds, possesses, or lawfully
uses in the conduct of the Manufacturing Operations all Permits
that are in any manner necessary for the conduct of the
Manufacturing Operations as currently conducted or for the
ownership and use of the Manufacturing Assets. All such Permits
are set forth on Schedule 1.1(d). Seller is not in Default and
has not received any notice of any claim of Default, in respect
of any such Permits. All such Permits are renewable by their
respective terms in the ordinary course of business without the
need to comply with any special qualification procedures or to
pay any amounts other than routine filing fees. No such Permit
will be adversely affected by the consummation of the
transactions contemplated hereby. No shareholder, director,
officer, employee, or former employee of Seller or any of its
affiliates, or any other person, owns or has any proprietary,
financial, or other interest (direct or indirect) in any Permit
that Seller owns, possesses, or uses in the operation of the
Manufacturing Operations as now or previously conducted or as
proposed to be conducted.
5.9 Financial Statements. Attached as Schedule 5.9 are
true, correct, and complete copies of (i) the unaudited
statements of manufacturing costs of the Manufacturing Operations
for the fiscal year ended December 31, 2000 and for the month
ended February 28, 2001 (collectively, the "Manufacturing Cost
Statements"), (ii) the unaudited statement of assets of the
Manufacturing Operations as of December 31, 2000 (the "Historical
Statement of Assets"), and (iii) the unaudited statement of
assets of the Manufacturing Operations as of February 28, 2001
(the "Statement of Assets"). The date of the Statement of Assets
is referred to as the "Statement of Assets Date." Except as set
forth on Schedule 5.9, the Manufacturing Cost Statements, the
Historical Statement of Assets, and the Statement of Assets
(collectively, the "Financial Statements") have been prepared in
accordance with U.S. generally accepted accounting principles
consistently applied ("GAAP") and fairly present the financial
condition, assets and liabilities, and results of operations of
the Manufacturing Operations as of the dates and for the periods
indicated therein, subject to the explanatory notes set forth in
Schedule 5.9.
5.10 Inventory. The inventory shown on the Statement of
Assets consists of items usable and saleable in the ordinary
course of business and is stated in accordance with the inventory
accounting policies described in Schedule 5.10.
5.11 Absence of Changes. Except as described on
Schedule 5.11, since the Statement of Assets Date, (i) the
Manufacturing Operations have been conducted in the ordinary
course, consistent with past practice, (ii) Seller has not taken
any action that would have constituted a violation of Section 7.2
if Section 7.2 had applied to Seller since the Statement of
Assets Date, and (iii) there has not been any material adverse
change in the Manufacturing Operations or the financial
condition, or results of operations, of the Manufacturing
Operations, nor has there been, to Seller's knowledge and
exclusive of general business or economic conditions, any event
or circumstance that would be reasonably likely to cause any such
change.
5.12 Title to Manufacturing Assets. Except as set forth on
Schedule 5.12, Seller has, and after the Closing, Purchaser will
have, good, valid, and marketable title to the Manufacturing
Assets free and clear of all title defects or objections,
mortgages, liens, claims, charges, pledges, security interests,
or other encumbrances of any nature whatsoever, including
licenses, leases, chattel, or other mortgages, collateral
security arrangements, pledges, title imperfections, defect or
objection liens, conditional and installment sales agreements,
easements, encroachments, or restrictions of any kind and other
title or interest retention arrangements, reservations, or
limitations of any nature (collectively, "Liens"), other than
(i) mechanics', carriers', workmen's, repairmen's, or other like
Liens arising or incurred in the ordinary course of business
consistent with past practice and that will be discharged as of
the Closing Date and (ii) Liens for taxes, assessments, and other
governmental charges that are not due and payable or that may
thereafter be paid without penalty. The items referred to in
clauses (i) and (ii) of the immediately preceding sentence are
referred to as "Permitted Liens."
5.13 Sufficiency and Condition of Manufacturing Assets.
(a) The Manufacturing Assets constitute all of the
rights, assets, and properties of every kind, character, and
description that are used in or necessary to conduct the
Manufacturing Operations as currently conducted.
(b) All of the Manufacturing Assets are in good
operating condition and repair, subject to normal wear and
maintenance, are usable in the regular and ordinary course
of business, and conform in all material respects to all
applicable Laws and Permits relating to their construction,
use, and operation.
(c) No person other than Seller owns any equipment or
other tangible assets or properties located at the Facility
or necessary to the operation of the Manufacturing
Operations, and no affiliate of Seller is engaged in the
conduct of the Manufacturing Operations as currently
conducted or as proposed to be conducted.
5.14 Intellectual Property. The intellectual property
licensed by Seller to Purchaser pursuant to the Manufacturing
Agreement ("Intellectual Property") constitutes all of the
intellectual property rights used by Seller in its conduct of the
Manufacturing Operations as presently conducted. Except as set
forth on Schedule 5.14, Seller has good, marketable, and
exclusive title to, and the valid and enforceable power and
unqualified right to use, the Intellectual Property, free and
clear of all Liens, and to license the same to Purchaser and no
person other than Seller has any right or interest of any kind or
nature in or in respect of the Intellectual Property or any
portion thereof or any rights to use, market, or exploit the
Intellectual Property or any portion thereof. Except as set
forth in Schedule 5.14, there are no pending or, to the best of
Seller's knowledge, threatened, actions of any nature affecting
the Intellectual Property. Schedule 5.14 lists all notices or
claims currently pending or received by Seller that relate in any
manner to the Manufacturing Operations and that claim
infringement of any domestic or foreign letters patent, patent
applications, patent licenses, software licenses, know-how
licenses, trade names, trademark registrations and applications,
service marks, copyrights, copyright registrations or
applications, trade secrets, technical knowledge, know-how, or
other confidential proprietary information. Except as set forth
on Schedule 5.14, there is, to best of Seller's knowledge, no
reasonable basis upon which any claim may be asserted against
Seller for infringement or misappropriation of any domestic or
foreign letters patent, patents, patent applications, patent
licenses, software licenses, know-how licenses, trade names,
trademark registrations and applications, trademarks, service
marks, copyrights, copyright registrations or applications, trade
secrets, technical knowledge, know-how, or other confidential
proprietary information held or owned by another person. All
letters patent, registrations, and certificates issued by any
Governmental Entity relating to any of the Intellectual Property
and all licenses and other Contracts pursuant to which Seller
uses any of the Intellectual Property, are valid and subsisting,
have been properly maintained and neither Seller, nor, to the
best of Seller's knowledge, any other person, is in Default
thereunder.
5.15 Real Property.
(a) Seller does not own the real property upon which
the Facility is located or any other real property necessary
for the conduct of the Manufacturing Operations as currently
conducted and as proposed to be conducted. Schedule 5.15
sets forth a complete list of all real property leased or
subleased by Seller in connection with the operation of the
Manufacturing Operations or otherwise necessary for the
operation of the Manufacturing Operations or the use of the
Facility (the "Real Property"). Seller has delivered to
Purchaser true and correct copies of all leases and
subleases relating to the Real Property ("Real Property
Leases"). Except as set forth on Schedule 5.15, Seller has
a valid leasehold interest in all Real Property, free and
clear of all Liens (other than Permitted Liens).
(b) Schedule 5.15 describes each Real Property Lease
by listing the name of the landlord or sublandlord, a
description of the leased premises, the commencement and
expiration dates of the current term, the security deposited
by Seller with the landlord or sublandlord, if any, the
monthly rental (including base and all additional rents),
and whether Seller may assign the Real Property Lease, or
sublease the underlying Real Property, to Purchaser.
(c) Each Real Property Lease is, and at Closing shall
be, in full force and effect and, except as contemplated
hereby, has not been assigned, modified, supplemented, or
amended (other than as previously provided to Purchaser),
and neither of Seller nor, to Seller's knowledge, the
landlord or sublandlord under any Real Property Lease is in
Default under any Real Property Lease, and no circumstance
or state of facts currently exists that, with the giving of
notice or passage of time, or both, would permit the
landlord or sublandlord under any Real Property Lease to
terminate any Real Property Lease (other than expiration of
the term of any such Real Property Lease).
(d) No covenants, easements, or rights of way impair
in any material respect the uses of the Real Property for
their intended use and for the purposes for which they are
now utilized.
(e) At the Closing, Seller shall sublease the Real
Property to Purchaser (and shall deliver to Purchaser
original copies of all consents required for such
subleases).
5.16 Environmental Matters. Except as disclosed on
Schedule 5.16, (i) Seller possesses all permits, authorizations,
and approvals required by applicable Law relating to the
protection of or the regulation of the human health and safety,
environment or natural resources (collectively, "Environmental
Laws") to operate the Manufacturing Operations as currently
conducted (collectively, "Environmental Permits"), which permits
are valid, in good standing, and can and will be transferred to
Purchaser as of the Closing; (ii) Seller in respect of the
Manufacturing Operations is in material compliance with all
Environmental Laws and Environmental Permits; (iii) there are no
claims, actions, suits, or proceedings pending or, to the best of
Seller's knowledge, threatened against Seller in respect of the
Manufacturing Operations alleging the violation of or non-
compliance with Environmental Laws; (iv) Seller is not aware of
any fact, circumstance, or condition at any of the real property
or arising out of or relating to the Manufacturing Operations
prior to Closing that could reasonably be expected to result in
the owner or operator of the Manufacturing Operations incurring
liabilities under Environmental Laws; and (v) Seller has provided
Purchaser with copies of all environmental, health and safety
assessments, audits, investigations, analyses, and other such
reports relating to the Manufacturing Operations that are in the
possession, custody, or control of Seller.
5.17 Benefit Plans. Seller has no obligation or liability
(contingent or otherwise) arising from or relating to any benefit
plan or arrangement except as listed on Schedule 5.17. "Benefit
Plan" means each employee benefit plan as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), maintained by, or on behalf of or for the
benefit of Seller, or to which Seller contributes, is obligated
to contribute or has contributed within six years of the date
hereof and under which any person presently employed by Seller
primarily in the conduct of the Manufacturing Operations (an
"Employee") or formerly so employed by Seller or any of its
predecessors (a "Former Employee") participates or has accrued
any rights, or under which Seller is liable in respect of an
Employee or Former Employee. The terms "Employee" and "Former
Employee" include, where applicable, the beneficiaries and
dependents of an Employee or Former Employee.
5.18 Labor and Employment Matters.
(a) Except as set forth on Schedule 5.18, no employee
or consultant of Seller involved in the Manufacturing
Operations has executed any employment or similar agreement.
To Seller's knowledge, no officer or key employee, or any
group of key employees of Seller involved in the
Manufacturing Operations, currently intends to terminate
his, her, or their employment with Seller. Except as set
forth in Schedule 5.18, the employment of each officer and
employee of Seller involved in the Manufacturing Operations
is terminable at the will of Seller. Seller does not have
any unfair labor practice charge or complaint pending or, to
Seller's knowledge, threatened against it before the
National Labor Relations Board. To Seller's knowledge, no
officer or consultant of Seller involved in the
Manufacturing Operations is in violation of any term of any
employment, consultant, non-disclosure, non-competition,
confidentiality, or other similar agreement.
(b) Seller is not is a party to any labor or
collective bargaining agreement, and no employees of Seller
are represented by any labor organization. Within the
preceding three years, there has been no representation or
certification proceeding or petition seeking a
representation proceeding, pending or, to the knowledge of
Seller, threatened to be brought or filed with the National
Labor Relations Board or any other labor relations tribunal
or authority. Within the preceding three years, to the
knowledge of Seller, there has been no organizing activity
involving Seller in respect of any group of employees of
Seller involved in the Manufacturing Operations.
5.19 Disclosure. No representation or warranty of Seller
contained in this Agreement, and no statement contained in any of
the Financial Statements, the Seller Documents, or the Schedules
hereto contains or will contain any untrue statement of a
material fact, or omits or will omit to state any material fact
necessary, in light of the circumstances under which it was or
will be made, in order to make the statements herein or therein
not misleading or necessary in order fully and fairly to provide
the information required to be provided in any such document.
Any projections provided by Seller to Purchaser in respect of the
Manufacturing Operations are based upon a variety of assumptions
relating to the Manufacturing Operations that, though considered
to be reasonable by Seller, may not be realized and are subject
to significant uncertainties and contingencies, many of which are
beyond the control of Seller. To the best of Seller's knowledge,
Seller has not failed to disclose to Purchaser any fact that
would reasonably be determined to have a material adverse effect
on the business, financial condition, results of operations, or
prospects of the Manufacturing Operations, or that is otherwise
material to the Manufacturing Operations or the Manufacturing
Assets.
5.20 No Other Representations. Except as specifically set
forth in this Article V, Seller makes no representation or
warranty in respect of the Manufacturing Operations or the
transactions contemplated hereby.
ARTICLE VI
Representations and Warranties of Purchaser
Purchaser hereby makes the following representations and
warranties to Seller, each of which is true and correct as of the
date hereof and shall be true and correct as of the Closing Date.
6.1 Organization and Power. Purchaser is a corporation
duly organized, validly existing, and in good standing under the
Laws of the State of Delaware, and has the requisite corporate
power and authority to own, lease, or otherwise hold the assets
owned, leased, or otherwise held by it and to carry on its
business as currently conducted by it.
6.2 Authorization. Purchaser has the requisite corporate
power to execute and to deliver this Agreement and each other
agreement, certificate, instrument, and document contemplated by
this Agreement to be executed by it in connection with the
consummation of the transactions contemplated hereby and thereby
(all such other agreements, certificates, instruments, and
documents to be executed by it being hereinafter collectively
referred to as, the "Purchaser Documents") and to perform the
transactions contemplated hereby and thereby to be performed by
it. The execution and delivery by Purchaser of this Agreement
and each Purchaser Document and the performance by it of the
transactions contemplated hereby and thereby to be performed by
it have been (or at the time of execution will be) duly
authorized by all necessary corporate action on the part of
Purchaser. This Agreement has been (and each Purchaser Document
will be) duly executed and delivered by duly authorized officers
of Purchaser and, assuming the due execution and delivery of this
Agreement and each Purchaser Document by the other party or
parties hereto or thereto, constitutes (and, in the case of each
Purchaser Document, will at the Closing constitute) the valid and
binding obligations of Purchaser enforceable against Purchaser in
accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other
similar Laws affecting the enforcement of creditors' rights in
general and subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding at
law or in equity).
6.3 No Conflicts. The execution and delivery of this
Agreement does not (and of each Purchaser Document will not), and
neither the performance by Purchaser of the transactions
contemplated hereby or thereby to be performed by it, nor the
consummation of the transactions contemplated hereby or thereby,
will (i) conflict with the charter or bylaws of Purchaser,
(ii) conflict with, result in any violation of, constitute a
Default under, or give rise to a right of termination,
cancellation, or acceleration of, or any obligation or to loss of
a benefit under, any note, bond, mortgage, indenture, license,
agreement, or other document or obligation to which Purchaser is
a party or by which Purchaser's assets or properties are bound,
or (iii) violate any Order of any Governmental Entity or Law
applicable to Purchaser.
6.4 Consents and Approvals. Except as set forth on
Schedule 6.4, no consent, approval, waiver, order, or
authorization of, or registration, declaration, or filing with,
or notice to, any third person or Governmental Entity is required
to be obtained or made by or in respect of Purchaser in
connection with the execution and delivery of this Agreement or
any Purchaser Document by Purchaser, the performance by Purchaser
of the transactions contemplated hereby or thereby to be
performed by it, or the consummation of the transactions
contemplated hereby or thereby.
6.5 Financial Condition. Purchaser has the resources
(financial and otherwise) to operate the Manufacturing Operations
as proposed to be conducted pursuant to the Manufacturing
Agreement.
6.6 Disclosure. No representation or warranty of Purchaser
contained in this Agreement, and no statement contained in any of
the Purchaser Documents contains or will contain any untrue
statement of a material fact, or omits or will omit to state any
material fact necessary, in light of the circumstances under
which it was or will be made, in order to make the statements
herein or therein not misleading or necessary in order fully and
fairly to provide the information required to be provided in any
such document. To the best of Purchaser's knowledge, Purchaser
has not failed to disclose to Seller any fact that is material to
Purchaser's ability to perform its obligations under the
Manufacturing Agreement or operate the Manufacturing Operations
or the Manufacturing Assets.
ARTICLE VII
Pre-Closing Covenants
7.1 Access. Prior to the Closing, upon reasonable notice
from Purchaser to Seller, Seller will afford to the officers,
attorneys, accountants, or other authorized representatives
(including environmental consultants) of Purchaser reasonable
access during normal business hours to the employees, facilities,
and the books and records of the Manufacturing Operations and of
Seller relating to the Manufacturing Operations so as to afford
Purchaser full opportunity to make such review, examination, and
investigation of the Manufacturing Operations as Purchaser may
reasonably desire to make, including an environmental evaluation
of the Manufacturing Operations and the Facility. Purchaser will
be permitted to make extracts from or to make copies of such
books and records as may be reasonably necessary in connection
therewith. Prior to the Closing, Seller will promptly furnish or
cause to be furnished to Purchaser such available updated
financial and operating data and other information pertaining to
the Manufacturing Operations as Purchaser may reasonably request.
7.2 Conduct of the Manufacturing Operations. Except as set
forth on Schedule 7.2 or as otherwise consented to by Purchaser
in writing (which consent shall not be unreasonably withheld),
prior to the Closing, Seller will, in respect of its conduct of
the Manufacturing Operations:
(a) (i) conduct the Manufacturing Operations only in
the ordinary course of business and consistent with past
practice, (ii) maintain the Manufacturing Assets in at least
as good condition (reasonable wear and tear excepted) as
they are being maintained as of the date hereof, and
(iii) use its commercially reasonable efforts to keep the
Manufacturing Operations intact and maintain the goodwill
associated with the Manufacturing Operations;
(b) not fail to pay or discharge when due any
liabilities of which the failure to pay or discharge will
cause any material damage or risk of material loss to it,
any of the Manufacturing Assets, or the Manufacturing
Operations;
(c) not purchase, sell, lease, or dispose of, or make
any contract for the purchase, sale, lease, or disposition
of, or subject to Lien, any Manufacturing Assets other than
in the ordinary course of the Manufacturing Operations;
(d) not grant to any Employee of the Manufacturing
Operations any increase in compensation or in severance or
termination pay, grant any severance or termination pay, or
enter into any employment agreement with any Employee,
except (i) as may be required or permitted under employment
or termination agreements or established policies or
practices of Seller in effect on the date hereof,
(ii) increases in compensation or severance pay or grants of
severance or termination pay occurring in the ordinary
course of business consistent with past practice, or
(iii) grants of so-called "stay bonuses" so long as Seller
shall remain obligated to pay any amounts granted
thereunder;
(e) not adopt or amend any collective bargaining
agreements in respect of the Manufacturing Operations;
(f) except as expressly contemplated by this
Agreement, not make or suffer any material amendment or
termination of any Contract or Permit, whether or not in the
ordinary course of business;
(g) not take or omit to take any action that would
render any representation or warranty of Seller in Article V
materially untrue or incorrect if such representation or
warranty were made immediately after the taking of or
failure to take such action; and
(h) not agree, in writing or otherwise, to do any of
the foregoing.
7.3 Notifications. Each of Seller and Purchaser will
provide prompt written notice to the other party (in any event
within five business days) after any change in any of the
information contained in its representations and warranties made
in Article V or VI, as the case may be, or any Exhibits or
Schedules hereto and shall promptly furnish any information that
the other party may reasonably request in relation to any such
change; provided, however, that such notice shall not operate to
cure any breach of the representations and warranties made in
Article V or VI, as the case may be, or any Exhibit or Schedule
hereto.
7.4 Governmental Filings. Each of the parties hereto will
use its commercially reasonable efforts to obtain, and to
cooperate with the other in obtaining, all authorizations,
consents, orders, and approvals of Governmental Entities that may
be or become necessary in connection with the consummation of the
transactions contemplated by this Agreement, prior to or after
the Closing, and to take all reasonable actions to avoid the
entry of any Order of any Governmental Entity prohibiting the
consummation of the transactions contemplated hereby.
7.5 Injunctions. Without limiting the generality or effect
of any provision of Section 7.4 or Article VIII, if any United
States, state, or foreign court having jurisdiction over any
party hereto issues or otherwise promulgates any injunction or
other Order prior to the Closing that prohibits the consummation
of the transactions contemplated hereby, the parties hereto will
use their respective commercially reasonable efforts to have such
injunction or other Order dissolved or otherwise eliminated as
promptly as practicable and, prior to or after the Closing, to
pursue the underlying litigation diligently and in good faith.
7.6 Satisfaction of Conditions. Without limiting the
generality or effect of any provision of Article VIII, prior to
the Closing, each of the parties hereto will use its commercially
reasonable efforts with due diligence and in good faith to
satisfy promptly all conditions required hereby to be satisfied
by such party in order to expedite the consummation of the
transactions contemplated hereby.
7.7 Confidentiality. Each of the parties hereto will treat
in confidence all documents, materials, and other information
(including information relating to supply and sales agreements
and relationships with third persons) disclosed by any other
party hereto that is not its affiliate, whether during the course
of the negotiations leading to the execution of this Agreement or
thereafter, in its investigation of the other parties and in the
preparation of agreements, schedules, and other documents
relating to the consummation of the transactions contemplated
hereby. Prior to the Closing, and in the event that this
Agreement is terminated, no party hereto will use any information
furnished by any other party hereto that is not its affiliate in
its or any of its affiliates' businesses. If this Agreement is
terminated, each of the parties hereto will use its commercially
reasonable efforts to return at the request of any other party
hereto all originals and copies of non-public documents and
materials that have been furnished in connection with this
Agreement and will make no further use thereof or of the
information furnished hereunder.
ARTICLE VIII
Conditions to Closing
8.1 Conditions Precedent to Obligations of Purchaser and
Seller. The respective obligations of each of Purchaser and
Seller under this Agreement to consummate the transactions
contemplated hereby will be subject to the satisfaction, at or
prior to the Closing, of all of the following conditions:
(a) each approval, consent, or waiver of any
Governmental Entity or other person identified with an
asterisk on Schedule 5.4 or 6.4 as being a condition of the
Closing shall have been obtained; and
(b) there shall not have been entered a preliminary or
permanent injunction, temporary restraining order, or other
Order of any Governmental Entity, the effect of which
prohibits the Closing.
8.2 Additional Conditions Precedent to Obligations of
Purchaser. The obligations of Purchaser under this Agreement to
consummate the transactions contemplated hereby will be subject
to the satisfaction, at or prior to the Closing, of all of the
following conditions, any one or more of which may be waived at
the option of Purchaser.
(a) Accuracy of Representations and Warranties. Each
of the representations and warranties of Seller contained
herein shall be true and correct in all material respects on
and as of the Closing Date with the same force and effect as
though the same had been made on and as of the Closing Date
other than any such representations and warranties that
specifically relate to an earlier date.
(b) Performance of Covenants. Seller shall have
performed and complied with the covenants and provisions of
this Agreement required to be performed or complied with by
it between the date hereof and the Closing Date.
(c) Closing Deliveries. Seller shall have delivered
to Purchaser each item set forth in Section 9.1 required to
be delivered by it on or before the Closing Date.
8.3 Additional Conditions Precedent to Obligations of
Seller. The obligations of Seller under this Agreement to
consummate the transactions contemplated hereby will be subject
to the satisfaction, at or prior to the Closing, of all the
following conditions, any one or more of which may be waived at
the option of Seller.
(a) Accuracy of Representations and Warranties. Each
of the representations and warranties of Purchaser contained
herein shall be true and correct in all material respects on
and as of the Closing Date with the same force and effect as
though the same had been made on and as of the Closing Date
other than any such representations and warranties that
specifically relate to an earlier date.
(b) Performance of Covenants. Purchaser shall have
performed and complied with the covenants and provisions of
this Agreement required to be performed or complied with by
it between the date hereof and the Closing Date.
(c) Closing Deliveries. Purchaser shall have
delivered to Seller each item set forth in Section 9.2
required to be delivered by it on or before the Closing
Date.
ARTICLE IX
Closing Deliveries
9.1 Seller's Deliveries. At the Closing, Seller will
deliver to Purchaser the following, at the expense of Seller and
in proper form for recording when appropriate:
(a) Transfer Documents. Such bills of sale,
assumption agreements, assignments, deeds, consents, and
other good and sufficient instruments of transfer
(collectively, "Transfer Documents") conveying and
transferring to Purchaser title to the Manufacturing Assets
and obligations for the Assumed Liabilities as Purchaser may
reasonably request;
(b) Sublease. A sublease covering the sublease of the
Facility located in Redmond, Washington in substantially the
form of Exhibit C;
(c) Manufacturing Agreement. The Manufacturing
Agreement in substantially the form of Exhibit A duly
executed by Seller;
(d) Transition Services Agreements. A transition
services agreement covering the provision of certain
transition services by Purchaser to Seller in substantially
the form of Exhibit D-1 and a transition services agreement
covering the provision of certain transition services by
Seller to Purchaser in substantially the form of Exhibit D-
2, in each case duly executed by Seller;
(e) Officer's Certificate. An officer's certificate,
dated as of the Closing Date, duly executed by a duly
authorized officer of Seller certifying that: (i) the duly
executed copy of the resolutions of the board of directors
of Seller authorizing and approving the execution and
delivery of this Agreement and each Seller Document and the
consummation of the transactions contemplated hereby and
thereby as attached thereto are true, correct, and complete
and have not been modified or withdrawn; and (ii) the
conditions set forth in Sections 8.2(a) and 8.2(b) are fully
satisfied; and
(f) Releases. All documents as are necessary to
release all Liens on the Manufacturing Assets.
9.2 Purchaser's Deliveries. At the Closing, Purchaser will
deliver to Seller the following, at the expense of Purchaser:
(a) Purchase Price. The Unadjusted Purchase Price in
accordance with Section 3.1;
(b) Sublease. A sublease covering the sublease of the
Facility located in Redmond, Washington in substantially the
form of Exhibit C duly executed by Purchaser;
(c) Manufacturing Agreement. The Manufacturing
Agreement in substantially the form of Exhibit A duly
executed by Purchaser;
(d) Promissory Note. The Note in substantially the
form of Exhibit B duly executed by Purchaser;
(e) Transition Services Agreements. A transition
services agreement covering the provision of certain
transition services by Purchaser to Seller in substantially
the form of Exhibit D-1 and a transition services agreement
covering the provision of certain transition services by
Seller to Purchaser in substantially the form of Exhibit D-
2, in each case duly executed by Purchaser;
(f) Officer Certificate. An officer's certificate,
dated as of the Closing Date, duly executed by a duly
authorized officer of Purchaser certifying that the
conditions set forth in Sections 8.3(a) and 8.3(b) are fully
satisfied.
ARTICLE X
Post-Closing Covenants
10.1 Discharge of Business Obligations. From and after the
Closing Date, Seller shall pay and discharge, in accordance with
past practice but not less than on a timely basis, all
obligations and liabilities incurred prior to the Closing Date in
respect of the Manufacturing Operations or the Manufacturing
Assets (except for the Assumed Liabilities).
10.2 Payments Received. After the Closing, each of Seller
and Purchaser will hold and promptly transfer and deliver to the
other, from time to time as and when received by them, any cash,
checks with appropriate endorsements (using their commercially
reasonable efforts not to convert such checks into cash), or
other property that they may receive on or after the Closing that
properly belongs to the other party, including any insurance
proceeds, and will account to the other for all such receipts.
10.3 Maintenance of Books and Records. Each of Seller and
Purchaser shall preserve until the seventh anniversary of the
Closing Date all records possessed or to be possessed by such
party relating to any of the assets or liabilities of the
Manufacturing Operations or the Manufacturing Assets prior to the
Closing Date. After the Closing Date, where there is a
legitimate purpose, such party shall provide the other parties
with access, upon prior reasonable written request specifying the
need therefor, during regular business hours, to (i) the officers
and employees of such party and (ii) the books of account and
records of such party, but, in each case, only to the extent
relating to the assets, liabilities, or business of the
Manufacturing Operations prior to the Closing Date, and the other
parties and their representatives shall have the right to make
copies of such books and records; provided, however, that the
foregoing right of access shall not be exercisable in such a
manner as to interfere unreasonably with the normal operations
and business of such party; provided, further, that as to so much
of such information as constitutes trade secrets or confidential
business information of such party, the requesting party and its
officers, directors, and representatives will use due care to not
disclose such information except to the extent such information
(i) is required to be disclosed pursuant to an Order or request
of a Governmental Entity having competent jurisdiction (provided
the party seeking to disclose such information provides the other
party or parties with reasonable prior notice thereof) or
(ii) which can be shown to have been generally available to the
public other than as a result of a breach of this Section 10.3.
10.4 Transfer Taxes. All sales, use, transfer, stamp,
conveyance, value added, or other similar taxes, duties, excises,
or governmental charges imposed by any taxing jurisdiction,
domestic or foreign, and all recording or filing fees, notarial
fees, and other similar costs of Closing in respect of the
transfer of the Manufacturing Assets or otherwise on account of
this Agreement or the transactions contemplated hereby will be
borne by Seller. Seller will indemnify Purchaser against any
liability, direct or indirect, for any such taxes, duties,
excises, or governmental charges imposed on Purchaser or in
respect of the Manufacturing Assets that are attributable to any
taxable periods ending on or prior to the Closing Date or in
respect of the allocable portion of any taxable period that
includes but does not end on the Closing Date. Seller will also
indemnify Purchaser against all liabilities for taxes relating to
the business or assets of Seller for any period or portion
thereof ending prior to the Closing Date, to the extent that
Purchaser's liability for any such taxes directly results from
the failure of Seller to notify any taxing authority of the
transactions contemplated by this Agreement. Purchaser shall
cooperate with Seller to minimize such liability.
10.5 Employee and Employee Benefits Plans.
(a) Seller shall terminate its employment of all
employees of the Manufacturing Operations effective as May
1, 2001. Purchaser shall offer employment, as of May 1,
2001, to all employees of the Manufacturing Operations who
Purchaser deems necessary to support the performance of
Purchaser's obligations under the Manufacturing Agreement,
on terms and conditions of employment established by
Purchaser; provided, however, that Purchaser will endeavor
to employ such personnel in sufficient numbers (as
determined by Purchaser in its sole discretion) to ensure
compliance with its obligations under the Manufacturing
Agreement. Purchaser will provide Seller with notice of the
employees it will offer employment to as soon as reasonably
practicable after the Closing Date.
(b) Seller shall retain and shall be exclusively
responsible for, and shall indemnify and hold harmless
Purchaser, its officers, directors, stockholders, and
affiliates against, any obligation or liability (contingent
or otherwise) arising, on or before May 1, 2001, from or
relating to (i) the employment or termination of employment
of any person of the Manufacturing Operations, (ii) any
employee compensation or severance or benefit plan or
arrangement of any person of the Manufacturing Operations,
(iii) Part 6 of Title I of ERISA and Section 4980B of the
Code arising in connection with its employment or
termination of employment of any person and their eligible
beneficiaries ("COBRA"), and (iv) the Workers Adjustment and
Retraining Notification Act ("WARN Act").
(c) Purchaser shall be exclusively responsible for,
and shall indemnify and hold harmless Seller, its officers,
directors, stockholders, and affiliates against, any
obligation or liability (contingent or otherwise) arising,
after May 1, 2001, from or relating to (i) the employment or
termination of employment of any person of the Manufacturing
Operations, (ii) any employee compensation or benefit plan
or arrangement of any employee of Purchaser, (iii) COBRA,
and (iv) the WARN Act.
[*]
[*]
10.6 Repurchase Rights. In the event Purchaser proposes to
liquidate the Manufacturing Operations pursuant to proceedings
under Chapter 7 of the United States Bankruptcy Code within [*]
years after the Closing Date or otherwise dispose of the
Manufacturing Assets (other than to an affiliate) and cease the
Manufacturing Operations (a "Cessation of Business"), Purchaser
shall give written notice ("Purchaser's Notice") of such proposed
Cessation of Business to Seller. Within ten business days after
its receipt of Purchaser's Notice, Seller may notify Purchaser in
writing ("Seller's Notice") that Seller desires to purchase all,
but not less than all, the Manufacturing Assets, which notice
shall state that Seller unconditionally agrees to purchase the
Manufacturing Assets, for its then-fair market value, at a
closing date not less than [*] and nor more than [*] after the
date of Seller's Notice, in which event Purchaser and Seller will
proceed with such repurchase transaction. If Seller does not
deliver Seller's Notice within ten business days after Seller's
receipt of Purchaser's Notice, then Purchaser shall be free to
carry out the Cessation of Business without any restriction
hereunder.
10.7 Sale of Taiwan Manufacturing Facilities.
(a) As soon as reasonably practicable after the date
hereof, Seller, Metawave Communications Taiwan Ltd.
("Metawave Taiwan"), and Purchaser or a direct or indirect,
wholly-owned subsidiary of Purchaser ("Viasystems Taiwan")
will enter into an asset purchase agreement (the "Taiwan
Purchase Agreement") on substantially the same terms and
conditions as set forth herein (to the extent relevant),
pursuant to which Metawave Taiwan will sell, transfer,
convey, assign, and deliver to Purchaser or Viasystems
Taiwan, and Purchaser or Viasystems Taiwan, as the case may
be, will purchase and accept from Metawave Taiwan all of
Metawave Taiwan's right, title, and interest of Metawave
Taiwan in and to all of the manufacturing assets that are
necessary to operate the manufacturing operations located at
Metawave Taiwan's facility in Taipei, Taiwan (the "Taiwan
Manufacturing Assets").
(b) In consideration for the Taiwan Manufacturing
Assets, Purchaser or Viasystems Taiwan will pay to Seller or
its designee at the closing of the transactions contemplated
by the Taiwan Purchase Agreement, an aggregate amount equal
to the sum of (i) the net book value of the tangible
personal property as of the closing date plus (ii) the net
book value of the inventories as of the closing date.
(c) The closing of the transactions contemplated by
the Taiwan Purchase Agreement shall be subject to the
additional condition precedent that Viasystems shall have
formed a direct or indirect, wholly-owned subsidiary
organized under the laws of Taiwan and that such subsidiary
shall have obtained all consents, approvals, licenses,
authorizations, registrations, and permits from all
applicable Taiwan governmental authorities necessary to own
and/or operate the Taiwan Manufacturing Assets and/or to
conduct the manufacturing operations in Taiwan
(collectively, the "Taiwan Permits"). Viasystems shall use
reasonable commercial efforts to form such subsidiary and
obtain the Taiwan Permits as promptly as practicable
following the Closing hereunder.
10.8 Release of Liens. Seller shall, within 45 days after
the Closing Date, obtain a release of all of the Liens listed on
Schedule 5.12.
ARTICLE XI
Survival and Indemnification
11.1 Survival of Representations and Warranties. Each of
the representations and warranties contained in this Agreement
will survive the Closing and remain in full force and effect for
18 months after the Closing Date, except for the representations
and warranties contained in (i) Sections 5.16, which shall
survive the Closing and remain in effect for the statute of
limitation period applicable thereto and (ii) Section 5.12 which
shall survive the Closing and remain in full force and effect
indefinitely. Any claim in respect of any of such matters that
is not asserted by notice given as herein provided relating
thereto within such specified period of survival may not be
pursued and is hereby irrevocably waived after such time. Any
claim for an Indemnifiable Loss asserted within such period of
survival as herein provided will be timely made for purposes
hereof.
11.2 Limitations of Liability.
(a) For purpose of this Agreement, (i) "Indemnity
Payment" means any amount of Indemnifiable Losses required
to be paid pursuant to this Agreement, (ii) "Indemnitee"
means any person entitled to indemnification under this
Agreement, (iii) "Indemnifying Party" means any person
required to provide indemnification under this Agreement,
(iv) "Indemnifiable Losses" means any and all damages,
losses, liabilities, obligations, costs, and expenses, and
any and all claims, demands, or actions, suits, or
proceedings (by any person including any Governmental
Entity), including the costs and expenses of any and all
actions, suits, proceedings, demands, assessments,
judgments, settlements, and compromises relating thereto and
including reasonable attorneys' fees and expenses in
connection therewith, and (v) "Third Party Claim" means any
claim, action, suit, or proceeding made or brought by any
person who or which is not a party to this Agreement.
(b) Notwithstanding any other provision hereof or of
any applicable Law, no Indemnitee will be entitled to make a
claim against an Indemnifying Party in respect of any breach
of a representation or warranty under Section 11.3(a)(i) or
11.3(b)(i) unless and until the aggregate amount of such
claims in respect of breaches of representations being
asserted for Indemnifiable Losses under Section 11.3(a)(i)
or 11.3(b)(i), as applicable, exceeds [*], in which event
the Indemnitee will be entitled to make a claim against
Indemnifying Party to the extent of the full amount of
Indemnifiable Losses.
(c) Notwithstanding any other provision of this
Agreement to the contrary, the total indemnification
obligations in respect of a breach of representation or
warranty of each of Seller under Section 11.3(a)(i) and
Purchaser under Section 11.3(b)(i) will not exceed [*].
11.3 Indemnification.
(a) Subject to Sections 11.1 and 11.2, Seller will
indemnify, defend, and hold harmless Purchaser and its
directors, officers, partners, employees, agents, and
representatives from and against any and all Indemnifiable
Losses to the extent relating to, resulting from, or arising
out of:
(i) any breach of any representation or warranty
of Seller contained in this Agreement;
(ii) any breach or nonfulfillment of any agreement
or covenant of Seller under the terms of this
Agreement;
(iii) any liability or obligation of Seller or
its affiliates other than any Assumed Liability; and
(iv) the conduct of the Manufacturing Operations
or any portion thereof, or the use or ownership of any
of the Manufacturing Assets, prior to the Closing Date.
(b) Subject to Sections 11.1 and 11.2, Purchaser will
indemnify, defend, and hold harmless Seller and its
directors, officers, partners, employees, agents, and
representatives from and against any and all Indemnifiable
Losses to the extent relating to, resulting from, or arising
out of:
(i) any breach of any representation or warranty
of Purchaser contained in this Agreement;
(ii) any breach or nonfulfillment of any agreement
or covenant of Purchaser under the terms of this
Agreement;
(iii) any Assumed Liability; and
(iv) the conduct of the Manufacturing Operations
or any portion thereof or the use or ownership of any
of the Manufacturing Assets after the Closing Date.
11.4 Defense of Claims.
(a) If any Indemnitee receives notice of the assertion
or commencement of any Third Party Claim against such
Indemnitee in respect of which an Indemnifying Party is
obligated to provide indemnification under this Agreement,
the Indemnitee will give such Indemnifying Party reasonably
prompt written notice thereof, but in any event not later
than 20 days after receipt of such notice of such Third
Party Claim. Such notice will describe the Third Party
Claim in reasonable detail, will include copies of all
material written evidence thereof and will indicate the
estimated amount, if reasonably practicable, of the
Indemnifiable Loss that has been or may be sustained by the
Indemnitee. The Indemnifying Party will have the right to
participate in or, by giving written notice to the
Indemnitee, to assume, the defense of any Third Party Claim
at such Indemnifying Party's own expense and by such
Indemnifying Party's own counsel (reasonably satisfactory to
the Indemnitee), and the Indemnitee will cooperate in good
faith in such defense.
(b) If, within ten days after giving notice of a Third
Party Claim to an Indemnifying Party pursuant to
Section 11.4(a), an Indemnitee receives written notice from
the Indemnifying Party that the Indemnifying Party has
elected to assume the defense of such Third Party Claim as
provided in the last sentence of Section 11.4(a), the
Indemnifying Party will not be liable for any legal expenses
subsequently incurred by the Indemnitee in connection with
the defense thereof; provided, however, that if the
Indemnifying Party fails to take reasonable steps necessary
to defend diligently such Third Party Claim within ten days
after receiving written notice from the Indemnitee that the
Indemnitee believes the Indemnifying Party has failed to
take such steps or if the Indemnifying Party has not
undertaken fully to indemnify the Indemnitee in respect of
all Indemnifiable Losses relating to the matter, the
Indemnitee may assume its own defense, and the Indemnifying
Party will be liable for all reasonable costs or expenses
paid or incurred in connection therewith. Without the prior
written consent of the Indemnitee, the Indemnifying Party
will not enter into any settlement of any Third Party Claim
that would lead to liability or create any financial or
other obligation on the part of the Indemnitee for which the
Indemnitee is not entitled to indemnification hereunder. If
a firm offer is made to settle a Third Party Claim without
leading to liability or the creation of a financial or other
obligation on the part of the Indemnitee for which the
Indemnitee is not entitled to indemnification hereunder and
the Indemnifying Party desires to accept and agree to such
offer, the Indemnifying Party will give written notice to
the Indemnitee to that effect. If the Indemnitee fails to
consent to such firm offer within ten days after its receipt
of such notice, the Indemnitee may continue to contest or
defend such Third Party Claim and, in such event, the
maximum liability of the Indemnifying Party as to such Third
Party Claim will not exceed the amount of such settlement
offer, plus costs and expenses paid or incurred by the
Indemnitee through the end of such ten-day period.
(c) A failure to give timely notice or to include any
specified information in any notice as provided in
Section 11.4(a) or 11.4(b) will not affect the rights or
obligations of any party hereunder except and only to the
extent that, as a result of such failure, any party which
was entitled to receive such notice was deprived of its
right to recover any payment under its applicable insurance
coverage or was otherwise damaged as a result of such
failure.
(d) The Indemnifying Party will have a period of
30 days within which to respond in writing to any claim by
an Indemnitee on account of an Indemnifiable Loss that does
not result from a Third Party Claim (a "Direct Claim"). If
the Indemnifying Party does not so respond within such 30-
day period, the Indemnifying Party will be deemed to have
rejected such claim, in which event the Indemnitee will be
free to pursue such remedies as may be available to the
Indemnitee on the terms and subject to the provisions of
this Article XI.
(e) If the amount of any Indemnifiable Loss, at any
time subsequent to the making of an Indemnity Payment, is
reduced by recovery, settlement, or otherwise under or
pursuant to any insurance coverage, or pursuant to any
claim, recovery, settlement, or payment by or against any
other person, the amount of such reduction, less any costs,
expenses, premiums, or taxes incurred in connection
therewith will promptly be repaid by the Indemnitee to the
Indemnifying Party. Upon making any Indemnity Payment the
Indemnifying Party will, to the extent of such Indemnity
Payment, be subrogated to all rights of the Indemnitee
against any third person that is not an affiliate of the
Indemnitee in respect of the Indemnifiable Loss to which the
Indemnity Payment relates; provided, however, that (i) the
Indemnifying Party shall then be in compliance with its
obligations under this Agreement in respect of such
Indemnifiable Loss and (ii) until the Indemnitee recovers
full payment of its Indemnifiable Loss, any and all claims
of the Indemnifying Party against any such third person on
account of such Indemnity Payment will be subrogated and
subordinated in right of payment to the Indemnitee's rights
against such third person. Without limiting the generality
or effect of any other provision hereof, each such
Indemnitee and Indemnifying Party will duly execute upon
request all instruments reasonably necessary to evidence and
perfect the above-described subrogation and subordination
rights.
11.5 Exclusive Remedy. The indemnification provisions of
this Article XI shall be the sole and exclusive remedy of a party
after the Closing Date for any breach of any of the terms,
conditions, warranties, representations, or covenants herein or
any right, claim, or cause of action arising out of the
transactions contemplated hereby except to the extent such claim
or cause of action is based on fraud or fraudulent inducement.
ARTICLE XII
Termination
12.1 Termination. Notwithstanding any other provision of
this Agreement to the contrary, this Agreement may be terminated
at any time prior to the Closing, if, in the case of a
termination pursuant to Section 12.1(b) or 12.1(c), the party
seeking to terminate is not then in material Default or breach of
this Agreement:
(a) by the mutual written consent of Purchaser and
Seller;
(b) by either Purchaser or Seller, by written notice
to the other, if the Closing shall not have occurred on or
before April 1, 2001;
(c) by either Purchaser or Seller if, prior to the
Closing Date, the other party is in material breach of any
representation, warranty, covenant, or agreement contained
herein and such breach shall not be cured within 15 days
after the date of notice of default served by the party
claiming such material breach;
(d) by either Purchaser or Seller, by written notice
to the other, if there shall have been entered a final,
nonappealable injunction or other Order of any Governmental
Entity restraining or prohibiting the consummation of the
transactions contemplated hereby or any material part
thereof.
12.2 Effect of Termination. If this Agreement is validly
terminated pursuant to Section 12.1, this Agreement, except for
Sections 7.7 and 12.1 and Article XIII, shall become null and
void and of no further force or effect and all obligations of the
parties hereto shall terminate and there shall be no liability or
obligation of any party hereto, except that nothing in this
Section 12.2 shall relieve any party from liability for its
Default or breach of any representation, warranty, covenant, or
agreement under this Agreement prior to its termination.
ARTICLE XIII
Miscellaneous Provisions
13.1 Amendments. This Agreement may be amended, modified,
or supplemented at any time only pursuant to a written instrument
executed by each of the parties hereto.
13.2 Assignment. This Agreement and the rights and
obligations hereunder shall not be assigned, delegated, or
otherwise transferred (whether by operation of law, by merger, by
contract, or otherwise) without the prior written consent of the
other party hereto; provided, however, that (i) Purchaser may,
without obtaining the prior written consent of Seller,
(A) assign, delegate, or otherwise transfer its rights and
obligations hereunder to any direct or indirect wholly-owned
subsidiary of Purchaser, or (B) make a collateral assignment of
its rights hereunder to any institutional lender to Purchaser,
and (ii) Purchaser or Seller, as the case may be, may assign this
Agreement to any person acquiring all or substantially all of the
assets or stock of Purchaser or Seller, as the case may be;
provided, further, that notwithstanding any such assignment, the
assignor shall remain liable for the performance of all its
obligations under this Agreement. Seller shall execute such
acknowledgements of such assignments and collateral assignments
in such forms as Purchaser or any such institutional lender may
from time to time reasonably request. Any attempted assignment,
delegation, or transfer in violation of this Section 13.2 shall
be void and of no force or effect.
13.3 Binding Effect. Except as otherwise expressly provided
herein, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns.
13.4 Construction. All references to "Articles,"
"Sections," "Schedules," and "Exhibits" contained in this
Agreement are, unless specifically indicated otherwise,
references to articles, sections, schedules, or exhibits of or to
this Agreement. Whenever in this Agreement the singular number
is used, the same shall include the plural where appropriate (and
vice versa), and words of any gender shall include each other
gender where appropriate. As used in this Agreement, the
following words or phrases have the meanings indicated:
(i) "day" means a calendar day; (ii) "business day" means any day
other than Saturday, Sunday, or any day on which banks in
Seattle, Washington are required or authorized by Law to be
closed for business; (iii) "U.S." or "United States" means the
United States of America; (iv) "dollar" or "$" means lawful
currency of the United States; (v) "including," "include," or
derivatives thereof means "including without limitation";
(vi) references in this Agreement to specific Laws (such as the
Code and ERISA), or to specific sections or provisions of Laws,
apply to the respective U.S. or state Laws that bear the names so
specified and to any succeeding Law, section, or provision
corresponding thereto; (vii) "person" means any individual,
corporation, partnership, joint venture, limited liability
company, trust, unincorporated association, or other legal entity
or form of business or Governmental Entity; (viii) each
accounting term not otherwise defined in this Agreement has the
meaning assigned to it in accordance with GAAP; and
(ix) "affiliate" has the meaning given that term in Rule 12b-2 of
Regulation 12B under the Securities Exchange Act of 1934, as
amended.
13.5 Counterparts. This Agreement may be executed in
multiple counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute one and the same instrument.
13.6 Entire Agreement. This Agreement (including the
Exhibits and Schedules hereto) constitutes the entire agreement
of the parties hereto in respect of the subject matter hereof,
and supersedes all prior agreements or understandings, among the
parties hereto in respect of the subject matter hereof.
13.7 Expenses. Except as otherwise expressly provided
herein, each party hereto will pay its respective expenses
incurred in connection with this Agreement and in preparing to
consummate and consummating the transactions contemplated hereby,
whether or not the transactions contemplated hereby are
consummated.
13.8 Finder's Fee, etc. There are no brokers or finders
involved in this Agreement or the transactions contemplated
hereby, and each party hereto shall indemnify and hold harmless
the other party hereto against and in respect of any claim for
brokerage or other commissions or fees in respect of this
Agreement or to the transactions contemplated hereby based in any
way on agreements, arrangements, or understandings claimed to
have been made by Purchaser, on the one hand, or by Seller, on
the other hand, with any third party.
13.9 Further Assurances. From time to time, as and when
requested by any party hereto, the other party will execute and
deliver, or cause to be executed and delivered, all such
documents and instruments as may be reasonably necessary to
consummate the transactions contemplated hereby.
13.10 Governing Law. This Agreement shall be enforced,
governed, and construed in all respects in accordance with the
laws of the State of Washington without giving effect to the
conflict-of-law principles of such State.
13.11 Headings. The article and section headings of
this Agreement are for convenience of reference only and shall
not be deemed to alter or affect the meaning or interpretation of
any provision hereof.
13.12 Jurisdiction. The parties hereto to shall try to
come to an amicable settlement of any dispute, controversy, or
claim arising out of or relating to this Agreement, or the
breach, termination, or validity thereof by first seeking to
resolve the dispute by negotiation of the appropriate officers of
each party, with the request for resolution being passed to each
officer at the next higher level of authority in turn. Should
the parties fail to settle any such matter amicably, the matter
shall be submitted to non-binding mediation to be conducted in
Seattle, Washington by a mutually agreed non-affiliated neutral
party. In the event mediation is unsuccessful, the parties
hereto agree that any action, suit, or proceeding seeking to
enforce any provision of, or based on any matter arising out of
or relating to, this Agreement or the transactions contemplated
hereby can only be brought in federal court sitting in King
County, Washington or, if such court does not have jurisdiction,
any district court sitting in King County, Washington, and each
party hereto hereby consents to the jurisdiction of such courts
(and of the appropriate appellate courts therefrom) in any such
action, suit, or proceeding and irrevocably waives, to the
fullest extent permitted by Law, any objection that it may now or
hereafter have to the laying of the venue of any such action,
suit, or proceeding in any such court or that any such action,
suit, or proceeding that is brought in any such court has been
brought in an inconvenient forum.
13.13 Notices. Any notice, demand, request,
instruction, correspondence, or other document required or
permitted to be given hereunder by any party to the others shall
be in writing and delivered (i) in person, (ii) by a nationally
recognized overnight courier service requiring acknowledgment of
receipt of delivery, (iii) by United States certified mail,
postage prepaid and return receipt requested, or (iv) by
facsimile, as follows:
If to Seller, to:
Metawave Communications Corporation
00000 Xxxxxxx Xxxx, XX
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to (which shall not constitute
notice):
Metawave Communications Corporation
00000 Xxxxxxx Xxxx XX
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx-Xxxxx
Facsimile No.: (000) 000 0000
If to Purchaser, to:
Viasystems, Inc.
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to (which shall not constitute
notice):
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: R. Xxxxx Xxxxx
Facsimile No.: (000) 000-0000
Notice shall be deemed given, received, and effective on:
(i) if given by personal delivery or courier service, the date of
actual receipt by the receiving party, or if delivery is refused
on the date delivery was first attempted; (ii) if given by
certified mail, the third day after being so mailed if posted
with the United States Postal Service; and (iii) if given by
facsimile, the date on which the facsimile is transmitted if
confirmed by transmission report during the transmitter's normal
business hours, or at the beginning of the next business day
after transmission if confirmed at any time other than the
transmitter's normal business hours. Any person entitled to
notice may change any address or facsimile number to which notice
is to be given to it by giving notice of such change of address
or facsimile number as provided in this Section 13.13. The
inability to deliver notice because of changed address or
facsimile number of which no notice was given shall be deemed to
be receipt of the notice as of the date such attempt was first
made.
13.14 Passage of Title; Risk of Loss. Legal title,
equitable title, and risk of loss in respect of the Manufacturing
Assets will not pass to Purchaser until such Manufacturing Assets
are transferred to Purchaser at the Closing, which transfer, once
it has occurred, will be deemed effective for tax, accounting,
and other computational purposes as of 11:59 P.M. (Pacific Time)
on the Closing Date.
13.15 Press Releases. No party hereto shall disclose or
issue or cause the publication of any press release or other
public announcement in respect of this Agreement or the
transactions contemplated hereby without the prior written
consent of the other parties hereto, which consent will not be
unreasonably conditioned, delayed, or withheld; provided,
however, that nothing herein will prohibit any party hereto from
issuing or causing publication of any such press release or
public announcement to the extent that such party determines such
action to be required by Law or the rules of any national stock
exchange applicable to it or its affiliates, in which event the
party making such determination will, if practicable in the
circumstances, use commercially reasonable efforts to allow the
other party reasonable time to comment on such release or
announcement in advance of its issuance.
13.16 Severability. If any provision of this Agreement
or the application of such provision to any person or
circumstance shall be held (by a court of competent jurisdiction)
to be invalid, illegal, or unenforceable under the applicable Law
of any jurisdiction, (i) the remainder of this Agreement or the
application of such provision to other persons or circumstances
or in other jurisdictions shall not be affected thereby, and
(ii) such invalid, illegal, or unenforceable provision shall not
affect the validity or enforceability of any other provision of
this Agreement.
13.17 Third-Party Beneficiaries. Except as expressly
provided in Article XI, nothing express or implied in this
Agreement is intended or shall be construed to confer upon or
give any person other than the parties hereto and their
respective successors and permitted assigns any rights or
remedies under of by reason of this Agreement or the transactions
contemplated hereby.
13.18 Waiver. The rights and remedies provided for
herein are cumulative and not exclusive of any right or remedy
that may be available to any party whether at law, in equity, or
otherwise. No delay, forbearance, or neglect by any party,
whether in one or more instances, in the exercise or any right,
power, privilege, or remedy hereunder or in the enforcement of
any term or condition of this Agreement shall constitute or be
construed as a waiver thereof. No waiver of any provision
hereof, or consent required hereunder, or any consent or
departure from this Agreement, shall be valid or binding unless
expressly and affirmatively made in writing and duly executed by
the party to be charged with such waiver. No waiver shall
constitute or be construed as a continuing waiver or a waiver in
respect of any subsequent breach or Default, either of similar or
different nature, unless expressly so stated in such writing.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
METAWAVE COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
VIASYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: EVP - Business
Development
