ASSET PURCHASE AGREEMENT by and between VERSO TECHNOLOGIES, INC. as “Buyer” and PARADYNE NETWORKS, INC. as “Seller” As of December 29, 2006
Exhibit 2.1
by and between
VERSO TECHNOLOGIES, INC.
as “Buyer”
and
PARADYNE NETWORKS, INC.
as “Seller”
As of December 29, 2006
This Asset Purchase Agreement (the “Agreement”), dated as of December 29, 2006, is by
and between Verso Technologies, Inc., a Minnesota corporation (“Buyer”), Paradyne Networks,
Inc., a Delaware corporation (“Seller”), and, for the limited purposes of being bound by
Sections 9.1(b), 9.1(c) and 9.5 hereof, Zhone Technologies, Inc., a
Delaware corporation (“Zhone”).
WITNESSETH
WHEREAS, Seller owns certain assets that it uses in the conduct of the Business (as defined
below); and
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, the
Purchased Assets (as defined below), upon the terms and subject to the conditions of this
Agreement.
NOW, THEREFORE, in consideration of the respective covenants and promises contained herein and
for other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
DEFINITIONS
1.1 Defined Terms. As used herein, the terms below shall have the following meanings.
Any of such terms, unless the context otherwise requires, may be used in the singular or plural,
depending upon the reference.
“Action” shall mean any action, claim, suit, litigation or proceeding filed with any
federal, state or local court or governmental authority.
“Books and Records” shall mean all books and records of Seller relating primarily to
the Business, including all product designs and customer and supplier lists of the Business.
“Business” shall mean the business of manufacturing, selling and supporting the iMARC
product line and the 7123 TI CSU/DSU product.
“Code” shall mean the Internal Revenue Code of 1986, as amended, and the rules and
regulations thereunder.
“Contracts” shall mean all agreements, contracts, leases, licenses, instruments,
obligations and commitments to which Seller is a party or is bound relating primarily to the
operation of the Business, all of which are listed on Schedule 1.1 hereto; provided
that in no event shall the Contracts include any of the Excluded Agreements.
“Court Order” shall mean any judgment, writ, consent decree, injunction,
determination, ruling or order of any federal, state or local court or governmental authority that
is binding on any person or its property under applicable law.
“Disclosure Letter” shall mean that certain Disclosure Letter dated as of the date
hereof and delivered by Seller to Buyer on the date hereof in connection with this Agreement.
“Encumbrance” shall mean any claim, lien, pledge, option, charge, easement, security
interest, deed of trust, mortgage, encumbrance or other right of third parties.
“Engineering Equipment” shall mean the Equipment listed under the heading “Engineering
Equipment” on Schedule 1.1 hereto.
“Epidemic Failure” shall mean the failure of any product of the Business to be free
from defects in materials and workmanship where the number of failures attributable to an
identical, repetitive defect exceeds five percent (5%) of the total units of such product shipped
in any twelve (12) month period.
“Equipment” shall mean all machinery, spare parts, and manufacturing and test
equipment of Seller that are primarily used or held for use in connection with the operation of the
Business.
“Excluded Assets” shall mean all assets of Seller of whatsoever nature not listed on
Schedule 1.1 hereto and not to be acquired by Buyer hereunder, including, without
limitation:
(a) all contracts, agreements and other commitments listed on Schedule 1.2 hereto (the
“Excluded Agreements”);
(b) all Retained IP, as defined in the License Agreement (the “Retained IP”);
(c) all accounts receivable relating to the Business;
(d) all cash (including xxxxx cash), cash equivalents, bank accounts, deposits and similar
accounts (whether maintained at a bank, savings and loan or other financial institution),
marketable securities or any other cash deposits or marketable securities relating to the Business;
(e) all rights under this Agreement and the other agreements related to this Agreement; and
(f) all claims for refunds of taxes and other governmental charges or assessments paid by
Seller and arising from or pertaining to periods, activities, operations or events relating to the
Business occurring prior to the Closing Date.
“Intellectual Property” shall mean the Retained IP and the Transferred IP,
collectively.
“Intellectual Property Rights” shall mean any or all of the following and all rights
in, arising out of, or associated with: (a) all United States and foreign patents and utility
models and applications therefor, including provisional applications and all reissues, divisions,
re-examinations, renewals, extensions, continuations and continuations-in-part thereof; (b) all
trademarks, service marks, trade dress, logos and trade names, together with all translations,
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adaptations, derivations and combinations thereof and including all goodwill associated therewith
and all applications, registrations and renewals in connection therewith; (c) all rights in
inventions (whether patentable or not), invention disclosures, improvements, trade secrets,
proprietary information, know-how, technology and technical data; and (d) all copyrightable
material, copyright registrations and applications therefor and all other rights corresponding
thereto throughout the world including moral rights.
“Inventory” shall mean all inventory, raw materials, work in process, semi-finished
goods and finished goods of Seller that are primarily used or held for use in connection with the
operation of the Business.
“IP Assignment Agreement” shall mean that certain Intellectual Property Assignment
Agreement in the form attached hereto as Exhibit A.
“Liabilities” shall mean any direct or indirect liability, indebtedness, obligation,
commitment, expense, claim, guaranty or endorsement of or by any person of any type, whether
accrued, absolute, contingent, matured, unmatured or other.
“License Agreement” shall mean that certain License Agreement in the form attached
hereto as Exhibit B.
“Manufacturing Equipment” shall mean the Equipment listed under the heading
“Manufacturing Equipment” on Schedule 1.1 hereto.
“Material Adverse Effect” shall mean (a) with respect to the Business or the Purchased
Assets, any material adverse effect on or change in the Business and/or the Purchased Assets or on
the ability of Seller to consummate the transactions contemplated hereby, and (b) with respect to
Buyer, any material adverse effect or change in the assets, Liabilities or operations of Buyer or
on the ability of Buyer to consummate the transactions contemplated hereby.
“Ordinary Course of Business” or any similar phrase shall mean the ordinary course of
the normal, day-to-day operations of the Business consistent in nature, scope and magnitude with
the past practices of Seller; provided, however, any action taken by Seller that is
expressly contemplated by this Agreement shall be deemed to be in the Ordinary Course of Business.
“Purchased Assets” shall mean all of the assets, tangible and intangible, of Seller,
wherever located, that are primarily used or held for use by Seller in the conduct of the Business
as of the Closing Date, including, without limitation, the following assets, which are listed on
Schedule 1.1 hereto:
(a) all Contracts;
(b) all Equipment;
(c) all Inventory;
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(d) all Books and Records;
(e) all Transferred IP; and
(f) all claims of Seller against third parties relating to the Purchased Assets, whether
xxxxxx or inchoate, known or unknown, contingent or noncontingent;
provided that in no event shall the Purchased Assets include the Excluded Assets.
“Regulations” shall mean any laws, statutes, ordinances, regulations, rules, court
decisions and orders of any foreign, federal, state or local government.
“Representative” shall mean any officer, director, partner, manager, member,
principal, attorney, agent, employee or other representative.
“Schedule” shall mean a schedule to the Disclosure Letter.
“Seller’s Knowledge” or “Known to Seller” or any similar phrase shall mean the
actual knowledge of Xxxx Xxxxxx, Xxxx Xxxxxx or Xxxxx Xxxxxxx, and the knowledge such person would
reasonably be expected to have by virtue of such person’s title, position or duties performed for
Seller in the Ordinary Course of Business.
“Transferred IP” shall mean any Intellectual Property Rights owned by Seller and
primarily used by Seller in the conduct of the Business prior to the Closing Date which are listed
on Schedule 1.1 hereto; provided that in no event shall the Transferred IP include
any of the Retained IP.
“Unknown Assumed Liability” shall mean an Assumed Liability which satisfies both of
the following conditions: (a) the Assumed Liability arises out of any Action that is commenced by a
third party against Buyer during the fifteen (15) month period after the Closing Date but relates
to Seller’s acts or omissions occurring prior to the Closing Date; and (b) such Assumed Liability
described in the preceding clause (a) was not known to each of Buyer and Seller on or prior to the
Closing Date.
1.2 Other Defined Terms. The following terms shall have the meanings defined for such
terms in the Sections set forth below:
Term | Section | |||
Allocation
|
2.4 | |||
Assumed Liabilities
|
2.2 | |||
Business Employees
|
9.4 | (a) | ||
Buyer Employee Plans
|
9.4 | (b) | ||
Buyer Required Consents
|
7.4 | |||
Closing
|
3.1 | |||
Closing Date
|
3.1 | |||
Closing Payment
|
2.3 | (a) | ||
Competitive Business
|
9.5 | |||
Confidential Information
|
6.5 | (a) |
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Term | Section | |||
Damages
|
9.1 | (b) | ||
Disputed Inventory Payment
|
2.5 | |||
Excluded Liabilities
|
2.2 | |||
Inventory Auditor
|
2.5 | |||
Inventory Count
|
2.5 | |||
Inventory Date
|
2.5 | |||
Inventory Payment
|
2.5 | |||
Inventory Payment Date
|
2.5 | |||
IP Payment
|
2.3 | (b) | ||
IP Payment Date
|
2.3 | (b) | ||
IRS
|
2.4 | |||
Liability Threshold
|
9.1 | (b) | ||
Noncompete Parties
|
9.5 | |||
Noncompete Period
|
9.5 | |||
Objection Notice
|
2.5 | |||
Paradyne Marks
|
9.7 | |||
Purchase Price
|
2.3 | |||
Rejected Inventory
|
2.5 | |||
Required Financial Statements
|
9.8 | |||
SEC
|
9.8 | |||
Seller Required Consents
|
8.4 | |||
Transition Services
|
9.6 | (a) | ||
Transition Services Period
|
9.6 | (a) | ||
Verification Statement
|
2.5 |
ARTICLE II.
PURCHASE AND SALE OF PURCHASED ASSETS
PURCHASE AND SALE OF PURCHASED ASSETS
2.1 Sale of Assets. Upon the terms and subject to the conditions contained herein,
(a) at the Closing, conditioned upon Seller’s receipt of the Closing Payment, Seller shall sell,
convey, transfer, assign and deliver to Buyer, and Buyer shall purchase and acquire from Seller,
all of Seller’s right, title and interest as of the Closing Date in and to the Engineering
Equipment (including all Contracts and Books and Records relating thereto) and all Contracts listed
as Service Agreements on Schedule 1.1A, for the consideration specified below in
Section 2.3(a), (b) on the IP Payment Date, conditioned upon Seller’s receipt of the IP
Payment, Seller shall sell, convey, transfer, assign and deliver to Buyer, and Buyer shall purchase
and acquire from Seller, all of Seller’s right, title and interest as of the IP Payment Date in and
to the Transferred IP, for the consideration specified below in Section 2.3(b), and (c) on
the Inventory Payment Date, conditioned upon Seller’s receipt of the Inventory Payment, Seller
shall sell, convey, transfer,
assign and deliver to Buyer, and Buyer shall purchase and acquire from Seller, all of Seller’s
right, title and interest as of the Inventory Payment Date in and to the Manufacturing Equipment
and Inventory (including all Contracts and Books and Records relating thereto), for the
consideration specified below in Section 2.3(c). For purposes of clarification, (i) if
Buyer fails to deliver the Closing Payment on the Closing Date, then Seller shall not be obligated
to sell and transfer to Buyer the Engineering Equipment (or any other Purchased
Assets on any
subsequent payment date), (ii) if Buyer fails to deliver the IP Payment on the IP Payment Date,
then Seller shall not be obligated to sell and transfer to Buyer the Transferred IP (or any other
Purchased
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Assets on any subsequent payment date), and (iii) if Buyer fails to deliver the Inventory
Payment on the Inventory Payment Date, then Seller shall not be obligated to sell and transfer to
Buyer the Manufacturing Equipment or Inventory.
2.2 Assumption of Liabilities. Upon the terms and subject to the conditions contained
herein, effective as of the Closing, except with respect to Subsection (d) below which
shall be effective as of the Inventory Date, Buyer shall assume and become responsible for the
following Liabilities relating to the Business or the Purchased Assets (the “Assumed
Liabilities”): (a) any and all Liabilities under the Contracts constituting Purchased Assets
that arise or are required to be performed after the Closing; (b) any and all warranty, repair,
service, technical assistance, training, marketing assistance and support obligations relating to
the Business or the Purchased Assets arising in the Ordinary Course of Business out of warranties
provided under Section 4.13 (including, without limitation, any such obligations arising
from the Excluded Agreements) whether arising out of occurrences prior to, at or after the Closing;
(c) any and all Liabilities related to or arising from Seller’s termination of the Business
Employees (to the extent set forth on Schedule 2.2(c)) or Buyer’s employment of the
Business Employees at or after the Closing; (d) all financial and purchasing commitments made by
Seller or Seller’s affiliate with suppliers or contract manufacturers of the Business prior to the
Inventory Date to the extent set forth on Schedule 2.2(d) as updated by Seller and provided
to Buyer from time to time; and (e) subject to Section 9.1(c), any and all other
Liabilities, including without limitation, for tort, product liability, intellectual property
infringement or other claims relating to the Business or the Purchased Assets whether arising out
of occurrences prior to, at or after the Closing. Notwithstanding the foregoing, Buyer shall not
assume or otherwise become responsible for (A) any Liabilities under the Contracts assumed by Buyer
that arise after the Closing but that arise out of or relate to any breach by Seller that occurred
prior to the Closing, (B) any accounts payable or license fees relating to the operation of the
Business by Seller prior to the Closing, (C) any taxes relating to the operation of the Business by
Seller prior to the Closing, (D) any Liabilities of Seller relating to its employees, whether or
not associated with the Business (excluding the Liabilities specifically enumerated in Section
2.2(c)), (E) performance obligations of Seller under the Excluded Agreements relating to any
stock rotation rights or distributor return rights (other than a right of return pursuant to a
warranty, repair or service obligation) or other performance obligations of Seller to the
contracting parties under the Excluded Agreement subsequent to the Closing that are not in the
nature of the performance obligations to be assumed by Buyer under this Agreement, or (F) any
Liabilities of Seller other than the Assumed Liabilities (collectively, the “Excluded
Liabilities”).
2.3 Purchase Price. Buyer shall make the following payments to Seller (or Seller’s affiliate, as designated by
Seller) (collectively, the “Purchase Price”):
(a) At the Closing, cash in the amount of One Million Dollars ($1,000,000), payable by wire
transfer to an account designated by Seller not later than two (2) business days prior to the
Closing Date (the “Closing Payment”);
(b) On January 19, 2007 (the “IP Payment Date”), cash in the amount of One Million
Five Hundred Thousand Dollars ($1,500,000), payable by wire transfer to an account designated by
Seller not later than two (2) business days prior to the IP Payment Date (the “IP
Payment”); and
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(c) On the Inventory Payment Date, cash in the amount of the Inventory Payment, less
adjustments under Section 9.4, payable by wire transfer to an account designated by Seller
not later than two (2) business days prior to the Inventory Payment Date.
2.4 Purchase Price Allocation. Within thirty (30) days of the Closing, Seller shall
prepare a schedule setting forth a proposed tax allocation of the Purchase Price (plus Assumed
Liabilities) to the Purchased Assets in a manner consistent with Section 1060 of the Code and shall
deliver such schedule to Buyer for its review and approval. Buyer and Seller agree to use all
reasonable efforts to resolve any disagreements regarding such allocation as soon as practicable
thereafter, but in no event later than thirty (30) days subsequent to the date that Seller delivers
such allocation. In the event that Buyer and Seller are able to agree upon such allocation (such
final, mutually agreed upon allocation of the Purchase Price referred to herein as the
“Allocation”), then (a) the Allocation shall be conclusive and binding upon Buyer and
Seller for all purposes, (b) Buyer and Seller agree that all returns and reports and all financial
statements shall be prepared in a manner consistent with (and Buyer and Seller shall not otherwise
file a tax return position inconsistent with) the Allocation unless required by the Internal
Revenue Service (“IRS”) or any other applicable taxing authority, and (c) Buyer and Seller
shall each prepare and file on a timely basis with the IRS substantially identical initial and
supplemental IRS Forms 8594 “Asset Acquisition Statements Under Section 1060” consistent with the
Allocation. Not later than ten (10) business days prior to the filing of their respective Forms
8594 relating to this transaction, each of Buyer and Seller shall deliver to the other party a copy
of its Form 8594.
2.5 Inventory. Following the Closing upon reasonable notice to Seller, Buyer shall be
entitled to review Seller’s Inventory and Seller’s records with respect thereto and may reject and
elect not to purchase any such Inventory that, in Buyer’s reasonable good faith determination, is
of a quality or quantity that is not usable or, with respect to finished goods, saleable, in the
Ordinary Course of Business (all such inventory, “Rejected Inventory”). Prior to and in
connection with the Inventory Count conducted pursuant hereto, Buyer and Seller shall cooperate in
seeking to identify all Rejected Inventory. On or prior to June 30, 2007 (the “Inventory
Date”), Seller and Buyer shall, in accordance with Schedule 2.5 hereto, conduct (or
cause to be conducted) a physical count (the “Inventory Count”) of the Inventory. At least
two (2) business days prior to
the Inventory Date, Seller shall deliver to Buyer an inventory list of the Inventory
reflecting each item of Inventory and the inventory count for such item according to Seller’s
inventory records. The “Inventory Payment” shall be equal to the aggregate inventory value
of the Inventory determined pursuant to the Inventory Count where such Inventory is valued as set
forth on Schedule 2.5. Buyer shall pay Seller the Inventory Payment in cash by wire
transfer no later than the second (2nd) business day following the Inventory Date
(subject, in the event of a dispute over the Inventory Payment, to the last sentence of this
Section 2.5, the “Inventory Payment Date”). If Seller and Buyer are not able to
agree upon the Inventory Payment or the valuation or count for any item of Inventory in accordance
with Schedule 2.5, then Buyer shall immediately pay Seller the undisputed amount thereof,
and the disputed amount (the “Disputed Inventory Payment”) shall be referred to Xxxxx
Xxxxxxxx LLP or another mutually agreeable audit partner (the “Inventory Auditor”).
Within ten (10) business days following the Inventory Payment Date, the Inventory Auditor shall
deliver to Seller and Buyer its report with respect to the determination of the Disputed Inventory
Amount (the “Verification Statement”). The Verification Statement shall be final and
binding on the parties hereto unless Seller or Buyer, within ten (10) business days of its receipt
thereof, gives written notice to the
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other specifying in reasonable detail its objections thereto
(the “Objection Notice”). Seller and Buyer will negotiate in good faith the resolution of
the matters set forth in the Objection Notice for a period of ten (10) business days. If Seller
and Buyer are unable to reach an agreement during such period, then Seller and Buyer shall submit
such matters to arbitration for final resolution. The fees and expenses of the Inventory Auditor,
or any other arbitrator, shall be borne equally by Buyer and Seller. Buyer shall pay Seller the
final determination of the Disputed Inventory Amount within two (2) business days following such
final determination, by wire transfer, together with interest thereon from and after the Closing
Date at the rate equal to the prime rate of Bank of America, N.A. as announced from time to time
during the period following the Closing Date through the date of such payment (with the due date
for such payment being deemed the “Inventory Payment Date” for purposes hereof).
ARTICLE III.
CLOSING
CLOSING
3.1 Closing. The closing of the transactions contemplated hereby (the
“Closing”) shall be held at the offices of Xxxxxx & Xxxxxxx LLP, 00000 Xxxx Xxxxx Xxxxx,
Xxxxx 000, Xxx Xxxxx, XX 00000 effective as of 11:59 p.m. PST on December 29, 2006 (the
“Closing Date”).
3.2 Closing Transactions. Upon the terms and subject to the conditions set forth in
this Agreement, following execution of this Agreement and simultaneously with the Closing:
(a) To effect the sale and transfer referred to in Section 2.1(a), Seller shall
execute and deliver or cause to be executed and delivered to Buyer:
(i) a Xxxx of Sale in the form of Exhibit C attached hereto, conveying all of
Seller’s owned personal property included in the Engineering Equipment; and
(ii) an Assignment of Contracts in the form of Exhibit D attached hereto, to
the extent necessary to assign all Contracts listed as Service Agreements on Schedule
1.1A and all Contracts (if any) included in the Engineering Equipment.
(b) To effect the assumption of Liabilities by Buyer referred to in Section 2.2, Buyer
shall execute and deliver to Seller an Assumption of Liabilities in the form of Exhibit E
attached hereto, evidencing Buyer’s assumption of the Assumed Liabilities.
(c) Buyer shall deliver the Closing Payment to Seller in accordance with Section
2.3(a).
(d) Buyer and Seller shall execute and deliver the License Agreement.
(e) Buyer and Seller shall execute and deliver the Adaptation of Reseller Agreement between
the parties in the form of Exhibit F attached hereto.
(f) Seller shall file (where necessary) all documents necessary to release the Purchased
Assets from all Encumbrances.
(g) Buyer shall deliver to Seller the certificate described in Section 7.1.
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(h) Seller shall deliver to Buyer the certificate described in Section 8.1.
3.3 IP Closing. To effect the sale and transfer referred to in Section
2.1(b), on the IP Payment Date, conditioned upon Seller’s receipt of the IP Payment, Seller
shall execute and deliver to Buyer the IP Assignment Agreement.
3.4 Inventory Closing. To effect the sale and transfer referred to in Section
2.1(c), on the Inventory Payment Date, conditioned upon Seller’s receipt of the Inventory
Payment, Seller shall execute and deliver to Buyer (a) a Xxxx of Sale in the form of Exhibit
C, conveying all of Seller’s owned personal property included in the Manufacturing Equipment
and Inventory, and (b) an Assignment of Contracts in the form of Exhibit D, to the extent
necessary to assign all Contracts included in the Manufacturing Equipment and Inventory.
3.5 Form of Instruments. To the extent that a form of any document to be delivered
hereunder is not attached as an exhibit hereto, such documents shall be in form and substance, and
shall be executed and delivered in a manner, reasonably satisfactory to Buyer and Seller.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF SELLER
REPRESENTATIONS AND WARRANTIES OF SELLER
4.1 Making of Representations and Warranties. As a material inducement to Buyer to
enter into this Agreement and consummate the transactions contemplated hereby, Seller hereby makes
to Buyer the representations and warranties contained in this Article IV.
4.2 Organization of Seller. Seller is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware.
4.3 Authority of Seller. Seller has the power and authority to enter into this
Agreement and each agreement, document and instrument to be executed and delivered by Seller
pursuant to this Agreement and to carry out the transactions contemplated hereby or thereby. The
execution, delivery and performance by Seller of this Agreement and each such other agreement,
document and instrument to which Seller is a party have been duly authorized by all necessary
action of Seller, and no other action on the part of Seller is required in connection therewith.
This Agreement and each agreement, document and instrument executed and delivered by Seller
pursuant to this Agreement constitute, or when executed and delivered will constitute, valid and
binding obligations of Seller enforceable against Seller in accordance with their terms, subject to
the effect of any applicable bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors’ rights generally and subject to the effect of general principles of equity,
including, without limitation, the possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in equity or at law. Except as set forth
on Schedule 4.3, the execution, delivery and performance by Seller of this Agreement and
each such agreement, document and instrument to which Seller is a party:
(a) do not and will not violate any provision of Seller’s Certificate of Incorporation or
Bylaws, each as amended to date;
(b) do not and will not violate any laws of the United States, or any state or other
jurisdiction applicable to Seller or require Seller to obtain any approval, consent or waiver
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of,
or make any filing with, any person or entity (governmental or otherwise) that has not been
obtained or made or otherwise expressly set forth in this Agreement, except where such violation,
or failure to obtain such approval, consent or waiver, or to make such filing, would not have a
Material Adverse Effect; and
(c) do not and will not result in a breach of, constitute a default under, accelerate any
obligation under, give Seller or any other person the right to exercise any remedy under, or give
rise to a right of termination, modification or cancellation of any Contract to which Seller is a
party or by which the Purchased Assets are bound or affected, or result in the creation or
imposition of any Encumbrance on any of the Purchased Assets, except where such
breach, default, acceleration or exercise of right of termination would not have a Material
Adverse Effect.
4.4 Title to Assets. Except as set forth on Schedule 4.4, Seller has and will
transfer to Buyer good and marketable title to the Purchased Assets, and upon the consummation of
the transactions contemplated hereby, Buyer will acquire good and marketable title to the Purchased
Assets, free and clear of any Encumbrances.
4.5 Sufficiency of Assets. Except as set forth on Schedule 4.5, the Purchased
Assets (together with the Retained IP) constitute all of the assets, tangible and intangible, of
any nature whatsoever, necessary to operate the Business in the manner currently operated by
Seller. The Manufacturing Equipment constitutes all of the assets necessary to test and
manufacture the iMarc product line and the 7123 TI CSU/DSU product line.
4.6 Inventory. All items included in the Inventory are free of defects and consist of
a quality and quantity usable and, with respect to finished goods, saleable, in the Ordinary Course
of Business, except where such defects or lack of quality or quantity would not have a Material
Adverse Effect. Seller is not in possession of any Inventory not owned by Seller, including
Inventory held on consignment or goods already sold.
4.7 Contracts.
(a) (i) All of the Contracts are valid and in full force and effect and have not been modified
or amended except as set forth therein, (ii) Seller has performed all obligations imposed on it
thereunder, and (iii) there are not, under any of such Contracts, any defaults or events of default
on the part of Seller or, to Seller’s Knowledge, any other party thereto, except in the case of
clauses (ii) and (iii) as would not have a Material Adverse Effect.
(b) With respect to the Contracts, Seller has not received written notice nor has Knowledge
that any party to any such Contract intends to cancel, terminate, refuse to renew or materially
reduce its commitment under such Contract or to exercise or decline to exercise any option under
any Contract or right thereunder.
4.8 Intellectual Property.
(a) Except as set forth on Schedule 4.8, Seller owns all right, title and interest in
and to, or is licensed or otherwise possesses a valid and enforceable right to use, all of the
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Intellectual Property, and no Action to the contrary by any other person to the rights of Seller
with respect to the foregoing is pending or, to Seller’s Knowledge, threatened in writing.
(b) To Seller’s Knowledge, there is no unauthorized use, disclosure, infringement or
misappropriation of any Intellectual Property by any third party, or any third-
party Intellectual Property Rights by Seller, in each case relating to the operation of the
Business, other than any such unauthorized use, disclosure, infringement or misappropriation that
would not have a Material Adverse Effect.
(c) Schedule 4.8 lists (i) all patents and patent applications and all registered
trademarks, service marks and copyrights contained in the Transferred IP, the jurisdictions in
which each such Intellectual Property Right has been issued or registered or in which any
application for such issuance and registration has been filed, and the nature and extent of the
ownership interest or other right held by Seller in each such Intellectual Property Right; and (ii)
any Action pending as of the date hereof before any governmental entity related to any of the
Transferred IP. Except as set forth on Schedule 4.8, Seller owns exclusively all
Transferred IP.
4.9 Litigation. Except as set forth on Schedule 4.9, Seller is not a party to
any pending, or to Seller’s Knowledge, threatened Action that relates to the Business nor to
Seller’s Knowledge are there any facts or circumstances that would reasonably be expected to result
in Seller being a party to any Action which would have a Material Adverse Effect.
4.10 Compliance with Laws. Seller is in compliance with all applicable Regulations
and Court Orders promulgated by any federal, state or local court or governmental authority that
apply to Seller in respect of the Business, except where such noncompliance would not have a
Material Adverse Effect.
4.11 Finder’s Fee. Seller has no liability or obligation to pay any fees or
commissions to any broker, finder or agent with respect to the transactions contemplated by this
Agreement for which Buyer could become liable or obligated.
4.12 Sales Information. Seller has provided Buyer with sales and margin data for
products within the Business by customer and part number for the period from January 1, 2006
through September 30, 2006. Such sales and margin data are accurate in all material respects.
4.13 Product Warranties. Seller has provided Buyer with (a) copies of all unexpired
product warranties issued by Seller for products of the Business and (b) summaries of warranty
claims made with respect to products sold by Seller in the Business since January 1, 2006. Such
copies of warranties and summaries of warranty claims are accurate in all material respects.
Except as set forth on Schedule 4.13, Seller has not experienced any Epidemic Failure and
has not been subject to any pending or, to Seller’s Knowledge, threatened product liability claims.
4.14 Conduct of the Business. Since September 30, 2006, Seller has conducted the Business in the Ordinary Course of
Business.
4.15 No Implied Warranties. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT NO
REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED,
HAS BEEN MADE OR
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RELIED UPON BY ANY PARTY HERETO OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS
AGREEMENT, INCLUDING THE EXHIBITS AND SCHEDULES HERETO. SELLER SPECIFICALLY DISCLAIMS ANY AND ALL
IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF BUYER
REPRESENTATIONS AND WARRANTIES OF BUYER
5.1 Making of Representations and Warranties. As a material inducement to Seller to
enter into this Agreement and consummate the transactions contemplated hereby, Buyer hereby makes
the representations and warranties to Seller contained in this Article V.
5.2 Organization of Buyer. Buyer is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Minnesota.
5.3 Authority of Buyer. Buyer has the power and authority to enter into this
Agreement and each agreement, document and instrument to be executed and delivered by Buyer
pursuant to this Agreement and to carry out the transactions contemplated hereby or thereby. The
execution, delivery and performance by Buyer of this Agreement and each such other agreement,
document and instrument to which Buyer is a party have been duly authorized by all necessary action
of Buyer, and no other action on the part of Buyer is required in connection therewith. This
Agreement and each agreement, document and instrument executed and delivered by Buyer pursuant to
this Agreement constitute, or when executed and delivered will constitute, valid and binding
obligations of Buyer enforceable against Buyer in accordance with their terms, subject to the
effect of any applicable bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors’ rights generally and subject to the effect of general principles of equity,
including, without limitation, the possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in equity or at law. The execution,
delivery and performance by Buyer of this Agreement and each such agreement, document and
instrument:
(a) do not and will not violate any provision of Buyer’s Articles of Incorporation or Bylaws,
each as amended to date;
(b) do not and will not violate any laws of the United States, or any state or other
jurisdiction applicable to Buyer or require Buyer to obtain any approval, consent or waiver of, or
make any filing with, any person or entity (governmental or otherwise) that has not been obtained
or made or otherwise expressly set forth in this Agreement, except where such violation, or failure
to obtain such approval, consent or waiver, or to make such filing, would not have a Material
Adverse Effect; and
(c) except as set forth on Schedule 5.3(c), do not and will not result in a breach of,
constitute a default under, accelerate any obligation under, give Buyer or any other person the
right to exercise any remedy under, or give rise to a right of termination, modification or
cancellation of any contract to which Buyer is a party or by which the property of Buyer is bound
or affected, or result in the creation or imposition of any Encumbrance on any of Buyer’s
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assets,
except where such breach, default, acceleration or exercise of right of termination would not have
a Material Adverse Effect.
5.4 Finder’s Fee. Buyer has no liability or obligation to pay any fees or commissions
to any broker, finder or agent with respect to the transactions contemplated by this Agreement for
which Seller could become liable or obligated.
5.5 Acknowledgements. Buyer acknowledges that (a) Seller has made no representation
or warranty, written or oral, statutory, express or implied, as to the accuracy or completeness of
any information regarding Seller, the Business or the Purchased Assets, not included in this
Agreement (including the exhibits and schedules hereto), and (b) except as expressly set forth in
this Agreement, the Purchased Assets are being sold to Buyer on an “as is, where is” basis.
ARTICLE VI.
COVENANTS
COVENANTS
6.1 Further Assurances. Upon the terms and subject to the conditions contained
herein, Buyer and Seller shall, both before and after the Closing, (a) use all reasonable efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary,
proper or advisable to consummate and make effective the transactions contemplated by this
Agreement, (b) execute any documents, instruments or conveyances of any kind that may be reasonably
necessary or advisable to carry out any of the transactions contemplated hereunder, and (c)
cooperate with each other in connection with the foregoing.
6.2 Conduct of Business. Except as otherwise contemplated by the terms of this
Agreement, between the date of this Agreement and the Closing Date, Seller shall:
(a) Use all reasonable efforts to protect, maintain in good operating condition and repair
(normal wear and tear excepted) and preserve its ownership of the Purchased Assets;
(b) Not enter into, materially modify, terminate or renew any Contract included in the
Purchased Assets, except in the Ordinary Course of Business;
(c) Not sell, assign, transfer, convey, lease, mortgage, pledge or otherwise dispose of or
encumber any of the Purchased Assets, except for Inventory in the Ordinary Course of Business;
(d) Not incur any Liability relating to the Business that will constitute an Assumed
Liability, except in the Ordinary Course of Business;
(e) Use all reasonable efforts to preserve the goodwill of all suppliers, customers,
independent contractors and others having business relations with the Business; and
(f) Permit Buyer and its authorized Representatives during normal business hours to have
access to all of the Books and Records, Contracts and documents relating to the Business and
furnish to Buyer or its authorized Representatives such financial and other information with
respect to the Business as Buyer may from time to time reasonably request.
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6.3 No Solicitation of Other Offers. Neither Seller nor any of its Representatives
shall, directly or indirectly, solicit, encourage, assist, initiate discussions or engage in
negotiations with, provide any information concerning the operations, properties or assets of the
Business, or enter into any agreement or transaction with, any person, other than Buyer, relating
to the possible acquisition of the Business or all or substantially all of the Purchased Assets,
except for the sale of Inventory in the Ordinary Course of Business.
6.4 Notification of Certain Matters. From the date hereof through the Closing, Buyer
and Seller shall give prompt notice to the other of (a) the occurrence, or failure to occur, of any
event which occurrence or failure to occur would be reasonably likely to cause any representation
or warranty contained in this Agreement or in any exhibit or schedule hereto to be untrue or
inaccurate in any material respect and (b) any failure of such party, or any of its respective
Representatives, to comply with or satisfy any covenant, condition or agreement to be complied with
or satisfied by it under this Agreement or any exhibit or schedule hereto; provided,
however, that such disclosure shall not be deemed to cure any breach of a representation,
warranty, covenant or agreement or to satisfy any condition.
6.5 Preservation of Confidentiality.
(a) In connection with the negotiation of this Agreement and the preparation for the
consummation of the transactions contemplated hereby, the parties acknowledge that each has had
access to information relating to the other party that is either non-public, confidential or
proprietary in nature. Such information, together with all analyses, compilations, data, studies
or other documents prepared by the parties or any of their respective Representatives containing
or based in whole or in part on any such furnished information or reflecting Buyer’s review of, or
interest in, Seller is hereinafter referred to as “Confidential Information.”
(b) Subject to the requirements of applicable law or any order of a governmental authority,
each party hereby agrees to (i) treat the Confidential Information of the other party as
confidential and use the same standard of care in handling such information as it uses with respect
to its own confidential information, but in no event less than a reasonable standard of care, (ii)
use such Confidential Information solely in connection with the consummation of the transactions
contemplated by this Agreement and (iii) transmit such Confidential Information only to its
Representatives who in its reasonable opinion need to know such Confidential Information.
ARTICLE VII.
CONDITIONS TO SELLER’S OBLIGATIONS
CONDITIONS TO SELLER’S OBLIGATIONS
The obligations of Seller to consummate the transactions contemplated hereby are subject, in
the discretion of Seller, to the satisfaction, on or prior to the Closing Date, of each of the
following conditions, any of which may be waived in writing by Seller:
7.1 Representations, Warranties and Covenants. All representations and warranties of
Buyer contained in this Agreement shall be true and correct in all material respects at and as of
the date of this Agreement and at and as of the Closing Date, except as and to the extent that the
facts and conditions upon which such representations and warranties are based are expressly
14
required or permitted to be changed by the terms hereof, and Buyer shall have performed and
satisfied in all material respects all agreements and covenants required hereby to be performed by
it prior to or on the Closing Date. Buyer shall have delivered a certificate to Seller to the
effect that each of the conditions set forth in this Section 7.1 is satisfied in all
respects.
7.2 No Actions or Court Orders. No Action by any governmental authority or other
person shall have been instituted or threatened that questions the validity or legality of the
transactions contemplated hereby and that could reasonably be expected to materially damage Seller
if the transactions contemplated hereunder are consummated. There shall not be any Regulation or
Court Order that makes the purchase and sale of the Business or the Purchased Assets contemplated
hereby illegal or otherwise prohibited.
7.3 No Material Adverse Change. Since September 30, 2006, there shall not have been
any change in the assets, Liabilities or operations of Buyer that would have a Material Adverse
Effect.
7.4 Consents. Buyer shall have obtained the third-party consents, approvals or authorizations set forth
on Schedule 5.3(c) (the “Buyer Required Consents”).
ARTICLE VIII.
CONDITIONS TO BUYER’S OBLIGATIONS
CONDITIONS TO BUYER’S OBLIGATIONS
The obligations of Buyer to consummate the transactions contemplated hereby are subject, in
the discretion of Buyer, to the satisfaction, on or prior to the Closing Date, of each of the
following conditions, any of which may be waived in writing by Buyer:
8.1 Representations, Warranties and Covenants. All representations and warranties of
Seller contained in this Agreement shall be true and correct in all material respects at and as of
the date of this Agreement and at and as of the Closing Date, except as and to the extent that the
facts and conditions upon which such representations and warranties are based are expressly
required or permitted to be changed by the terms hereof, and Seller shall have performed and
satisfied in all material respects all agreements and covenants required hereby to be performed by
it prior to or on the Closing Date. Seller shall have delivered a certificate to Buyer to the
effect that each of the conditions set forth in this Section 8.1 is satisfied in all
respects.
8.2 No Actions or Court Orders. No Action by any governmental authority or other
person shall have been instituted or threatened that questions the validity or legality of the
transactions contemplated hereby and that could reasonably be expected to materially damage Buyer,
the Purchased Assets or the Business if the transactions contemplated hereunder are consummated.
There shall not be any Regulation or Court Order that makes the purchase and sale of the Business
or the Purchased Assets contemplated hereby illegal or otherwise prohibited.
8.3 No Material Adverse Change. Since September 30, 2006, there shall not have been
any change in the Business or the Purchased Assets that would have a Material Adverse Effect.
8.4 Consents. Seller shall have obtained the third-party consents, approvals or
authorizations set forth on Schedule 4.3, except where the failure to do so would not have
a Material Adverse Effect on the Business or the Purchased Assets; provided,
however, that, in all
15
events, Seller shall have obtained those third-party consents,
approvals or authorizations set forth on Schedule 8.4 (the “Seller Required
Consents”).
ARTICLE IX.
RIGHTS AND OBLIGATIONS SUBSEQUENT TO CLOSING
RIGHTS AND OBLIGATIONS SUBSEQUENT TO CLOSING
9.1 Survival.
(a) All representations, warranties, covenants and obligations in this Agreement and each such
agreement, document and instrument to which Buyer or Seller is a party, the Disclosure Letter, the
certificates delivered pursuant to Sections 7.1 and 8.1 and any other certificate
or document delivered pursuant to this Agreement shall survive the Closing Date for a period of
(and claims based upon or arising out of such representations, warranties, covenants and
obligations may only be asserted before the date which is) fifteen (15) months after the Closing
Date; provided that any covenants or obligations which by their terms expressly contemplate
performance beyond such period shall survive for the remainder of the contemplated performance
period; provided further that any limitations on survival shall not apply to
Assumed Liabilities or Excluded Liabilities, which shall be indefinitely retained by Buyer or
Seller, respectively (subject to Section 9.1(c)). The waiver of any condition based upon
the accuracy of any representation or warranty, or on the performance of or compliance with any
covenant or obligation, will not affect any remedy based upon such representations, warranties,
covenants and obligations.
(b) In no event shall the liability of any party hereunder, arising out of the breach of any
representation, warranty, covenant or obligation, or otherwise, exceed the Purchase Price. In
addition, each party agrees to indemnify and hold harmless the other party for any loss, Liability,
claim, damage, expense (including reasonable costs of investigation and defense and reasonable
attorneys’ fees and expenses), whether or not involving a third-party claim (collectively,
“Damages”), arising from or in connection with any breach of any (i) representation or
warranty made by the other party or (ii) covenant or obligation of the other party, in each case in
this Agreement and each such agreement, document and instrument to which Buyer or Seller is a
party, the Disclosure Letter, the certificates delivered pursuant to Sections 7.1 and
8.1 and any other certificate or document delivered pursuant to this Agreement. No party
shall be entitled to recover for any Damages until such time as the total for all Damages incurred
by such party in the aggregate exceeds $25,000 (the “Liability Threshold”), at which time
the non-breaching party shall be entitled to seek recovery for all such Damages in excess of the
Liability Threshold; provided that (i) to the extent any representation, warranty, covenant
or obligation is qualified by materiality or “Material Adverse Effect,” such qualifications shall
be disregarded for purposes of determining the amount of Damages but shall apply for purposes of
determining whether a breach of such representation, warranty, covenant or obligation has occurred;
and (ii) subject to Section 9.1(c), the Liability Threshold and cap on indemnification
shall not apply to Assumed Liabilities or Excluded Liabilities. Any Liabilities shall be net of
any insurance recovery by the non-breaching party. Zhone guarantees the due and punctual
performance of Seller’s obligations under this Section 9.1(b).
(c) Notwithstanding the foregoing, in the case of an Unknown Assumed Liability, such Unknown
Assumed Liability shall remain the sole responsibility of Buyer,
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provided that, Seller
shall cooperate in all reasonable respects with Buyer’s efforts to resolve such Unknown Assumed
Liability following the Closing, provided that Buyer shall have given Seller notice thereof prior
to the date which is fifteen (15) months after the Closing Date. In
addition, if Buyer both: (i) notifies Seller of an Action resulting from such Unknown Assumed
Liability promptly after receipt of notice thereof by Buyer (except where the failure to so
promptly notify Seller would not prejudice Seller’s rights hereunder); and (ii) provides Seller
and/or Zhone with the opportunity (but not the obligation) to participate, at Seller’s sole cost
and expense, in the defense and settlement of such Action, then any Damages awarded against Buyer
by a court of competent jurisdiction directly as a result of the Unknown Assumed Liability, or
Damages which are otherwise to be paid by Buyer pursuant to a settlement with such third party as a
result of the Unknown Assumed Liability shall be paid as follows: (i) Buyer shall be solely
responsible for the first $500,000 of Damages in the aggregate; (ii) Buyer and Seller shall share
equally any Damages aggregating in excess of $500,000 up to a maximum amount of $2,500,000 in the
aggregate; and (iii) Buyer shall be solely responsible for any Damages in excess of $2,500,000 in
the aggregate. For purposes of clarification, Seller’s maximum liability under this Section
9.1(c) shall equal $1,000,000 (50% x ($2,500,000 — $500,000)). Any payments by Seller under
this Section 9.1(c) shall be applied toward its maximum liability under Section
9.1(b), such that in no event shall the total of all payments by Seller under Sections
9.1(b) and 9.1(c) exceed the Purchase Price. Notwithstanding anything herein to the
contrary, (1) Buyer may settle or resolve any such Unknown Assumed Liability in its sole and
absolute discretion provided that Seller is not responsible for any of the Damages arising
therefrom under this Section 9.1(c); and (2) if Seller is responsible for any of the
Damages arising from any such Unknown Assumed Liability under this Section 9.1(c), then
Seller shall not be liable for any settlement of any Action effected with respect to such Unknown
Assumed Liability without Seller’s written consent which consent shall not be unreasonably denied,
withheld or delayed. If such Damages result from a breach by Seller of any representation,
warranty, covenant or obligation, such that Buyer would be entitled to indemnification under
Section 9.1(b) with respect thereto, then Section 9.1(b) shall apply in lieu of
this Section 9.1(c). Zhone guarantees the due and punctual performance of Seller’s
obligations under this Section 9.1(c).
9.2 Consents to Assignment. Anything in this Agreement to the contrary
notwithstanding, this Agreement shall not constitute an agreement to assign any Contract or any
benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the
consent of a third party thereto, would constitute a default thereof or in any way materially
adversely affect the rights or obligations of Buyer thereunder. With respect to any such Contract,
Seller shall use all reasonable efforts, with Buyer’s reasonable cooperation, to obtain the consent
of the other parties to such Contract for the assignment thereof to Buyer, or confirmation from
such parties that such consent is not required. If such consent is not obtained, or if an
attempted assignment thereof would be ineffective or would affect the rights thereunder so that
Buyer would not receive all such rights, then Seller shall cooperate with Buyer, in all reasonable
respects, to provide to Buyer the benefits under any such Contract, it being understood, however,
that (a) nothing in this Section 9.2 shall be deemed to satisfy the condition in
Section 8.4 with respect to the Seller Required Consents, and (b) Seller shall not be
required to make any payments or agree to any material undertakings in connection with its
obligations in this Section 9.2.
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9.3 Books and Records; Tax Matters; Liabilities.
(a) Books and Records. Each party shall cooperate with and make available to the
other party, during normal business hours, all Books and Records, information and employees
(without substantial disruption of employment) retained and remaining in existence after the
Closing that are necessary or useful in connection with any tax inquiry, audit, investigation or
dispute, any litigation or investigation or any other matter requiring any such Books and Records,
information or employees for any reasonable business purpose. The party requesting any such Books
and Records, information or employees shall bear all of the out-of-pocket costs and expenses
(including, without limitation, attorneys’ fees, but excluding reimbursement for employee salaries
and benefits) reasonably incurred in connection with providing such Books and Records, information
or employees.
(b) Tax Matters. The parties shall (i) each provide the other with such assistance as
may reasonably be requested by either of them in connection with the preparation of any tax return,
audit or other examination by any taxing authority or judicial or administrative proceedings
relating to Liability for taxes, (ii) each retain and provide the other with any records or other
information that may be relevant to such tax return, audit or examination, proceeding or
determination, and (iii) each provide the other with any final determination of any such audit or
examination, proceeding or determination that affects any amount required to be shown on any tax
return of the other for any period. Without limiting the generality of the foregoing, the parties
shall each retain, until the applicable statutes of limitation (including any extensions) have
expired, copies of all tax returns, supporting work schedules and other records or information that
may be relevant to such tax returns for all tax periods or portions thereof ending on or before the
Closing Date and shall not destroy or otherwise dispose of any such records without first providing
the other party with a reasonable opportunity to review and copy the same.
(c) Liabilities. Following the Closing, Buyer shall pay or perform, or cause to be
paid or performed, when due all of the Liabilities of Seller that constitute Assumed Liabilities,
and shall hold Seller harmless from same. Seller shall hold Buyer harmless from any Liabilities of
Seller that constitute Excluded Liabilities.
9.4 Employee Matters.
(a) At the Closing, Buyer shall offer employment to Xxxxxx Xxxxxx and Xxxxxxx Xxxxxxxxx (the
“Business Employees”) at substantially the same level of responsibility and at substantially the
same level of salary and other benefits as such Business Employees have immediately prior to the
Closing. Seller agrees that if a Business Employee voluntary terminates his employment with Buyer
prior to the Inventory Payment Date (other than at the recommendation of Buyer or due to Buyer’s
failure to comply with its obligations under the first sentence of this Section 9.4(a)), Buyer
shall be entitled to a pro rata credit against the Inventory Payment which shall be equal to the
amount of the severance, accrued vacation and accrued personal time paid by Buyer to such Business
Employee pursuant to Schedule 2.2(c) multiplied by a fraction, the numerator of which will be 180
minus the number of days in which he was an employee of Buyer, and the denominator of which shall
be 180 days.
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(b) At the Closing, to the extent any Business Employee accepts employment with Buyer, Buyer
shall enroll such Business Employee in the Buyer plans, programs, policies, practices, agreements
or other arrangements providing for employment, compensation, retirement, deferred compensation,
severance, separation, termination pay, bonus, incentive, stock option, stock purchase, fringe
benefits, cafeteria benefits or other benefits, whether written or unwritten, including each
“employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (the “Buyer Employee Plans”), to the extent applicable,
which are provided to similarly situated employees of Buyer based on levels of responsibility.
Buyer shall use commercially reasonable efforts to cause any pre-existing conditions or limitations
and eligibility waiting periods under any group health plans of Buyer to be waived with respect to
the Business Employees and their eligible dependents, giving each Business Employee credit for the
plan year towards applicable deductibles and annual out-of-pocket limits for medical expenses
incurred during such plan year for which payment has been made, and giving the Business Employees
service credit for their employment with Seller for eligibility and vesting purposes under any such
applicable Buyer Employee Plan, as if such service had been performed with Buyer.
9.5 Covenant Not to Compete. For a period from the Closing Date to the earlier of
either: (i) two (2) years from the Closing Date; or (ii) Buyer’s failure to pay the Inventory
Payment (less any amount remaining under dispute in good faith) if it is not paid by the thirtieth
(30th) day following the Inventory Payment Date (the earlier of (i) and (ii), the
“Noncompete Period”), without the prior written consent of Buyer, neither Zhone nor Seller
shall (and shall cause each of its respective controlled affiliates not to) (collectively, the
“Noncompete Parties”), on a worldwide basis, directly or indirectly, own, manage, operate
or control any business or entity that engages in the design, manufacture or marketing of (a) any
products or services provided by the Business as of the Closing Date or (b) any products or
services substantially equivalent in form, fit and function to such products or services of the
Business (“Competitive Business”); provided, however, that the foregoing
covenants shall not prohibit, or be interpreted as prohibiting, any of the Noncompete Parties from:
(a) Continuing anywhere in the world any of the following business activities conducted by any
Noncompete Party on the date hereof: the design, manufacture or marketing of the SLMS product
lines;
(b) Marketing any competitive products or services (whether obtained from Buyer or any other
business or entity) which constitute part of an overall system designed or manufactured by any
Noncompete Party;
(c) Making equity investments in any publicly-owned companies that conduct a Competitive
Business, provided such investments do not confer more than a 10% equity interest in any such
companies;
(d) Acquiring any business or entity that conducts a Competitive Business if in the calendar
year prior to such acquisition, the revenues of such business or entity from its Competitive
Business do not constitute more than 50% of the total revenues of such business or
entity; provided that if Seller acquires rights to any service level management
product lines after
19
the Closing Date, Buyer shall have a reasonable right of first refusal on such
product lines in the event Seller seeks to dispose of such product lines during the Noncompete
Period; or
(e) Designing, manufacturing, marketing, distributing and/or selling products or services on
behalf of or otherwise at the request of Buyer (e.g., pursuant to a manufacturing agreement with
Buyer).
9.6 Transition Services.
(a) Duration and Scope. Between the Closing Date and March 31, 2007 (the
“Transition Services Period”), Seller shall use reasonable efforts to provide Buyer with
telecommunications, IT consulting and other services relating to the Business as set forth on
Schedule 9.6 (the “Transition Services”).
(b) Service Coordinators. Buyer and Seller shall each nominate a Representative to
act as the primary contact person with respect to the provision of the Transition Services. The
initial service coordinator for Buyer shall be Xxxxx Xxxxxxx, and the initial service coordinator
for Seller shall be Xxxxx Xxxxxxx.
(c) Quality. The Transition Services shall be performed in a professional and
workmanlike manner consistent with the quality of service generally provided by Seller prior to the
Closing.
(d) Limitation of Liability. BUYER AGREES THAT SELLER SHALL NOT BE LIABLE TO BUYER
FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES IN CONNECTION
WITH THE TRANSITION SERVICES.
(e) Personnel. Seller shall make available to Buyer two engineers for the provision
of the Transition Services during the Transition Services Period. Seller shall be the sole
employer of the persons providing the Transition Services. In that regard, Seller has the ultimate
decision to hire, maintain or terminate any employee providing such services. If Buyer desires to
hire any employee of Seller, it shall first confer with Seller and receive Seller’s prior written
approval in order to ensure that Seller has adequate remaining personnel to provide the Transition
Services without the need for additional training.
(f) Facilities. Seller shall provide the Transition Services at such location as
Seller deems reasonable and appropriate. If Seller determines to provide any portion of the
Transition Services at Buyer’s facilities, Buyer shall make available relevant portions of its
facilities, including, without limitation, office space and its telecommunications and computer
systems to the extent reasonably requested or necessary to provide the Transition Services.
(g) Costs and Expenses. Each party shall bear its own costs and expenses related to
its obligations under the Transition Services, including, without limitation, the payment of any
employees or consultants providing any services with respect thereto.
9.7 Use of Paradyne Marks. Neither Buyer nor any of its affiliates shall have the right to use any names, marks, trade
names, trademarks or service marks incorporating “Paradyne” by
20
itself or in combination with any
other name, including, without limitation, any corporate design logos associated with “Paradyne” or
“Paradyne Networks” (together, the “Paradyne Marks”), and none of the rights thereto or
goodwill represented thereby or pertaining thereto are being transferred hereby or in connection
herewith but instead are expressly retained by Seller. Notwithstanding the foregoing, for a period
of six (6) months after the Closing Date, Buyer shall have a royalty free, non-exclusive, limited
license under Seller’s rights in the Paradyne Marks to market, promote, distribute and sell-off
existing Inventory which is currently labeled, packaged or otherwise branded with one or more
Paradyne Marks. Seller’s rights hereunder to use the Paradyne Marks shall extend to any Paradyne
software or documentation which is distributed in conjunction with such Inventory in the same
manner as distributed by Seller prior to the Closing. If any of the Inventory described above
remains unsold after expiration of the six (6) month period, then Seller shall agree to a
reasonable extension of the license period to enable Buyer to sell such remaining Inventory. Any
and all goodwill generated by or otherwise associated with Buyer’s use of the Paradyne Marks shall
inure to the benefit of Seller. Furthermore, if at any xxxx Xxxxxx reasonably believes that Buyer
is utilizing the Paradyne Marks in any manner not consistent with this license or in a manner that
would tarnish or otherwise dilute the Paradyne Marks and/or Seller’s goodwill therein and Seller
does not discontinue such offending behavior within ten (10) business days after receipt of notice
thereof, then Seller shall have the right to terminate this license immediately upon notice to
Buyer.
9.8 Audited Financial Statements of Business. If Buyer determines, in its sole good faith
judgment, that it is required to file with the Securities and Exchange Commission (the “SEC”)
audited year-end financial statements and unaudited interim financial statements for the Business
and the Purchased Assets, in each case prepared in accordance with Regulation S-X promulgated by
the SEC, in order for Buyer to comply with its obligations under the Securities Act of 1933, as
amended, or the Securities Exchange Act of 1934, as amended, with respect to the transaction
contemplated hereby (the “Required Financial Statements”), then Buyer may, at it sole cost and
expense, cause to be prepared the Required Financial Statements for such periods as Buyer may
determine, and Seller shall (i) cooperate with Buyer and the auditor selected by Buyer to audit any
such Required Financial Statements to give Buyer and such auditor reasonable access to Seller’s
financial records, files, personnel and advisors as may be reasonably necessary to permit Buyer’s
preparation of such Required Financial Statement and to permit such auditor to perform its audit
and issue its audit report in respect thereof; and (ii) use its commercially reasonable efforts to
cause its personnel and advisors to cooperate with Buyer and such auditor regarding the matters
addressed herein.
9.9 Use of Excluded Assets and Agreements. If, despite making reasonable commercial
efforts to do so, Buyer is not able to obtain replacements for any of Seller’s assets listed on
Schedule 4.5 or secure any rights currently enjoyed by Seller under any of the Excluded Agreements
listed on Schedule 1.2 necessary to operate the Business in the manner currently operated by
Seller, then Seller shall use commercially reasonable efforts to provide to Buyer access to each
such asset and the
benefits of each such Excluded Agreement to enable Buyer to operate the Business in the manner
currently operated by Seller until the earlier of (i) such time as it becomes commercially feasible
for Buyer to obtain a replacement for such asset or Excluded Agreement or (ii) September 30, 2007,
if the replacement of such asset or right becomes commercially available (whether or not
cost-prohibitive) prior to such date, provided
21
that Seller shall not be required to make
any payments or agree to any material undertakings in connection with its obligations under this
Section 9.9.
ARTICLE X.
TERMINATION OF AGREEMENT
TERMINATION OF AGREEMENT
10.1 Termination. At any time prior to the Closing, this Agreement may be terminated
as follows:
(a) by written consent of each of the parties to this Agreement;
(b) Buyer may terminate this Agreement by giving written notice to Seller at any time prior to
the Closing (i) in the event Seller has breached any representation, warranty or covenant contained
in this Agreement in any material respect, Buyer has notified Seller of such breach, and such
breach has continued without cure for a period of ten (10) business days after the notice of breach
or (ii) if the Closing shall not have occurred on or before December 31, 2006, by reason of the
failure of any condition precedent under Article VIII (unless the failure results primarily
from Buyer itself breaching any representation, warranty or covenant contained in this Agreement);
and
(c) Seller may terminate this Agreement by giving written notice to Buyer at any time prior to
the Closing (i) in the event Buyer has breached any representation, warranty or covenant contained
in this Agreement in any material respect, Seller has notified Buyer of such breach, and such
breach has continued without cure for a period of ten (10) business days after the notice of breach
or (ii) if the Closing shall not have occurred on or before December 31, 2006, by reason of the
failure of any condition precedent under Article VII (unless the failure results primarily
from Seller itself breaching any representation, warranty or covenant contained in this Agreement).
10.2 Effect of Termination. All obligations of the parties hereunder shall cease upon
any termination pursuant to Section 10.1; provided, however, that the
provisions of Section 6.5 and Articles X and XI shall survive any
termination of this Agreement.
ARTICLE XI.
MISCELLANEOUS
MISCELLANEOUS
11.1 Fees and Expenses. Except as otherwise specified in this Agreement, each party
hereto shall pay its own legal, accounting, out-of-pocket and other expenses incident to this
Agreement and to any
action taken by such party in preparation for carrying this Agreement into effect.
Notwithstanding anything in the foregoing to the contrary, Buyer shall be responsible for any
documentary and transfer taxes and any sales, use or other taxes imposed by reason of the transfer
of the Purchased Assets provided hereunder and any deficiency, interest or penalty asserted with
respect thereto, shall file in a timely manner all tax returns relating to such taxes and shall
hold Seller harmless from same.
11.2 Governing Law. This Agreement (including any claim or controversy arising out of
or relating to this Agreement) shall be governed by the law of the State of California without
22
regard to conflict of law principles that would result in the application of any law other than the
law of the State of California.
11.3 Notices. Any notice, request, demand or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been given (a) if delivered or
sent by facsimile transmission, upon receipt, (b) if sent by reputable courier service guaranteeing
overnight delivery, on the next business day, or (c) if sent by registered or certified mail, upon
the sooner of the date on which receipt is acknowledged or the expiration of three (3) business
days after deposit in United States post office facilities properly addressed with postage prepaid.
All notices to a party will be sent to the addresses set forth below or to such other address or
person as such party may designate by notice to each other party hereunder:
To Seller: | Paradyne Networks, Inc. | |||
0000 Xxxxxxx Xxxxxx | ||||
Xxxxxxx, XX 00000 | ||||
Attention: Chief Executive Officer | ||||
Fax: (000) 000-0000 | ||||
With a copy to: | Xxxxxx & Xxxxxxx LLP | |||
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000 | ||||
Xxx Xxxxx, XX 00000 | ||||
Attention: Xxxxx X. Xxxxxx, Esq. | ||||
Fax: (000) 000-0000 | ||||
To Buyer: | Verso Technologies, Inc. | |||
000 Xxxxxxxx Xxxxxxx, Xxxxx 000 | ||||
Xxxxxxx, XX 00000 | ||||
Attention: Chief Financial Officer | ||||
Fax: (000) 000-0000 | ||||
With a copy to: | Xxxxxx & Xxxxxx LLP | |||
2700 International Tower | ||||
000 Xxxxxxxxx Xxxxxx X.X. | ||||
Xxxxxxx, XX 00000 | ||||
Attention: Xxxxxx X. Hussle, Esq. | ||||
Fax: (000) 000-0000 |
Any notice given hereunder may be given on behalf of any party by its counsel or other
authorized Representatives.
11.4 No Third-Party Beneficiaries. This Agreement shall not confer any rights or
remedies upon any person other than the parties and their respective successors and permitted
assigns.
11.5 Construction. Buyer and Seller have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption
or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any
of the provisions of this Agreement.
23
11.6 Assignment. Neither this Agreement nor any of the rights or obligations
hereunder may be assigned by any party without the prior written consent of the other party.
Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
11.7 Captions and Gender. The captions in this Agreement are for convenience only and
shall not affect the construction or interpretation of any term or provision hereof. The use in
this Agreement of the masculine pronoun in reference to a party hereto shall be deemed to include
the feminine or neuter, as the context may require.
11.8 Execution in Counterparts. For the convenience of the parties and to facilitate
execution, this Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same document.
11.9 Amendments. This Agreement may not be amended or modified, nor may compliance
with any condition or covenant set forth herein be waived, except by a writing duly and validly
executed by each party hereto, or in the case of a waiver, the party waiving compliance.
11.10 Public Disclosure. No party shall issue any press release or make any other
public announcement relating to the subject matter of this Agreement without the prior written
consent of the other party; provided, however, that any party may make any public
disclosure it believes in good faith is required by applicable law or any listing agreement
concerning its publicly-traded securities,
provided such party gives prior written notice to the other party along with a copy of such
public disclosure.
11.11 Attorneys’ Fees. If either party to this Agreement brings an action to enforce
its rights under this Agreement, the prevailing party shall be entitled to recover its costs and
expenses, including, without limitation, reasonable attorneys’ fees and expenses, incurred by such
party in connection with such action, including any appeal of such action.
11.12 Force Majeure. No liability shall result to either party from any delay in
performance or from non-performance (other than non-payment) caused by circumstances beyond the
reasonable control of such party, including but not limited to, acts of God, fire, flood,
explosion, war, action or request of governmental authority, accident, labor trouble or shortage,
inability to obtain material, power, equipment or transportation, or any other circumstances of a
similar or different nature beyond such party’s reasonable control.
11.13 Entire Agreement. This Agreement, including the exhibits and schedules hereto,
reflects the entire agreement of the parties with respect to the subject matter hereof and
supersedes all previous written or oral negotiations, commitments and writings.
[Signature page follows]
24
IN WITNESS WHEREOF, the parties hereto have caused this Asset Purchase Agreement to be duly
executed on their respective behalf, by their respective officers thereunto duly authorized, all as
of the day and year first above written.
VERSO TECHNOLOGIES, INC. | PARADYNE NETWORKS, INC. | |||||||
By:
|
/s/ Xxxxxx X. Xxxxxx | By: | /s/ Xxxx Xxxxxx | |||||
Name:
|
Xxxxxx X. Xxxxxx | Name: | Xxxx Xxxxxx | |||||
Title:
|
CFO | Title: | CFO | |||||
SOLELY FOR PURPOSES OF AGREEING TO BE BOUND | ||||||||
BY SECTIONS 9.1(b), 9.1(c) AND 9.5 OF THIS AGREEMENT: | ||||||||
ZHONE TECHNOLOGIES, INC. | ||||||||
By: |
/s/ Xxxx Xxxxxx | |||||||
Name: |
Xxxx Xxxxxx | |||||||
Title: |
CFO | |||||||
S- 1
TABLE OF CONTENTS
Page | ||||
ARTICLE I. DEFINITIONS |
1 | |||
1.1 Defined Terms |
1 | |||
1.2 Other Defined Terms |
4 | |||
ARTICLE II. PURCHASE AND SALE OF PURCHASED ASSETS |
5 | |||
2.1 Sale of Assets |
5 | |||
2.2 Assumption of Liabilities |
6 | |||
2.3 Purchase Price |
6 | |||
2.4 Purchase Price Allocation |
7 | |||
2.5 Inventory |
7 | |||
ARTICLE III. CLOSING |
8 | |||
3.1 Closing |
8 | |||
3.2 Closing Transactions |
8 | |||
3.3 IP Closing |
9 | |||
3.4 Inventory Closing |
9 | |||
3.5 Form of Instruments |
9 | |||
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF SELLER |
9 | |||
4.1 Making of Representations and Warranties |
9 | |||
4.2 Organization of Seller |
9 | |||
4.3 Authority of Seller |
9 | |||
4.4 Title to Assets |
10 | |||
4.5 Sufficiency of Assets |
10 | |||
4.6 Inventory |
10 | |||
4.7 Contracts |
10 | |||
4.8 Intellectual Property |
10 | |||
4.9 Litigation |
11 | |||
4.10 Compliance with Laws |
11 | |||
4.11 Finder’s Fee |
11 | |||
4.12 Sales Information |
11 | |||
4.13 Product Warranties |
11 | |||
4.14 Conduct of the Business |
11 | |||
4.15 No Implied Warranties |
11 | |||
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF BUYER |
12 | |||
5.1 Making of Representations and Warranties |
12 | |||
5.2 Organization of Buyer |
12 | |||
5.3 Authority of Buyer |
12 | |||
5.4 Finder’s Fee |
13 | |||
5.5 Acknowledgements |
13 | |||
ARTICLE VI. COVENANTS |
13 |
i
Page | ||||
6.1 Further Assurances |
13 | |||
6.2 Conduct of Business |
13 | |||
6.3 No Solicitation of Other Offers |
14 | |||
6.4 Notification of Certain Matters |
14 | |||
6.5 Preservation of Confidentiality |
14 | |||
ARTICLE VII. CONDITIONS TO SELLER’S OBLIGATIONS |
14 | |||
7.1 Representations, Warranties and Covenants |
14 | |||
7.2 No Actions or Court Orders |
15 | |||
7.3 No Material Adverse Change |
15 | |||
7.4 Consents |
15 | |||
ARTICLE VIII. CONDITIONS TO BUYER’S OBLIGATIONS |
15 | |||
8.1 Representations, Warranties and Covenants |
15 | |||
8.2 No Actions or Court Orders |
15 | |||
8.3 No Material Adverse Change |
15 | |||
8.4 Consents |
15 | |||
ARTICLE IX. RIGHTS AND OBLIGATIONS SUBSEQUENT TO CLOSING |
16 | |||
9.1 Survival |
16 | |||
9.2 Consents to Assignment |
17 | |||
9.3 Books and Records; Tax Matters; Liabilities |
18 | |||
9.4 Employee Matters |
18 | |||
9.5 Covenant Not to Compete |
19 | |||
9.6 Transition Services |
20 | |||
9.7 Use of Paradyne Marks |
20 | |||
9.8 Audited Financial Statements of Business |
21 | |||
9.9 Use of Excluded Assets and Agreements |
21 | |||
ARTICLE X. TERMINATION OF AGREEMENT |
22 | |||
10.1 Termination |
22 | |||
10.2 Effect of Termination |
22 | |||
ARTICLE XI. MISCELLANEOUS |
22 | |||
11.1 Fees and Expenses |
22 | |||
11.2 Governing Law |
22 | |||
11.3 Notices |
23 | |||
11.4 No Third-Party Beneficiaries |
23 | |||
11.5 Construction |
23 | |||
11.6 Assignment |
24 | |||
11.7 Captions and Gender |
24 | |||
11.8 Execution in Counterparts |
24 | |||
11.9 Amendments |
24 | |||
11.10 Public Disclosure |
24 | |||
11.11 Attorneys’ Fees |
24 | |||
11.12 Force Majeure |
24 | |||
11.13 Entire Agreement |
24 |
ii
EXHIBIT LIST | ||||
Exhibit A: | Form of IP Assignment Agreement | |||
Exhibit B: | Form of License Agreement | |||
Exhibit C: | Form of Xxxx of Sale | |||
Exhibit D: | Form of Assignment of Contracts | |||
Exhibit E: | Form of Assumption of Liabilities | |||
Exhibit F: | Form of Adaptation of Reseller Agreement |
SCHEDULE LIST | ||||
Schedule 1.1: | Purchased Assets | |||
Schedule 1.2: | Excluded Agreements | |||
Schedule 2.2(c): | Employee Liabilities | |||
Schedule 2.2(d): | Commitments | |||
Schedule 2.5: | Inventory | |||
Schedule 4.3: | Authority of Seller | |||
Schedule 4.4: | Title to Assets | |||
Schedule 4.5: | Sufficiency of Assets | |||
Schedule 4.8: | Intellectual Property | |||
Schedule 4.9: | Litigation | |||
Schedule 4.13: | Product Warranties | |||
Schedule 5.3(c): | Buyer Required Consents | |||
Schedule 8.4: | Seller Required Consents | |||
Schedule 9.6: | Transition Services |
iii