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EXHIBIT 10.43
HP AND SYMANTEC CONFIDENTIAL EXECUTION COPY
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is entered into and is
effective this 27th day of March, 1997, by and between Hewlett-Packard
Company, a California corporation ("HP") and Symantec Corporation, a Delaware
corporation ("Symantec").
RECITALS:
A. Symantec has been operating a business to design, develop,
enhance, test, manufacture, distribute and support the products, technologies
and intellectual property known to Symantec and its customers as all versions
of Norton Administrator for Networks ("NAN"), Norton Desktop Administrator
("NDA"), Expose ("Expose") and work-in-progress and developments intended for
the upcoming "Big Bang" release (collectively, the "Business").
B. Symantec's business of (i) designing, developing, enhancing
and testing the Products and Work-in-Progress, (ii) manufacturing and
distributing specifically for the Products and Work-in-Progress, and (iii)
supporting primarily the Products and Work-in-Progress, constitutes the
"Products Business."
C. Pursuant to this Agreement, Symantec is selling and HP is
buying the Assets.
D. Pursuant to the License Agreement, HP is licensing from
Symantec certain intellectual property relating to the Business, and Symantec
is licensing from HP certain intellectual property relating to the Business.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants, representations, warranties, conditions and agreements herein
contained, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions. In this Agreement, the following terms
have the meanings specified or referred to in this Section 1.1 and shall be
equally applicable to both the singular and plural forms. Any agreement
referred to below shall mean such agreement as amended, supplemented and
modified from time to time to the extent permitted by the applicable provisions
thereof and by this Agreement.
"Affiliate" means any entity which controls, is controlled by, or is
under common control with, Symantec or HP, as the case may be. An entity shall
be deemed to be in control of another entity only if, and for so long as, it
owns or controls more than fifty percent (50%) of the shares of the subject
entity entitled to vote in the election of directors (or, in the case of an
entity that is not a corporation, for the election of the corresponding
managing authority).
"Assets" has the meaning specified in Section 2.1 hereto.
"Assumed Liabilities" has the meaning specified in Section 2.4 below.
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"Books and Records" means all copies of all books, records, files and
papers related to the Products Business or the Assets including drawings,
engineering information, computer programs (including source code), software
programs, manuals and data, sales and advertising materials, sales and
purchases correspondence, trade association files, research and development
records, softcopy of lists and databases of present and former customers,
suppliers, end user registrations and order history, research and development
personnel, sales and marketing personnel, employment and other records
(including, without limitation, the personnel files for the New HP Regular
Personnel), and all copies and recordings of the foregoing. To the extent that
Books and Records relate primarily to operations other than the Products
Business, Symantec will only deliver to Purchaser a copy of such Books and
Records and shall retain the original.
"Business" has the meaning specified in paragraph A of the Recitals to
this Agreement.
"HP" has the meaning specified in the first paragraph of this
Agreement.
"HP Ancillary Agreements" means all agreements, instruments and
documents being or to be executed and delivered by HP under this Agreement or
in connection herewith pursuant to Section 3.3 below.
"HP Group Member" means HP and its Affiliates and their respective
successors and assigns.
"CDA" means the Confidential Disclosure Agreement between Symantec and
HP effective November 15, 1996.
"Claim Notice" has the meaning specified in Section 10.4 below.
"Closing" has the meaning specified in Section 3.1 below.
"Closing Date" has the meaning specified in Section 3.1 below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Components" means component parts, raw materials supplies and other
materials which are of a type generally quantified in the bills of materials
and which are required for the production and test of the Products and the
Work-in-Process.
"Court Order" means any judgment, order, award or decree of any
foreign, federal, state, local or other court or tribunal, or any Governmental
Body and any award in any arbitration proceeding.
"Disclosure Letter" has the meaning specified in Article 4 below.
"Encumbrance" means any lien, claim, charge, security interest,
mortgage, pledge, easement, conditional sale or other title retention
agreement, defect in title, covenant or other restrictions of any kind.
"Environmental Laws" shall mean all Requirements of Laws which relate
to any Hazardous Material or the use, handling, transportation, production,
spill, leaking, pumping, injection, deposit, disposal, discharge, dispersal,
release, threatened release, migration, emission, sale, or storage of, or the
exposure of any Person to, a Hazardous Material.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Excluded Assets" has the meaning specified in Section 2.3 below.
"Expenses" means any and all expenses incurred in connection with
investigating, mitigating, re-engineering to avoid, mitigate or terminate,
defending or asserting any claim, action, suit or proceeding incident to any
matter indemnified against hereunder (including, without limitation, court
filing fees, court costs, arbitration fees or costs, witness fees, any
engineering costs, and reasonable fees and disbursement of legal counsel,
investigators, expert witnesses, consultants, accountants and other
professionals).
"Expose" has the meaning described in Recital A above.
"Government Contract" means any Government prime contract, or any
subcontract at whatever tier under a Government prime contract, or any basic
ordering agreement, letter contract, purchase order or delivery order of any
kind, including without limitation, as to all of the foregoing, all amendments,
modifications and options thereunder relating thereto.
"Governmental Body" means any federal, state, county, local, district,
public authority, public agency, court, or any other political subdivision,
public corporation, or governmental or regulatory authority whether foreign or
domestic.
"Governmental Permits" has the meaning specified in Section 4.5 below.
"HSR Filing" has the meaning specified in Section 7.14
"Hazardous Material" shall mean any material or substance that is now
or hereafter prohibited or regulated by any Requirement of Law or that is now
or hereafter designated by any Governmental Body to be radioactive, toxic,
hazardous or otherwise a danger to health, reproduction or the environment.
"Instrument of Assignment and Assumption" means the Instrument of
Assignment and Assumption in the form of Exhibit C hereto executed as of the
Closing Date.
"Intellectual Property" means worldwide patents, patent applications,
patent rights, trademarks, trademark registrations, trademark applications,
licenses, service marks, products marks, trade names, all other names embodying
products or product goodwill (or both) copyright registrations, mask works,
copyrights (including those in computer programs, software, including all
source code and object code, programming tools, drawings, specifications and
data), designs, trade secrets, technology, inventions, discoveries and
improvements, know-how; proprietary rights, formulae, processes, technical
information, confidential and proprietary information, whether tangible or
intangible, and all other intellectual property rights, whether or not subject
to statutory registration or protection.
"IRS" means the Internal Revenue Service.
"Leased Premises" means approximately 31,276 square feet of office
space located at 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx and
approximately 7,230 square feet of lab space located at 0000 Xxxxxxxx, Xxxxx,
Xxxxxx, Xxxxxxxxxx which is leased or occupied by Symantec under the Premises
Lease at a current monthly rental rate on a gross basis of approximately $3 per
square foot.
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"Letter of Intent" means the Outline of Principal Terms dated February
19, 1997 by and between Symantec and HP.
"License Agreement" means the License Agreement in the form of Exhibit
D hereto, executed as of the date of this Agreement and effective as of the
Closing Date.
"Losses" means any and all losses, costs, obligations, liabilities,
settlement payments, awards, judgments, fines, penalties, damages, expenses,
deficiencies or other charges.
"Marketing Information" means the following information relating to
the Products Business and support of the Products and Work-in-Progress, in any
form whatsoever, in Symantec's possession or control: all customer and
marketing information and materials relating to the Products Business and
support of the Products and Work-in-Progress, including without limitation (a)
advertisements, advertising schedules, press releases, brochures and other
promotional materials; (b) strategic data, including marketing and development
plans, forecasts and forecast assumptions and volumes, and future plans and
potential strategies of Symantec which have been or are being discussed; (c)
financial data, including price and cost objectives, price lists, pricing and
quoting policies and procedures; and (d) customer data, including customer
lists, names of customers and their representatives, data provided by or about
prospective, existing or past customers, customer service materials, and the
type, quantity and specifications of products and services purchased, leased or
licensed by customers of Symantec.
"NAN" has the meaning described in Recital A above.
"NDA" has the meaning described in Recital A above.
"NSMD" has the meaning specified in Section 2.6 below.
"New HP Regular Personnel" means Regular Personnel who will become
HP's regular personnel on the first business day after the Closing Date.
"OSHA" means the Occupational Safety and Health Act, 29 U.S.C. Section
Section 651 et seq., any amendment thereto, any successor statute, and any
regulations promulgated thereunder.
"pcANYWHERE OEM" means the Second Amendment to Software License
Agreement between Symantec and HP in the form of Exhibit B hereto executed as
of the date of this Agreement and effective as of the Closing Date.
"Permitted Encumbrances" means (a) liens for taxes and other
governmental charges and assessments which are not yet due and payable, (b)
liens of landlords and liens of carriers, warehousemen, mechanics and
materialmen and other like liens arising in the ordinary course of business for
sums not yet due and payable and (c) other liens or imperfections on property
which are not material in amount or do not materially detract from the value of
or materially impair the existing use of the property affected by such lien or
imperfection.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or Governmental Body.
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"Premises Lease" means the leases or subleases relating to the Leased
Premises.
"Products" means all past and current versions of NAN, NDA and Expose.
"Purchase Price" has the meaning specified in Section 2.6 below.
"Regular Personnel" means all employees of the Symantec engaged in the
Products Business on a full-time basis with the exception of (i) employees who
are currently on leave of absence without a job guarantee, (ii) employees who
are no longer physically able to perform the full range of essential
requirements of their position, (iii) employees who are on probation, and (iv)
employees who have indicated their intention not to become New HP Regular
Personnel. Part-time employees and independent contractors engaged in the
Business are not Regular Personnel for the purposes of this Agreement.
"Requirement of Laws" means any foreign, federal, state and local
laws, statutes, regulations, rules, guidelines, codes, ordinances, judgments,
injunctions, decrees, orders, permits, approvals, treaties or protocols now or
hereafter enacted, adopted, issued or promulgated by any Governmental Body
(including, without limitation, those pertaining to electrical, building,
zoning, environmental and occupational safety and health requirements) or
common law.
"Sublease" means the Sublease Agreement among Symantec, HP and the
landlord of the Leased Premises attached hereto as Exhibit F, executed as of
the date of this Agreement and effective as of the Closing Date.
"Sublease Letter Agreement" means the letter agreement between HP and
Symantec relating to certain post-closing matters relating to the Sublease.
"Symantec" has the meaning specified in the first paragraph of this
Agreement.
"Symantec Ancillary Agreements" means all agreements, instruments and
documents being or to be executed and delivered by Symantec under this
Agreement or in connection herewith pursuant to Section 3.4 below.
"Symantec Group Member" means Symantec and its Affiliates and their
respective successors and assigns.
"Symantec Property" means any real or personal property, plant,
building, facility, structure, underground storage tank, equipment or unit, or
other asset owned, leased or operated by Symantec and used in the Business.
"Tax" means any federal, state, local or foreign net income,
alternative or add-on minimum, gross income, gross receipts, property, sales,
use, transfer, gains, license, excise, employment, payroll, withholding or
minimum tax, or any other tax custom, duty, governmental fee or other like
assessment or charge of any kind whatsoever, together with any interest or any
penalty, addition to tax or additional amount imposed by any Governmental Body.
"Tax Return" means any return, report or similar statement required to
be filed with respect to any Taxes (including any attached schedules),
including, without limitation, any information return, claim for
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refund, amended return and declaration of estimated Tax.
"Technical Support People" has the meaning specified in Section 7.8
below.
"Transfer Taxes" has the meaning specified in Section 2.6 below.
"Transferred Agreements" has the meaning specified in Section 4.10
below.
"Transition Agreement" means the Transition Agreement between Symantec
and HP attached hereto as Exhibit G, executed as of the date of this Agreement
and effective as of the Closing Date.
"Transition OEM" means the Software License Agreement between Symantec
and HP attached hereto as Exhibit E, executed as of the date of this Agreement
and effective as of the Closing Date.
"Transition Period" has the meaning specified in Section 7.8 below.
"Work-in-Progress" means work-in-progress for the "Big Bang" release.
ARTICLE 2
PURCHASE AND CONSIDERATION
Section 2.1 Purchase and Sale. Subject to the terms and
conditions of this Agreement, Symantec agrees to transfer, convey, assign and
deliver to HP on the Closing Date (as hereinafter defined), and HP agrees to
buy from Symantec, free and clear of all Encumbrances, all the assets and
properties, tangible and intangible, real, personal or mixed, owned, leased or
used by Symantec described in this Section 2.1 (the "Assets"):
(a) All Intellectual Property for the products,
components, build system projects and Marketing Information in
Exhibit A-1 hereto;
(b) The Transferred Agreements listed on Exhibit A-2
hereto;
(c) All Intellectual Property owned by Symantec and
necessary for, used in or associated with the Products Business,
except the Intellectual Property licensed under Section 2.2;
(d) The Books and Records;
(e) Capital Equipment and Hard Assets. All capital
equipment and other hard assets listed on Schedule 2.1(e) hereto;
(f) All planning and management models and tools used in
the Products Business; and
(g) Pursuant to the Sublease, the Leased Premises.
Section 2.2 Licenses. As described in the License Agreement, (a)
Symantec will license to HP certain products, technologies and intellectual
property, and (b) HP will license to Symantec certain
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products, technologies and intellectual property.
Section 2.3 Assets and Business Not to be Transferred. Symantec
shall retain and HP shall not acquire the following assets, properties and
business of Symantec, which together shall constitute the Excluded Assets:
(a) All cash, bank deposits and cash equivalents;
(b) All promissory notes and accounts receivable;
(c) All owned real property and options to acquire real
property;
(d) Symantec's interest in and to all telephone, telex
and telephone facsimile numbers and other directory listings currently
used or owned by Symantec;
(e) All contracts of insurance;
(f) All rights, title and interest in the names "Norton"
and "Symantec" and the trademarks "Norton" and "Symantec;"
(g) All contracts of distribution including, without
limitation, any exclusive distribution agreement; and
(h) All other assets of Symantec other than the Assets.
Section 2.4 Assumption of Liabilities and Obligations. Subject to
the terms and conditions contained herein, on the Closing Date HP shall assume
and agree thereafter to pay, perform and discharge only the obligations and
liabilities of Symantec under the Transferred Agreements, but HP shall not
assume or pay, perform or discharge any such obligations or liabilities arising
out of any breach or default by Symantec under the Transferred Agreements prior
to the Closing Date. The foregoing are hereinafter referred to collectively as
the "Assumed Liabilities." HP's assumption of the Assumed Liabilities is
intended to inure solely to the benefit of Symantec, and, not withstanding
anything herein to the contrary, such assumption is not intended and shall not
be construed to give any third parties any greater or additional benefits than
they would have but for HP's assumption.
Section 2.5 Liabilities and Obligations Not Assumed. Notwithstanding
anything in this Agreement to the contrary, except as set forth in Section 2.4
above or as set forth below in this Section 2.5, HP shall not assume or have
any responsibility for any liability, obligation or commitment of any nature of
Symantec, whether now or hereafter existing, and Symantec covenants that it
shall retain all such liabilities, obligations or commitments, including
without limitation:
(a) Any liabilities, obligations, commitments made by
Symantec to any customer, including without limitation for service,
support or maintenance of any kind;
(b) Any liabilities for any Taxes, including without
limitation Transfer Taxes, of any kind relating to or attributable to
any previous period (or any portion of any period) ending on or prior
to the Closing Date levied or imposed upon the Assets, or in
connection with this Agreement
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or the transactions contemplated hereby; and
(c) Except as set forth in Section 7.5 below or in the
offer letters from HP referred to therein any liabilities, obligations
or commitments of Symantec to New HP Regular Personnel incurred or
made in connection with the Business.
Section 2.6 Consideration. The consideration for the transfer of
the Assets shall be a stream of cash payments not to exceed an aggregate of
$30,000,000 net present value as follows (collectively, the "Purchase Price"):
(a) $2,000,000 payable at closing as reimbursement of
Symantec's development expenses on "Big Bang" between February 19,
1997 and the Closing Date;
(b) Nonrefundable royalties paid as follows: (i)
$1,000,000 paid at Closing, and (ii) as set forth on Schedule 2.6(b)
to this Agreement, a royalty payable within 45 days after the end of
each of HP's fiscal quarters commencing with the quarter ending April
30, 1997 and ending with the quarter ending October 31, 1998, in an
amount equal to a percentage of HP's Network and System Management
Division's ("NSMD") net revenue, as defined and tracked by NSMD's
controller for each such quarter, provided that such amounts will not
aggregate more than $27,000,000 net present value. Symantec agrees
that neither it nor its auditors will have audit rights or the right
to see any financial statements of NSMD or any other HP organization,
other than those publicly available.
Section 2.7 Allocation of Purchase Price.
(a) The royalties paid to Symantec, as set forth in
Section 2.6(b) above, will be allocated as follows: (i) $2,071,000
will be allocated to tangible property including fixed assets,
diskettes and manuals, and (ii) the remainder will be allocated to
intangible property.
(b) Symantec and HP will treat, account and report this
transaction in accordance with the above allocation for internal
accounting purposes and with respect to any returns filed with
federal, state or local tax authorities.
Section 2.8 Transfer Taxes. Symantec shall pay and promptly
discharge when due the entire amount of any and all excise, sales, value-added,
use, registration, stamp, transfer and other like Taxes (the "Transfer Taxes")
imposed or levied by reason of, in connection with or attributable to this
Agreement and the transactions contemplated hereby. The parties shall
cooperate with each other to the extent reasonably requested and legally
permitted to minimize any Transfer Taxes.
ARTICLE 3
CLOSING
Section 3.1 The Closing. The transactions contemplated by this
Agreement shall be consummated (the "Closing") at the offices of HP, 0000
Xxxxxxx Xxxxxx, Xxxx Xxxx, XX 00000, at 10 a.m. local time, on, Wednesday,
April 16, 1997, or such other place, time and date as the parties shall agree
in writing. The time and date on which the Closing is actually held is
sometimes referred to herein as the
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"Closing Date."
Section 3.2 Payment. Subject to fulfillment or waiver of the
conditions set forth in Article 8 below, at Closing HP shall pay Symantec the
first $3,000,000 of the Purchase Price (net of any amounts payable to HP at the
Closing under any HP Ancillary Agreements or this Agreement) by delivery of a
wire transfer in the amount thereof to Bank of America, 0000 Xxxxxxx Xxxxxxxxx,
Xxxxxxx, XX 00000, FedWire (ABA) 000-000-000, account number 12338-10287, in
the name of Symantec Corporation.
Section 3.3 HP's Additional Deliveries. Subject to fulfillment
or waiver of the conditions set forth in Article 8, at Closing HP shall deliver
to Symantec all of the following:
(a) The Instrument of Assignment and Assumption duly
executed by HP;
(b) The certificate contemplated by Sections 7.17, 8.1,
8.2 and 8.3 below, duly executed by an authorized representative of
HP;
(c) The License Agreement duly executed by HP;
(d) The pcANYWHERE OEM Agreement duly executed by HP;
(e) The Transition OEM Agreement duly executed by HP;
(f) The Transition Agreement duly executed by HP; and
(g) The Sublease and the Sublease Letter Agreement duly
executed by HP.
Section 3.4 Symantec's Deliveries. Subject to fulfillment or
waiver of the conditions set forth in Article 9, at Closing Symantec shall
deliver to HP all of the following:
(a) Copies of the Articles of Incorporation of Symantec
certified as of a recent date by the Secretary of State of the State
of Delaware;
(b) Certificate of Good Standing of Symantec issued as of
a recent date by the Secretary of State of the State of Delaware;
(c) Certificate of the secretary or an assistant
secretary of Symantec, dated the Closing Date, in form and substance
reasonably satisfactory to HP, as to (i) no amendments to the
Certificate of Incorporation of Symantec since a specified date; (ii)
the by-laws of Symantec; (iii) the resolutions of the Board of
Directors of Symantec authorizing the execution and performance of
this Agreement, the Symantec Ancillary Agreements and the contemplated
transactions;
(d) The Instrument of Assignment and Assumption duly
executed by Symantec;
(e) All consents, waivers or approvals required to be
obtained by Symantec with respect to the Assets or the consummation of
the transactions contemplated by this Agreement;
(f) The certificates contemplated by Sections 8.1 through
8.3 below, duly executed by an authorized officer of Symantec;
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(g) (i) A copyright registration and assignment for each
Product and each Work-in-Progress; (ii) a worldwide trademark
assignment for each xxxx; and (iii) a patent assignment for each
patent included in the Assets;
(h) The License Agreement duly executed by Symantec;
(i) The pcANYWHERE OEM Agreement duly executed by
Symantec;
(j) The Transition OEM Agreement duly executed by
Symantec;
(k) The Transition Agreement duly executed by Symantec;
and
(l) The Sublease duly executed by Symantec and the
landlord of the Leased Premises; and the Sublease Letter Agreement
duly executed by Symantec.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SYMANTEC
As an inducement to HP to enter into this Agreement and to consummate
the transactions contemplated hereby, except as set forth in Schedule 4 (the
"Disclosure Letter") (which Disclosure Letter shall specifically reference the
Sections of this Agreement to which the disclosure therein applies and shall be
executed by an authorized officer of Symantec), Symantec represents and
warrants to HP as follows:
Section 4.1 Organization of Symantec. Symantec is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Symantec is duly qualified to transact business as a
foreign corporation and is in good standing in each of the 50 states of the
United States in which the ownership or leasing of the Assets or the conduct of
the Products Business requires such qualification. Symantec has full power and
authority to own or lease and to operate and use the Assets and to carry on the
Products Business as now conducted and as now proposed to be conducted pursuant
to this Agreement. Symantec has no subsidiaries or affiliated companies, and
does not otherwise own or control, directly or indirectly, any equity interest
in any corporation, association or business entity, that has any interest in
the Assets or the Products Business. Symantec has delivered to HP complete and
correct copies of the Certificate of Incorporation and Bylaws of Symantec, in
each case as amended to the date hereof, and has delivered or made available
minutes of all of directors', directors' committees' and shareholders' meetings
that directly discuss the Products Business or the Assets.
Section 4.2 Authorization.
(a) Symantec has full power and authority to execute,
deliver and perform this Agreement and all of the Symantec Ancillary
Agreements and to consummate the transactions contemplated hereby and
thereby. The execution, delivery and performance of this Agreement
and the Symantec Ancillary Agreements by Symantec have been duly and
validly authorized and approved by all required corporate proceedings
on the part of Symantec. This Agreement has been duly authorized,
executed and delivered by Symantec and is the legal, valid and binding
obligation of Symantec enforceable in accordance with its terms,
except (a) as such enforcement may be
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subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights,
and (b) as the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may
be brought, and each of the Symantec Ancillary Agreements has been
duly authorized by Symantec and upon execution and delivery by
Symantec will be a legal, valid and binding obligation of Symantec
enforceable in accordance with its terms.
(b) Except as set forth in Section 4.2 of the Disclosure
Letter, neither the execution and delivery of this Agreement or any of
the Symantec Ancillary Agreements or the consummation of any of the
transactions contemplated hereby or thereby nor compliance with or
fulfillment of the terms, conditions and provisions hereof or thereof
will: (i) violate, conflict with, result in a breach of the terms,
conditions or provisions of, or constitute a default, an event of
default or an event creating rights of acceleration, termination or
cancellation or a loss of rights under, or result in the creation or
imposition of any Encumbrance upon any of the Assets under, (1) the
Certificate of Incorporation or Bylaws of Symantec, (2) any
Transferred Agreement (as defined in Section 4.10), (3) any other
note, instrument, agreement, mortgage, lease, license, franchise,
permit or other authorization, right, restriction or obligation to
which Symantec is a party or any of its properties is subject or by
which Symantec is bound, (4) any Court Order to which Symantec is a
party or any of its properties is subject or by which Symantec or any
of its properties is bound, or (5) any Requirements of Laws affecting
Symantec or its property; or (ii) require the approval, consent,
authorization or act of, or the making by Symantec of any declaration,
filing or registration with any Person.
(c) Except for the HSR Filing, no consent, approval,
order or authorization of, or registration, declaration or filing
with, any Governmental Body is required by or with respect to Symantec
in connection with the execution and delivery of this Agreement and
the Symantec Ancillary Agreements by Symantec or the consummation by
Symantec of the transactions contemplated hereby or thereby.
Section 4.3 Taxes. Symantec has filed all Tax Returns which it
is required to file and has paid all Taxes which it is required to pay or which
have become payable pursuant to any assessment. There are (and as of
immediately following the Closing there will be) no Encumbrances on the Assets
relating to or attributable to Taxes other than Permitted Encumbrances.
Symantec has no knowledge of any basis for the assertion of any such claims
which, if adversely determined, would result in an Encumbrance on the Assets,
other than Permitted Encumbrances, or otherwise adversely affect HP or HP's use
of the Assets. None of the Assets are treated as "tax-exempt use property"
within the meaning of Section 168(h) of the Code.
Section 4.4 Availability of Assets and Legality of Use. Symantec
does not own any real property for the operations of the Products Business.
Except (i) as set forth in Section 4.4 of the Disclosure Letter, (ii) for the
Excluded Assets, and (iii) the rights granted under the License Agreement, the
Assets, in conjunction with the rights granted under the License Agreement,
constitute all the rights and intangible assets primarily used for and
necessary to operate the Products Business and constitute all the tangible
assets primarily used for the Products Business (including, but not limited
to, all books, records, computers and computer programs and data processing
systems) and are in good condition (subject to normal wear and tear) and
serviceable condition and are suitable for the uses for which they are
intended.
Section 4.5 Governmental Permits.
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(a) Symantec owns, holds or possesses all licenses,
franchises, permits, privileges, immunities, approvals and other
authorizations from a Governmental Body which are necessary to entitle
it to own or lease, operate and use the Assets and to carry on and
conduct the Products Business substantially as currently conducted
(herein collectively called "Governmental Permits"). Section 4.5 of
the Disclosure Letter sets forth a list and brief description of each
Governmental Permit, except for such incidental licenses, permits and
other authorizations which would be readily obtainable by any
qualified applicant without undue burden in the event of any lapse,
termination, cancellation or forfeiture thereof. The Governmental
Permits to be transferred to HP in connection with the transactions
contemplated hereby as indicated in Section 4.5 of the Disclosure
Letter are collectively referred to herein as the "Transferred
Permits." Complete and correct copies of all of the Transferred
Permits have heretofore been delivered to HP by Symantec.
(b) (i) Symantec has fulfilled and performed its
obligations under each of the Governmental Permits, and no event has
occurred or condition or state of facts exists which constitutes or,
after notice or lapse of time or both, would constitute a breach or
default under any such Governmental Permit or which permits or, after
notice or lapse of time or both, would permit revocation or
termination of any such Governmental Permit, or which might adversely
affect in any material respect the rights of Symantec under any such
Governmental Permit; (ii) no notice of cancellation, of default or of
any material dispute concerning any Governmental Permit, or of any
event, condition or state of facts described in the preceding clause,
has been received by, or is known to, Symantec; and (iii) each of the
Governmental Permits is valid, subsisting and in full force and effect
and may be assigned and transferred to HP in accordance with this
Agreement and will continue in full force and effect thereafter, in
each case without (x) the occurrence of any breach, default or
forfeiture of rights thereunder, or (y) the consent, approval, or act
of, or the making of any filing with, any Governmental Body.
Section 4.6 Personal Property. Schedule 2.1(e) contains a
detailed list of all capital equipment and hard assets used in the Products
Business. Schedule 2.1(e) contains a brief description of each lease or other
agreement or right, whether written or oral (including in each case the annual
rental amount, the expiration date thereof and a brief description of the
property covered) under which Symantec is lessee of, or holds or operates, any
machinery, equipment, vehicle or other tangible personal property owned by a
third Person transferred under this Agreement.
Section 4.7 Title to Property. Symantec has good and marketable
title to all of the Assets, free and clear of all Encumbrances, except for
Permitted Encumbrances. Except as disclosed in Section 4.7 of the Disclosure
Letter, the Assets constitute all of the intangible assets which are primarily
used for and necessary for the continued conduct of the Products Business as
now conducted and all of the tangible assets which are primarily used for the
continued conduct of the Products Business as now conducted. Upon delivery to
HP on the Closing Date of the instruments of transfer contemplated by Section
3.4 above, Symantec will thereby transfer to HP good and marketable title to
the Assets, subject to no Encumbrances, except for Permitted Encumbrances.
Section 4.8 Intellectual Property.
(a) Symantec owns, or is licensed or otherwise entitled
to exercise, without restriction, all rights to the Intellectual
Property of the Assets.
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(b) The Disclosure Letter lists (i) all patents,
registered copyrights, trade dress, trade names, trademarks, service
marks and other company, product or service identifiers and mask work
rights, and any applications or registrations therefor, included in
the Intellectual Property of the Assets, and specifies the
jurisdictions in which each such right has been issued or registered
or in which an application for such issuance or registration has been
filed, including the respective registration or application numbers,
together with a list of all of Symantec's currently marketed products
within the Products Business and an indication as to which, if any, of
such products have been registered for copyright protection with the
United States Copyright Office and any foreign offices; (ii) all
licenses, sublicenses and other agreements as to which Symantec is a
party and pursuant to which Symantec or any other person is authorized
to use any Intellectual Property of the Assets, other than (A)
standard object code end user license agreements, (B) standard upgrade
insurance agreements, (C) standard support agreements and (D) any
other end user upgrade or support agreement that only materially
deviates from the standard form agreement by providing that the
governing law is other than California law, the product is warranted
to comply with the "Year 2000," or Symantec has provided patent
indemnification to the other party to the agreement. The Disclosure
Letter shall include the full name of such agreements, the full names
of all parties thereto, and the effective date thereof. The
Disclosure Letter shall also list all parties to whom Symantec has
delivered copies of Symantec source code, whether pursuant to an
escrow arrangement or otherwise, or parties who have the right to
receive such source code. Symantec's standard form(s) of (A) object
code end use license agreements, (B) standard upgrade insurance
agreements, and (C) standard support agreements are labeled and
appended to the Disclosure Letter. Copies of all non-standard
licenses, sublicenses, and other agreements identified pursuant to
clause (ii) above have been delivered by Symantec to HP.
(c) Symantec is not, nor as a result of the execution and
delivery of this Agreement or the performance of Symantec's
obligations hereunder will be, in violation of, or lose any rights
pursuant to any license, sublicense or agreement described in the
Disclosure Letter.
(d) Symantec is the owner or licensee of, with all
necessary right, title and interest in and to (free and clear of any
liens, encumbrances or security interests), the Intellectual Property
of the Assets and has rights (and except as set forth in the
Disclosure Letter is not contractually obligated to pay any
compensation to any third party in respect thereof) to the use thereof
or the material covered thereby in connection with the services or
products in respect of which such rights are being used.
(e) No claims with respect to the Intellectual Property
of the Assets have been asserted or, are threatened by any person and
Symantec does not know of any claims (i) to the effect that the
manufacture, sale or use of any product as now used or offered or
proposed for use or sale by Symantec infringes any copyright, patent,
trade secret, or other Intellectual Property right of any third party,
(ii) against the use by Symantec of any Intellectual Property of the
Assets, or (iii) challenging the ownership, validity or effectiveness
of any such rights.
(f) All patents and registered trademarks, service marks,
and other company, product or service identifiers and registered
copyrights for the Intellectual Property of the Assets held by
Symantec are valid and in effect.
(g) There has not been and there is not now any material
unauthorized use,
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infringement or, misappropriation of any of the Intellectual Property
of the Assets by any third party, including without limitation any
employee or former employee of Symantec. Symantec has not been sued
or charged in writing as a defendant in any claim, suit, action or
proceeding which involves a claim of infringement of any patents,
trademarks, service marks, copyrights or other Intellectual Property
of the Assets and which has not been finally terminated prior to the
date hereof. There are no such charges or claims outstanding.
(h) (i) Symantec does not have any liability with
respect to the Intellectual Property of the Assets arising from the
infringement or misappropriation of any patent, known to Symantec and
issued or published prior to closing, any trademark, any service xxxx,
any copyright or other Intellectual Property right of another. (ii)
Symantec does not have any liability with respect to the Intellectual
Property of the Assets arising from the infringement or
misappropriation of any patent not known to Symantec and issued or
published prior to closing.
(i) No Intellectual Property of the Assets is subject to
any outstanding order, judgment, decree, stipulation or agreement
restricting in any manner the licensing thereof by Symantec. Symantec
has not entered into any agreement to indemnify any other person
against any charge of infringement of any Intellectual Property of the
Assets. Symantec has not entered into any agreement granting any
third party the right to bring infringement actions with respect to,
or otherwise to enforce rights with respect to, any Intellectual
Property of the Assets. Symantec has the exclusive right to file,
prosecute and maintain all applications and registrations with respect
to the Intellectual Property of the Assets.
Section 4.9 Employees.
(a) HP will not have, as a consequence of the
transactions contemplated hereby, any liability or obligation with
respect to or under any "employee benefit plan" (as such term is
defined in Section 3(3) of ERISA) or any other plan, program or
arrangement, whether written or oral, providing for compensation or
benefits in connection with the performance of services to Symantec
maintained by Symantec with respect to employees of the Business or
any other Symantec employees. Symantec has complied with the health
care continuation requirements of Section 601 et seq. of ERISA with
respect to employees of the Business and their spouses, former spouses
and dependents.
(b) Schedule 7.5 contains: (i) a list as of March 24,
1997 of all Regular Personnel and all other employees or contractors
of Symantec providing support to the Products and the
Work-in-Progress; and (ii) the then current annual compensation
provided by Symantec to any such employees. None of such employees
has indicated a present intention to resign or retire.
(c) No New HP Regular Personnel are currently affected by
a formal Symantec salary reduction program.
(d) Insofar as it pertains to the Products Business,
Symantec is not a party to or bound by any union contract and has not
experienced any strike, grievance or any arbitration proceeding, claim
of unfair labor practices filed or threatened to be filed or any other
material labor difficulty. No organizational effort is being or has
been made or threatened by or on behalf of any labor union with
respect to any employees of the Symantec.
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Section 4.10 Transferred Agreements. Complete and correct copies
of each of the leases, contracts and other agreements to be transferred to HP
in connection with the transactions contemplated hereby as indicated in Exhibit
A-2 (collectively referred to herein as the "Transferred Agreements") have been
delivered to HP by Symantec.
Section 4.11 Status of Transferred Agreements.
(a) Each of the Transferred Agreements constitutes a
valid and binding obligation of the parties thereto and is in full
force and effect. All of such Transferred Agreements may be
transferred to HP pursuant to this Agreement and will continue in full
force and effect thereafter, in each case without breaching the terms
thereof or resulting in the forfeiture or impairment of any rights
thereunder and without the consent, approval or act of, or the making
of any filing with, any other party.
(b) Symantec has fulfilled and performed in all material
respects its obligations under each of the Transferred Agreements, and
Symantec is not in, or alleged to be in, breach or default under, nor
is there or is there alleged to be any basis for termination of, any
of the Transferred Agreements and no other party to any of the
Transferred Agreements has materially breached or defaulted
thereunder, and no event has occurred and no condition or state of
facts exists which, with the passage of time or the giving of notice
or both, would constitute such a default or breach by Symantec or by
any such other party. Symantec is not currently renegotiating any of
the Transferred Agreements or paying liquidated damages in lieu of
performance thereunder.
Section 4.12 No Violation, Litigation or Regulatory Action.
Except as set forth in Section 4.12 of the Disclosure Letter, (i) the Assets
and their uses comply in all material respects with all applicable
Requirements of Laws and Court Orders; (ii) Symantec has complied in all
material respects with all Requirements of Laws and Court Orders which are
applicable to the Assets or the Products Business; (iii) there are no lawsuits,
claims, suits, proceedings or investigations pending or threatened against or
affecting Symantec in respect of the Assets or the Products Business nor is
there any known basis for any of the same, and there are no lawsuits, suits or
proceedings pending in which Symantec is the plaintiff or claimant and which
relate to the Assets or the Products Business; and (iv) there is no action,
suit or proceeding pending or threatened which questions the legality of the
transactions contemplated by this Agreement.
Section 4.13 Environmental Matters:
(a) Condition Of The Company's Property: (i) To
Symantec's knowledge, no Hazardous Materials are or are will be
present in the soil or groundwater of the Symantec Property and (ii)
no Hazardous Material is present in building materials, indoor air or
outdoor air of the Symantec Property in violation of applicable Law.
(b) Compliance With Environmental Laws: To Symantec's
knowledge, prior to the Closing, all Hazardous Materials Activities
conducted on or about the Symantec Property by Symantec or its agent,
employees, contractors or subsidiaries have been conducted in
accordance with all applicable Environmental Laws and Environmental
Permits and all Hazardous Material waste generated at the Symantec
Property or as a consequence of the Products Business has been
transferred to Disposal Facilities where it has been recycled,
destroyed or disposed of in accordance with applicable Law. No claim
has been or is pending or threatened against Symantec or any such
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Disposal Site in connection with such transferred Hazardous Material
waste.
(c) Permits: There are no Environmental Permits which are
a Requirement of Laws for the conduct of the Products Business as
presently conducted.
(d) Environmental Claims: Symantec has not received any
notice from governmental authority or other Person (i) ordering an
investigation or remediation of any Hazardous Material presently on or
about the Symantec Property, (ii) imposing any new covenant,
requirement, or condition pursuant to any Environmental Law or
Environmental Permit with respect to the Products, (iii) making any
claim for Loss or Expense based on an exposure of any person to a
Hazardous Material as a consequence of a Hazardous Material Activity
on or about the Symantec Property or a Hazardous Material Activity
conducted in the course of the Products Business, (iv) except to the
extent remedied to the satisfaction of applicable Governmental Bodies,
asserting that any Hazardous Material Activity of the Products
Business has violated or failed to fulfill the requirements of any
Environmental Law or Environmental Permit or has damaged the
environment, or (v) asserting that Symantec is liable with respect to
any Disposal Site to which Hazardous Materials generated by the
Products Business or from the Symantec Property have been transported.
(e) Environmental Liabilities: Symantec has provided HP
with copies of all material records of the Hazardous Materials
Activities of the Products Business required by HP for the conduct of
the Products Business after the Closing and all environmental
assessments of the Symantec Property. To Symantec's knowledge, there
is no fact or circumstance affecting the Symantec Property or the
Products Business which is likely to involve HP or the Products
Business in any environmental litigation or impose any material
environmental liability upon HP with respect to the Products Business
after the Closing.
Section 4.14 Financial Statements and Records.
(a) True and correct copies of the following have been
delivered by Symantec to HP, with respect to the Products Business:
(i) the budgets for capital expenditure, payroll and other
expenditures of Symantec with respect to the Products Business for the
fiscal years ending March 1997 and 1998 (if available), (ii) books and
records of the Products Business, including but not limited to
management and operational reports used in accounting and reporting
for the Products Business and the Assets, and (iii) any cost
information specifically related to the Products Business.
(b) With respect to Section 4.14(a)(ii) above, carrying
values for Assets have been stated in accordance with Generally
Accepted Accounting Principles, including without limitation any
necessary reserves for depreciation, amortization and write downs for
impairment, damage or obsolescence.
Section 4.15 No Undisclosed Liabilities. There are no obligations
or liabilities (whether absolute, accrued, contingent or otherwise), other than
the Assumed Liabilities, of Symantec relating to any of the Assets or the
Products Business, except obligations, liabilities or contingencies which are
set forth in the Disclosure Letter.
Section 4.16 Employee Agreements. To Seller's knowledge, no
employee of Symantec engaged in the Products Business is in violation of any
term of any employment contract (whether written or verbal),
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patent disclosure agreement, invention assignment agreement, confidentiality
agreement or any other contract or agreement relating to the relationship of
any such employee with Symantec or any other party (including prior employers)
because of the nature of the Products Business now conducted or now proposed to
be conducted by Symantec. Each current and former employee, consultant or
other contracting party who contributed or is contributing to the Intellectual
Property of the Assets has executed an Invention Assignment, Trade Secrets and
Non- Disclosure Agreement with Symantec in the form then being used by
Symantec, all of which forms have been previously delivered to HP by Symantec.
Section 4.17 Interests of Employees. None of Symantec's officers,
directors or employees has any interest in any property, real or personal,
tangible or intangible, used in or pertaining to the Products Business,
including any interest in the Intellectual Property of the Assets.
Section 4.18 No Finder. Neither Symantec nor any Person acting on
its behalf has paid or become obligated to pay any fee or commission to any
broker, finder or intermediary for or on account of the transactions
contemplated by this Agreement.
Section 4.19 Government Contracts. None of the Transferred
Agreements is a Government Contract.
Section 4.20 Assets.
(a) Exhibit A-1 contains a complete and accurate
description of all products, components, build system projects,
Marketing Information for the Products and the Work-in-Progress.
(b) The currently shipping versions of the Assets have
undergone and passed Symantec's standard checking procedures for known
software viruses and the currently shipping versions of the Assets do
not contain any known viruses, or any viruses created by Symantec
employees, which would disrupt, damage, or interfere with the use of
such versions.
(c) Symantec has not disclosed the source code for any of
the Assets or other confidential or proprietary information
constituting embodied in or pertaining to the Assets to any Person and
has used diligent efforts to prevent such disclosure, other than
disclosure of such source code to employees or independent contractors
of Symantec, or third parties solely for evaluation purposes, in each
case pursuant to valid and binding nondisclosure agreements with such
Persons which are in full force and effect.
(d) The Assets and the rights granted under the License
Agreement are all the rights and intangible assets primarily used for
and necessary to operate the Products Business and are all the
tangible assets primarily used for the Products Business.
Section 4.21 Disclosure. None of the representations or
warranties of Symantec contained herein and none of the information contained
in the Schedules hereto or the Disclosure Letter is false or misleading in any
material respect or omits to state a fact herein or therein necessary to make
the statements herein or therein not misleading in any material respect in
light of the circumstances in which they were made.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF HP
As an inducement to Symantec to enter into this Agreement and to
consummate the transactions contemplated hereby, HP hereby represents and
warrants to Symantec and agrees as follows:
Section 5.1 Organization of HP. HP is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California, is duly qualified to transact business in each of the jurisdictions
in which the ownership or leasing of the Assets or the conduct of the Products
Business pursuant to this Agreement requires such qualification, and has full
corporate power and authority to own or lease and to operate and use its
properties and assets and to carry on its business as now conducted and as now
proposed to be conducted pursuant to this Agreement. HP has delivered to
Symantec complete and correct copies of the Articles of Incorporation and
Bylaws of HP, in each case as amended to the date of this Agreement.
Section 5.2 Authority of HP.
(a) HP has full power and authority to execute, deliver
and perform this Agreement and all of the HP Ancillary Agreements and
to consummate the transactions contemplated hereby and thereby. The
execution, delivery and performance of this Agreement and the HP
Ancillary Agreements by HP have been duly and validly authorized and
approved by the Executive Committee of the Board of Directors of HP,
and do not require any further authorization or consent of HP or its
shareholders. This Agreement has been duly authorized, executed and
delivered by HP and is the legal, valid and binding agreement of HP
enforceable in accordance with its terms, except (a) as such
enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights, and (b) as the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought, and each of the HP Ancillary
Agreements has been duly authorized by HP and upon execution and
delivery by HP will be a legal, valid and binding obligation of HP
enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement
or any of the HP Ancillary Agreements or the consummation of any of
the transactions contemplated hereby or thereby nor compliance with or
fulfillment of the terms, conditions and provisions hereof or thereof
will: (i) violate, conflict with, result in a breach of the terms,
conditions or provisions of, or constitute a default, an event of
default or an event creating rights of acceleration, termination or
cancellation or a loss of rights under (A) the Articles of
Incorporation or Bylaws of HP, (B) any material note, instrument,
agreement, mortgage, lease, license, franchise, permit or other
authorization, right, restriction or obligation to which HP is a party
or any of its properties is subject or by which HP is bound, (C) any
Court Order to which HP is a party or by which it is bound or (D) any
Requirements of Laws affecting HP; or (ii) except for the HSR Filing,
require the approval, consent, authorization or act of, or the making
by HP of any declaration, filing or registration with, any Person,
including without limitation, obtaining any Governmental Permit other
than those Governmental Permits listed in Section 4.5 of the
Disclosure Letter.
Section 5.3 No Finder. Neither HP nor any Person acting on its
behalf has paid or become
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obligated to pay any fee or commission to any broker, finder or intermediary
for or on account of the transactions contemplated by this Agreement.
Section 5.4 Intention of HP to Market and Distribute. It is the
intention of HP to market and distribute the Products within the United States
as well as outside of the United States.
ARTICLE 6
[INTENTIONALLY OMITTED]
ARTICLE 7
ADDITIONAL AGREEMENTS
Section 7.1 Covenants of Symantec Relating to Conduct Prior to
the Closing. During the period from the date of this Agreement and continuing
until the Closing, Symantec agrees (except as expressly provided in this
Agreement or to the extent that HP shall otherwise consent in writing) that
Symantec shall:
(a) not sell, lease, otherwise dispose of or create any
Encumbrance on, or permit to be sold, leased, otherwise disposed of or
created any Encumbrance (except Permitted Encumbrances) on, all or any
part of the Assets;
(b) conduct the Products Business in the ordinary course
consistent with past practice;
(c) use the Assets in the usual, regular and ordinary
course and in substantially the same manner as heretofore used;
(d) not sell or license NAN, NDA or Expose unless the
terms of such sale or license are in all material respects the same as
sales or licenses heretofore granted by Symantec to its customers or
are in the ordinary course of the Products Business consistent with
past practice;
(e) make payments incurred or owed in connection with the
Products Business when due in the ordinary course, and perform its
obligations under the leases, contracts, commitments and other
agreements of the Products Business, including under the Transferred
Agreements;
(f) maintain insurance against loss or damage to the
Assets and such other insurance with respect to the Assets as has
heretofore been maintained;
(g) not enter into any employment or consulting contract
with any employee of the Products Business, increase any such
employee's compensation inconsistent with past practice, or create or
modify any benefit plan to which any such employee is a beneficiary;
(h) use commercially reasonable efforts to keep available
the services of the present employees of the Products Business;
(i) not enter into any agreement material to the Assets;
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(j) not waive any material claims or rights of the
Products Business; and
(k) not grant any options to purchase or sell any options
to purchase or sell any capital stock of Symantec to any New HP
Regular Personnel.
Section 7.2 Access; Due Diligence Completion. Between the date
of this Agreement and the Closing Date, Symantec, subject to the CDA, shall (a)
give HP and its authorized representatives reasonable access during normal
working hours and, if reasonably requested, on weekends to the Assets and to
such of Symantec's facilities and properties and its books and records as
relate to the Business, (b) permit HP to make inspections thereof, and (c)
cause its officers, employees and advisors to furnish HP with such financial
and operating data and other information with respect to the Business and to
discuss the Business with HP and its authorized representatives, all as HP may
from time to time reasonably request.
Section 7.3 Satisfaction of Legal Conditions to Closing. Each of
Symantec and HP will take all reasonable actions necessary to comply promptly
with all legal requirements which may be imposed on it with respect to the
Closing and will promptly cooperate with and furnish information to each other
in connection with any such legal requirements. Each of Symantec and HP will
take all reasonable actions necessary to obtain (and will cooperate with each
other in obtaining) any consent, authorization, permit, order or approval of,
or any exemption by, any Person, required to be obtained in connection with any
of the transactions contemplated by this Agreement.
Section 7.4 [INTENTIONALLY LEFT BLANK]
Section 7.5 Employment Matters.
(a) Prior to Closing, HP will offer employment to all
individuals who are Regular Personnel and who are identified on
Schedule 7.5hereto with such employment to become effective (the "New
Employment Start Time") on the first business day after the Closing
Date, and to be contingent upon the consummation of the transactions
contemplated by this Agreement. Symantec and HP agree to select a
mutually agreeable payroll and benefit coverage transition date.
(b) Symantec shall terminate each Regular Personnel,
other than the seven employees listed in Section 7.5(f) below, who has
accepted (which acceptance has not been withdrawn) an offer of
employment extended pursuant to Section 7.5(a) above on and as of the
Closing Date, such termination to be deemed effective as of 11:59 p.m.
Pacific Daylight Time on the Closing Date. Symantec agrees that all
such Regular Personnel will complete their workdays at the close of
business on the Closing Date. HP will hire effective as of the New
Employment Start Time, on an "at will" basis and subject to HP's
terms, conditions and policies of employment, including without
limitation those set forth in the offer letters from HP to each of the
Regular Personnel, each of the Regular Personnel who are terminated by
Symantec on the Closing Date pursuant to the foregoing sentence. HP
reserves the right to redefine job content or position description of
any employee. Nothing contained in this Section 7.5 is intended or
shall be deemed to (i) require HP to employ such persons for any fixed
or predetermined time after the Closing, or (ii) confer upon any
employee of Symantec, past, present, or future, any rights of
employment of any nature, it being understood and agreed that the
provisions of this Section 7.5 are intended to set forth an agreement
between HP and Symantec, and are not intended to benefit any persons
not party to this Agreement, including
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such employees. Regardless of the date of the Closing, Symantec will
pay (i) any bonuses due to each of the New HP Regular Personnel and
the Technical Support People for Symantec's fiscal 1997 fourth quarter
and fiscal 1998 first quarter (any bonus pertaining to the fiscal 1998
first quarter shall be prorated for the employee's actual period of
employment with Symantec during such quarter) on the same date that
Symantec pays its other employees not engaged in the Business their
bonuses for such quarters, and (ii) on the Closing Date, all vacation
pay accrued and other earned benefits as of the Closing Date due to
each of the New HP Regular Personnel.
(c) With respect to those employees of the Business to
whom HP chooses not to extend offers of employment, as more fully
described in the Transition Agreement, either (i) if Symantec chooses
to keep those employees on its payroll, Symantec shall provide the
services of those employees as set forth in the Transition Agreement,
or (ii) if Symantec terminates those employees at the Closing, HP may
attempt to engage the services, on a contract basis, of those
individuals, in either case for a period of two to six months after
the Closing Date until HP's release of "Big Bang" products.
(d) Symantec will not solicit any of the (i) New HP
Regular Personnel for a period of two years after the Closing Date,
and (ii) HP contractors that were Symantec employees or contractors
prior to the Closing, if any, for their respective periods of service
after the Closing, but in any event no more than two years; provided,
that this restriction shall not apply if HP were to terminate any of
the New HP Regular Personnel or contractors after the Closing.
(e) HP acknowledges that under the CDA, HP may use
Symantec confidential information disclosed under the CDA only for the
purpose of evaluating a potential acquisition of certain assets of the
Business during the confidentiality period of the CDA. HP
acknowledges that, under the CDA, disclosed Symantec confidential
information includes confidential information about Symantec employees
that remain Symantec employees after the Transition Period, even if
known by the Symantec employees that become HP employees during the
Transition Period. HP further acknowledges that, under the CDA, use
of such confidential information by HP for the purpose of direct
solicitation of any of the remaining Symantec employees would be
outside the scope of the rights granted under the CDA.
(f) The following Symantec employees are affected by visa
issues that may delay the commencement of their employment with HP
should new visas reflecting their proposed new employment status not
issue by the Closing Date: Xxxx Xx, Xxxxxx Xx, Swee Xxxx Xxx, Xxxxxx
Xxxxx, Xxxxxxxx Xxxxx, Xxxxxxx Xxx and Xxxxxx Xxxxx. These seven
individuals shall remain employees of Symantec for a period of time
after the Closing Date, anticipated to be approximately 30- 60 days,
necessary for issuance of new visas reflecting their proposed new
employment status. Upon resolution of such matters, their employment
with HP shall commence as promptly as practicable for HP. HP shall be
responsible by direct payment for the reasonable fees and costs
associated with the issuance of new visas. HP will reimburse Symantec
for the (i) base pay, and (ii) pro rata benefits cost calculated at
the rate of 34% of base pay, for such employees for the period, if
any, beginning the day after the Closing Date, through and including
the day prior to the date of their commencement of employment at HP,
in an aggregate daily amount not to exceed $2,000 per individual. On
the same date in August 1997 that Symantec pays any bonuses for its
first quarter of fiscal 1998 to its standard, full-time employees,
Symantec shall pay directly to each of these seven individuals the
appropriate pro rata portion of any bonuses due to them for such
fiscal quarter. On
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their respective termination dates, Symantec will also pay all
vacation pay accrued and other earned benefits as of their respective
termination dates to each of these seven individuals.
Section 7.6 Taxes. Symantec shall be responsible for and pay
when due (i) all Taxes attributable, levied or imposed upon or incurred in
connection with the Assets or the Business (pertaining to the period (or that
portion of any period) ending on or prior to the Closing Date). Symantec
agrees to continue to timely file within the time period for filing, or any
extension granted with respect thereto, all Tax Returns it is required to file
in connection with the Assets or the Business, and such Tax Returns shall be
true and correct and completed in accordance with applicable laws.
Section 7.7 Discharge of Symantec's Liabilities. Symantec
covenants and agrees that it will pay and discharge, and hold HP harmless from,
each and every liability and obligation of Symantec in respect of the Business
or the Assets arising from events occurring on or prior to the Closing Date, it
being understood and agreed that HP is assuming no liabilities or obligations
of Symantec other than the "Assumed Liabilities."
Section 7.8 Support. HP shall provide support to the Products'
Business support contract customers and will, as more fully described in the
Transition Agreement, provide such support by contracting with Symantec for the
services of the appropriate Symantec technical support people in Eugene,
Oregon, Leiden, Holland and Melbourne, Australia (collectively, the "Technical
Support People") during a Transition Period (as defined in the Transition
Agreement). HP may directly solicit the Technical Support People in North
America during the Transition Period for possible employment to commence at
the end of the Transition Period. At the end of the Transition Period, HP
shall provide to Symantec an amount equal to the retention benefit agreed upon
by HP and Symantec for some of the Technical Support People, as stated in
letters from Symantec to those people. After the Transition Period, HP will
provide comparable support for any remaining term of the Products Business'
outstanding support contracts between Symantec and its customers.
Section 7.9 Upgrade Insurance. For Symantec's customers with
upgrade insurance agreements in effect as of the Closing Date, HP will provide,
at no charge, any major release of "Big Bang" from the Closing Date through the
coverage lapse date (not to exceed one year from the Closing Date) of the
relevant upgrade insurance agreement. Thereafter, HP shall provide any
upgrades and updates to all of the Products Business' customers pursuant to
HP's terms and conditions.
Section 7.10 Sublease. HP agrees to enter into a written sublease
agreement with Symantec and the landlord of the Leased Premises in the form of
Exhibit F hereto to become effective at the Closing Date.
Section 7.11 License Agreement. Symantec and HP agree to enter
into the License Agreement in the form of Exhibit D hereto to become effective
at the Closing Date.
Section 7.12 pcANYWHERE OEM Agreement. Symantec and HP agree to
enter into the PcANYWHERE OEM Agreement in the form of Exhibit B hereto to
become effective at the Closing Date, relating to the product known as
"pcANYWHERE."
Section 7.13 Transition OEM Agreement. Symantec and HP agree to
enter into the Transition OEM Agreement in the form of Exhibit E hereto to
become effective at the Closing Date.
Section 7.14 HSR Filings. Each of Symantec and HP agree to use
commercially reasonable
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efforts to cooperate with each other in preparing and filing a Premerger
Notification and Report Form with the Premerger Notification Office of the
Federal Trade Commission and the Antitrust Division of the United States
Department of Justice (the "HSR Filing") and in obtaining all required
regulatory approvals, clearances and expirations of waiting periods.
Section 7.15 Consent to Use of Certain Marks. Symantec will not
object to or attack HP's adoption, use or registration of the following marks
or combination of marks: "Administrator for Networks," "Desktop Administrator,"
"Expose," "NAN" or "NDA." Symantec agrees to furnish HP with a letter of
consent for any xxxx permitted above, if so requested by HP, in any country in
which Symantec is the senior party. HP agrees it receives no right under this
Agreement to register as marks the names "Norton" or "Symantec."
Section 7.16 Termination of Certain Agreements. The Software
License Agreement dated August 23, 1996 and the OEM Agreement effective June 1,
1994, as amended by the First Amendment to OEM Agreement effective February 1,
1996, each by and among Symantec, Symantec Limited and HP, shall be terminated
automatically on the Closing Date.
Section 7.17 Certificate. Symantec shall deliver to HP a
certificate or certificates, dated the Closing Date and signed on behalf of
Symantec by an authorized officer of Symantec, stating that each of the
representations and warranties of Symantec contained or referred to herein and
in the Symantec Ancillary Agreements shall be true and correct in all material
respects on the Closing Date as though made on the Closing Date, except for
changes therein specifically permitted by this Agreement or resulting from any
transaction expressly consented to in writing by HP or any transaction
contemplated by this Agreement.
Section 7.18 I-9s. On or prior to the Closing Date, Symantec
shall deliver to HP a correct and complete original U.S. Department of Justice
Form I-9, Employment Eligibility Verification, for each HP New Regular
Personnel for whom such a form is required by U.S. law.
ARTICLE 8
CONDITIONS PRECEDENT TO OBLIGATIONS OF HP
The obligations of HP under this Agreement shall, at the option of HP,
be subject to the satisfaction, on or prior to the Closing Date, of the
following conditions.
Section 8.1 No Misrepresentation or Breach of Covenants and
Warranties. None of the representations and warranties of Symantec contained
or referred to herein and in the Symantec Ancillary Agreements shall be untrue
or incorrect in any material respect on the Closing Date so that, either
individually or in the aggregate, any such breach or inaccuracy results in a
material adverse effect on the Products Business or the Assets, except for
changes therein specifically permitted by this Agreement or resulting from any
transaction expressly consented to in writing by HP or any transaction
contemplated by this agreement; and there shall have been delivered to HP a
certificate or certificates to such effect, dated the Closing Date, signed on
behalf of Symantec by an authorized officer of Symantec.
Section 8.2 No Restraint or Litigation. No action, suit,
investigation or proceeding shall have been instituted or threatened to
restrain or prohibit or otherwise challenge the legality or validity of the
transactions contemplated hereby and there shall have been delivered to HP a
certificate or certificates to
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such effect, dated the Closing Date, signed on behalf of Symantec by an
authorized officer of Symantec.
Section 8.3 Necessary Governmental Approvals. The parties shall
have received all approvals and actions of or by all Governmental Bodies which
are necessary to consummate the transactions contemplated hereby, which are
either specified in Section 4.2 of the Disclosure Letter or otherwise required
to be obtained prior to the Closing by applicable Requirements of Law; and
there shall have been delivered to HP a certificate or certificates to such
effect, dated the Closing Date, signed on behalf of Symantec by an authorized
officer of Symantec.
Section 8.4 Necessary Consents. Symantec shall have received
consents, in form and substance reasonably satisfactory to HP, to the
transactions contemplated hereby from the other parties to all contracts,
leases, agreements and permits to which Symantec is a party or by which
Symantec or any of the Assets is affected and which are specified in Section
4.2 of the Disclosure Letter, and there shall have been delivered to HP a
certificate or certificates to such effect, dated the Closing Date, signed on
behalf of Symantec by an authorized officer of Symantec.
Section 8.5 Employees. At least 80% of Category A employees and
60% of Category B employees listed in Schedule 7.5 shall have accepted (which
acceptances shall not have been withdrawn) offers of employment by HP extended
as contemplated by Section 7.5 above.
Section 8.6 No Material Adverse Change. There shall have been no
material adverse change in the Products Business or the Assets from the date
hereof through the Closing Date.
Section 8.7 Execution of Symantec Ancillary Agreements. Symantec
shall have executed and delivered to HP all of the Symantec Ancillary
Agreements.
Section 8.8 Opinion of Symantec's Counsel. HP shall have
received an opinion of Symantec's counsel, dated the Closing Date, in
substantially the form of Exhibit H hereto.
Section 8.9 Trio. Symantec shall have received a full and
complete release and an assignable license from Trio Systems LLC ("Trio"), each
in form and substance satisfactory to HP.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS OF SYMANTEC
The obligations of Symantec under this Agreement shall at the option
of Symantec, be subject to the satisfaction, on or prior to the Closing Date,
of the following conditions:
Section 9.1 No Misrepresentation or Breach of Covenants and
Warranties. Each of the representations and warranties of HP contained or
referred to in this Agreement and the HP Ancillary Agreements shall be true and
correct in all material respects on the Closing Date as though made on the
Closing Date, except for changes therein specifically permitted by this
Agreement or resulting from any transaction expressly consented to in writing
by Symantec or any transaction contemplated by this Agreement; and there shall
have been delivered to Symantec a certificate or certificates to such effect,
dated the Closing Date and signed on behalf of HP by an authorized
representative of HP.
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Section 9.2 No Restraint or Litigation. No action, suit or
proceeding by any Governmental Body shall have been instituted or threatened to
restrain, prohibit or otherwise challenge the legality or validity of the
transactions contemplated hereby; and there shall have been delivered to
Symantec a certificate or certificates to such effect, dated the Closing Date
and signed on behalf of HP by an authorized representative of HP.
Section 9.3 Necessary Governmental Approvals. The parties shall
have received all approvals and actions of or by all Governmental Bodies
necessary to consummate the transactions contemplated hereby, which are
required to be obtained prior to the Closing by applicable Requirements of
Laws; and there shall have been delivered to Symantec a certificate or
certificates to such effect, dated the Closing Date and signed on behalf of HP
by an authorized representative of HP.
Section 9.4 Execution of HP Ancillary Agreements. HP shall have
executed and delivered to Symantec the HP Ancillary Agreements to which
Symantec and HP are parties.
ARTICLE 10
INDEMNIFICATION
Section 10.1 Indemnification by Symantec. Symantec agrees to
indemnify and hold harmless each HP Group Member from and against any and all
Losses and Expenses incurred by such HP Group Member in connection with or
arising from:
(a) any breach by Symantec of any of its covenants in
this Agreement, any Symantec Ancillary Agreement, Exhibit or Schedule;
(b) any breach of any warranty or the inaccuracy of any
representation of Symantec contained or referred to in this Agreement,
any Symantec Ancillary Agreement (other than the pcANYWHERE OEM
Agreement), Exhibit or Schedule or any document or certificate
delivered by or on behalf of Symantec pursuant hereto, other than the
representations set forth in Section 4.8(h)(ii) of this Agreement,
Section 7.3 of the License Agreement and as the substance thereof may
appear elsewhere in this Agreement or any Symantec Ancillary Agreement
(other than the pcANYWHERE OEM Agreement), Exhibit or Schedule or any
document or certificate delivered by or on behalf of Symantec pursuant
hereto;
(c) any failure of Symantec to obtain prior to the
Closing any consent required under Section 4.2;
(d) any liabilities, obligations or commitments of or any
claims against Symantec, including without limitation arising from
Symantec's operation of the Business;
(e) any breach of any warranty or the inaccuracy of any
representation of Symantec contained or referred to in Section
4.8(h)(ii) of this Agreement, Section 7.3 of the License Agreement and
as the substance thereof may appear elsewhere in this Agreement or any
Symantec Ancillary Agreement (other than the pcANYWHERE OEM
Agreement), Exhibit or Schedule or any document or certificate
delivered by or on behalf of Symantec pursuant hereto; or
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(f) the Trio, Simba and Xxxx Xxxx matters disclosed in
the Disclosure Letter.
Section 10.2 Indemnification by HP. HP shall indemnify and hold
harmless Symantec from and against any and all Losses and Expenses incurred by
it in connection with, arising from, relating to or resulting from:
(a) any breach by HP of any of its covenants in this
Agreement, any HP Ancillary Agreement, Exhibit or Schedule; or
(b) any breach of any warranty or the inaccuracy of any
representation of HP contained or referred to in this Agreement, any
HP Ancillary Agreement, Exhibit, Schedule or any document or
certificate delivered by or on behalf of HP pursuant hereto.
Section 10.3 Limitation of Indemnification.
(a) Except for any Losses related to Trio, the
liabilities and obligations of Symantec arising under this Article 10
shall commence only following the incidence of Losses aggregating
$150,000, following which all claims starting from the first dollar
shall be recoverable as provided in this Agreement. The aggregate
amount of the liabilities and obligations of Symantec with respect to
any indemnification claim made pursuant to Section 10.1(a), (b), (c),
(d) or (f) above shall not exceed the Purchase Price, except that with
respect to Section 10.1(e) above, the aggregate amount shall not
exceed $5,000,000. Any claim must be made against Symantec pursuant
to this Article 10 on or prior to the date which is three years after
the date of the last payment constituting part of the Purchase Price,
except that (i) with respect to the breach of any warranty contained
in Section 4.3, the period of time during which such a claim may be
made shall terminate at the end of the relevant statutory time period,
and (ii) with respect to claims made with respect to the breach of any
warranty contained in Section 4.8 or 4.20, there shall be no time
limit.
(b) The liabilities and obligations of HP and any HP
Group Member arising under this Article 10 shall commence only
following the incidence of Losses (incurred by any and all Indemnified
Parties) aggregating $150,000, following which all claims starting
from the first dollar shall be recoverable as provided in this
Agreement. The aggregate amount of the obligations of HP and any HP
Group Member with respect to any indemnification claim made pursuant
to Section 10.2 shall not exceed $3 million. A claim must be made
against HP or any HP Group Member pursuant to this Article 10 on or
prior to the date which is one year after the date of the last payment
constituting part of the Purchase Price.
Section 10.4 Notice of Claims. Symantec or any HP Group Member
(the "Indemnified Party") seeking indemnification hereunder shall give to HP or
Symantec, as appropriate (or its successors and assigns) (the "Indemnitor"), a
notice (a "Claim Notice") describing in reasonable detail the facts giving rise
to any claim for indemnification hereunder and shall include in such Claim
Notice the amount of such claim, and a reference to the provision of this
Agreement or any other agreement, document or instrument executed hereunder or
in connection herewith upon which such claim is based; provided, that a Claim
Notice in respect of any action at law or suit in equity by or against a third
Person as to which indemnification will be sought shall be given promptly after
the action or suit is commenced; provided further that failure to give such
notice shall not relieve the Indemnitor of its obligations hereunder except to
the extent it shall have been materially prejudiced by such failure.
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Section 10.5 Third Person Claims.
(a) If any third Person claim, action or suit is made
against an Indemnified Party, the Indemnified Party will be entitled
to control the defense thereof. The Indemnitors will (i) reasonably
cooperate in connection with the defense of a third Person claim, and
(ii) not admit any liability with respect to, or settle, compromise or
discharge any third Person claim without the Indemnified Party's prior
written consent. The Indemnitors shall be entitled to participate in,
but not control, such defense with their own counsel at their own
expense.
(b) Reimbursement of Losses or Expenses in connection
with a settlement shall be in accordance with Sections 10.5(c) and
10.6 below.
(c) The Indemnified Party will not settle, compromise or
discharge any third Person claim without the consent of the
Indemnitors, which consent shall not be unreasonably withheld. In the
event the Indemnitors and the Indemnified Party cannot agree on a
settlement, compromise or discharge of any third Person claim, the
Indemnified Party may settle, compromise or discharge the third Person
claim without such consent; provided, however, that, if the
Indemnitors dispute the Indemnified Party's claim for indemnification
of the settled claim, such dispute shall be resolved in accordance
with Section 10.6 below.
Section 10.6 Dispute Resolution. In the event the Indemnitors
dispute the Indemnified Party's claim for indemnification of a third Person
claim that the Indemnified Party settles without the consent of the
Indemnitors, prior to filing any claims in a court of law or to submitting the
dispute to binding arbitration, the parties shall in good faith first negotiate
a written resolution of such dispute or claim for a period not to exceed
fifteen days from the date of receipt of a party's request for such
negotiation. Such negotiation shall be conducted between Symantec and managers
of HP who have authorization to resolve any such dispute or claim. In the
event the parties cannot negotiate a written resolution to such dispute or
claim during this fifteen-day negotiation period, and prior to filing any claim
in a court of law or submitting the dispute to binding arbitration, the parties
shall then submit such dispute or claim to nonbinding mediation with Judicial
Arbitration & Mediation Services ("JAMS"). The mediation may be initiated by
the written request of either party to the other party, shall commence within
fifteen (15) days of receipt of such notice and shall be conducted in
accordance with the standard mediation procedures established by JAMS, unless
otherwise agreed by the parties. The mediation shall not exceed a period of
thirty (30) days. In the event the parties do not resolve such dispute or
claim as a result of such mediation or in the event such dispute or claim is
not resolved within three months, either party may seek to resolve the dispute
or claim in a court of competent jurisdiction or seek other legal or equitable
resolution. The judgment or decree of a court shall be deemed final when the
time for appeal, if any, shall have expired and no appeal shall have been taken
or when all appeals taken shall have been finally determined. The costs of
resolving the dispute, including reasonable attorneys' fees and expenses, shall
be borne by the losing parties.
Section 10.7 Setoff. HP shall be entitled to set-off the amount
of any claim reasonably submitted in good faith under Section 10.1 as damages
or by way of indemnification against any other amounts payable by HP to
Symantec whether under this Agreement or otherwise as HP's sole monetary
remedy. Where the claim by HP relates to amounts paid or payable currently by
HP, HP may set off such amounts against the amounts next due and payable in
respect of the Purchase Price.
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ARTICLE 11
TERMINATION
Section 11.1 Termination. Anything contained in this Agreement to
the contrary notwithstanding, this Agreement may be terminated at any time
prior to the Closing Date:
(a) by the mutual consent of HP and Symantec;
(b) by HP or Symantec if the Closing shall not have
occurred on or before May 31, 1997 (or such later date as may be
mutually agreed to by HP and Symantec);
(c) by HP in the event of (i) any material breach by
Symantec of any of the representations, warranties, covenants or
agreements of Symantec contained herein, (ii) the failure of Symantec
to cure such breach within fourteen (14) days after receipt of notice
from HP requesting such breach to be cured, and (iii) the breach
resulting in a material adverse effect on the Products Business or the
Assets; or
(d) by Symantec in the event of any material breach by HP
of any of HP's representations, warranties, covenants or agreements
contained herein and the failure of HP to cure such breach within
fourteen (14) days after receipt of notice from Symantec requesting
such breach to be cured.
Section 11.2 Notice of Termination. Any party desiring to
terminate this Agreement pursuant to Section 11.1 above shall give notice of
such termination to the other parties to this Agreement.
Section 11.3 Effect of Termination. In the event that this
Agreement shall be terminated pursuant to this Article 11, all further
obligations of the parties under this Agreement (other than Sections 12.2, 12.3
and 12.10) shall be terminated without further liability of any party to the
other, provided that nothing herein shall relieve any party from liability for
its willful breach of this Agreement.
ARTICLE 12
GENERAL PROVISIONS
Section 12.1 Survival of Obligations. All representations,
warranties, covenants and obligations contained in this Agreement shall survive
the consummation of the transactions contemplated by this Agreement for the
relevant indemnification periods set forth in Article 10 above. The respective
representations and warranties of each party hereto contained herein shall not
be deemed waived or otherwise affected by any investigation made by the other
party hereto and shall survive the Closing.
Section 12.2 Confidential Information. Symantec agrees that it
will protect HP confidential information acquired from Symantec under this
Asset Purchase Agreement for a period of five years from the Closing Date by
using the same degree of care, but no less than a reasonable degree of care, to
prevent the unauthorized use, dissemination, or publication of the HP
confidential information as Symantec uses to protect its own confidential
information of a like nature.
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Section 12.3 No Public Announcements. Except as heretofore made
and subject to the CDA, neither HP nor Symantec shall, without the approval of
the other, make any press release or other public announcement concerning the
transactions contemplated by this Agreement, except as and to the extent that
any such party shall be so obligated by law, in which case the other party
shall be advised and the parties shall use their reasonable efforts to cause a
mutually agreeable release or announcement to be issued; provided that the
foregoing shall not preclude communications or disclosures necessary to
implement the provisions of this Agreement or to comply with accounting and
Securities and Exchange Commission disclosure obligations.
Section 12.4 Notices. Any notice given hereunder shall be in
writing and shall be deemed to have been received: (i) in the case of personal
delivery, on the date of such delivery; (ii) in the case of facsimile
transmission, on the date on which the sender receives confirmation by
facsimile transmission that such notice was received by the addressee, provided
that a copy of such transmission is additionally sent by mail as set forth
below; (iii) in the case of overnight air courier, on the second business day
following the day sent, with receipt confirmed by the courier; and (iv) in the
case of mailing by first class certified or registered mail, postage prepaid,
return receipt requested, on the fifth business day following such mailing and
should be addressed as follows:
If to HP, to:
Hewlett-Packard Company
0000 Xxxxxxx Xx.
X/X 00XX
Xxxx Xxxx, XX 00000-0000
Attention: Director, Corporate Development
Facsimile: 000-000-0000
with a copy to:
Hewlett-Packard Company
0000 Xxxxxxx Xxxxxx, XX: 20BQ
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: 000-000-0000
If to Symantec, to
Symantec
Symantec Corporation
00000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Senior Vice President, Corporate Development
Facsimile: 000-000-0000
with a copy to:
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Symantec Corporation
00000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Vice President and General Counsel
Facsimile: 000-000-0000
or to such other address as such party may indicate by a notice delivered to
the other parties hereto.
Section 12.5 Successors and Assigns.
(a) The rights of either party under this Agreement shall
not be assignable by such party hereto prior to the Closing without
the written consent of the other, except that the rights of HP
hereunder may be assigned prior to the Closing, without the consent of
Symantec, to any corporation all of the outstanding capital stock of
which is owned or controlled by HP, provided, that the assignee shall
assume in writing all of HP's obligations to Symantec hereunder;
provided, further, that HP shall be obligated to pay the balance of
any portion of the Purchase Price that Symantec is entitled to receive
pursuant to the terms of this Agreement and which the assignee fails
to pay. Following the Closing, either party may assign any of its
rights hereunder, but no such assignment shall relieve it of its
obligations hereunder.
(b) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors and permitted
assigns. The successors and permitted assigns hereunder shall include
without limitation, in the case of HP, any permitted assignee as well
as the successors in interest to such permitted assignee (whether by
merger, liquidation (including successive mergers or liquidations) or
otherwise. Nothing in this Agreement, expressed or implied, is
intended or shall be construed to confer upon any Person other than
the parties and successors and assigns permitted by this Section 12.5
any right, remedy or claim under or by reason of this Agreement.
Section 12.6 Access to Records After Closing.
(a) For a period of three (3) years after the Closing
Date, HP and its representatives shall have reasonable access to all
of the books and records relating to the Business which Symantec or
any of its Affiliates may retain after the Closing Date. Such access
shall be afforded by Symantec and its Affiliates upon receipt of
reasonable advance notice and during normal business hours. HP shall
be solely responsible for any costs and expenses incurred by it
pursuant to this Section 12.6. If Symantec or any of its Affiliates
shall desire to dispose of any of such books and records prior to the
expiration of such three (3) year period, Symantec shall prior to such
disposition, give HP a reasonable opportunity, at HP's expense, to
segregate and remove such books and records as HP may select.
(b) For a period of one (1) year after the Closing Date,
in the event that Symantec has a reasonable need for a copy of any of
the Books and Records delivered by Symantec to HP under this
Agreement, Symantec will notify HP of its request. HP may make such
copy available to Symantec, at Symantec's sole expense, in HP's
reasonable discretion.
Section 12.7 Entire Agreements, Amendments. With the exception of
the CDA, this Agreement and the Exhibits and Schedules referred to herein and
the documents delivered pursuant hereto contain the
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entire understanding of the parties hereto with regard to the subject matter
contained herein or therein, and supersede all prior agreements, understandings
or letters of intent between or among any of the parties hereto, including
without limitation the Letter of Intent. This Agreement shall not be amended,
modified or supplemented except by a written instrument signed by an authorized
representative of each of the parties hereto.
Section 12.8 Interpretation. Article titles and headings to
sections herein are inserted for convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
Section 12.9 Waivers. Any term or provision of this Agreement may
be waived, or the time for its performance may be extended, by the party or
parties entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently authorized for the purposes of this Agreement if, as to any party,
it is authorized in writing by an authorized representative of such party. The
failure of any party hereto to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision, nor in any
way to affect the validity of this Agreement or any part hereof or the right of
any party thereafter to enforce each and every such provision. No waiver of
any breach of this Agreement shall be held to constitute a waiver of any other
or subsequent breach.
Section 12.10 Expenses. Each party hereto will pay all costs and
expenses incident to its negotiation and preparation of this Agreement and to
its performance and compliance with all agreements and conditions contained
herein on its part to be performed or complied with, including the fees,
expenses and disbursements of its counsel, accountants and other advisors.
Section 12.11 Partial Invalidity. Wherever possible, each
provision hereof shall be interpreted in such manner as to be effective and
valid under applicable law, but in case any one or more of the provisions
contained herein shall be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such invalid, illegal or unenforceable provision or provisions
or any other provisions hereof, unless such a construction would be
unreasonable.
Section 12.12 Execution in Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be considered an
original instrument, but all of which shall be considered one and the same
agreement, and shall become binding when one or more counterparts have been
signed by each of the parties hereto and delivered to each of Symantec and HP.
Section 12.13 Further Assurances. On the Closing Date, Symantec
shall (i) deliver to HP such other bills of sale, deeds, endorsements,
assignments and other good and sufficient instruments of conveyance and
transfer, in form reasonably satisfactory to HP and its counsel, as HP may
reasonably request or as may be otherwise reasonably necessary to vest in HP
all the right, title and interest of Symantec in, to or under any or all of the
Assets, and (ii) take all steps as may be reasonably necessary to put HP in
actual possession and control of all the Assets. From time to time following
the Closing, Symantec shall execute and deliver, or cause to be executed and
delivered, to HP such other instruments of conveyance and transfer as HP may
reasonably request or as otherwise may be reasonably necessary to more
effectively convey and transfer to, and vest in, HP and put HP in possession
of, any part of the Assets, and, in the case of licenses, certificates,
approvals, authorizations, agreements, contracts, leases, easements and other
commitments included in the Assets (a) which cannot be transferred or assigned
effectively without the
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consent of third parties which consent has not been obtained prior to the
Closing, to cooperate with HP at its request in endeavoring to obtain such
consent promptly, and if any such consent is unobtainable, to use its
reasonable efforts to secure to HP the benefits thereof in some other manner,
or (b) reasonable efforts jointly with HP to secure to HP the benefits thereof
in some other manner (including the exercise of the rights of Symantec
thereunder). Notwithstanding anything in this Agreement to the contrary, this
Agreement shall not constitute an agreement to assign any license, certificate,
approval, authorization, agreement, contract, lease, easement or other
commitment included in the Assets if an attempted assignment thereof without
the consent of a third party thereto would constitute a breach thereof.
Section 12.14 Governing Law. This Agreement shall be governed by
and construed in accordance with the internal laws (as opposed to the conflicts
of law provisions) of the State of California.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the date first above written.
"HP"
HEWLETT-PACKARD COMPANY,
a California corporation
By:
-----------------------------
Name:
Title:
"Symantec"
SYMANTEC CORPORATION,
a Delaware corporation
By:
-----------------------------
Name:
Title:
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ASSET PURCHASE AGREEMENT
INDEX TO SCHEDULES
SCHEDULE DESCRIPTION
2.1(e) Capital Equipment and Other Hard Assets
2.6(b) Payment of Purchase Price
4 Disclosure Letter
7.5 Employees
i
35
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
A-1 Transferred Products & Technology
A-2 Transferred Agreements
B pcANYWHERE OEM Agreement
C Instrument of Assignment and Assumption
D License Agreement
E Transition OEM Agreement
F Sublease and Sublease Letter Agreement
G Transition Agreement
H Opinion of Symantec's Counsel
ii
36
ASSET PURCHASE AGREEMENT
Schedule 2.6(b)
Payment of Purchase Price
(Dollars in millions, USD) Maximum Percent of HP's
Amount of NSMD Revenue
Royalty
HP Quarter Ending:
-----------------
April 30, 1997 $ 5.3 30%
July 31, 1997 $ 5.0 30%
October 31, 1997 $ 5.5 30%
January 31, 1998 $ 5.5 30%
April 30, 1998 $ 4.0 30%
July 31, 1998 $ 1.5 30%
October 31, 1998 $ 1.3 30%
$ 28.1
Payment stream has been modeled to yield no more than $27,000,000 NPV (at a
discount rate of 6%) over eight quarters beginning with HP's quarter ending
April 30, 1997.
iii
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
LICENSE AGREEMENT
This license agreement (the "License Agreement") is entered into and is
effective as of the Closing Date specified in the Asset Purchase Agreement by
and between Hewlett-Packard Company, a California corporation ("HP") and
Symantec Corporation, a Delaware corporation ("Symantec").
1. RECITALS:
1.1 Symantec has been operating a business to design, develop,
enhance, test, manufacture, distribute and support the
products, technologies and intellectual property known to
Symantec and its customers as all versions of Norton
Administrator for Networks ("NAN"), Norton Desktop
Administrator ("NDA"), Expose ("Expose") and work-in-progress
and developments intended for the upcoming "Big Bang" release
(collectively, the "Business").
1.2 Symantec's business of (i) designing, developing, enhancing
and testing the Products and Work-in-Progress, (ii)
manufacturing and distributing specifically for the Products,
and (iii) and supporting primarily the Products and
Work-in-Progress constitutes the "Products Business."
1.3 Pursuant to the Asset Purchase Agreement between HP and
Symantec dated March 27, 1997 ("Asset Purchase Agreement"),
Symantec is selling and HP is buying the Assets;
1.4 In conjunction with execution of the Asset Purchase Agreement,
HP wishes to license from Symantec certain intellectual
property (described in Schedules 1, 2, 3, 4, 5 and 6 to this
Agreement) primarily related to other Symantec businesses but
also related to the Products. Symantec wishes to license
back from HP certain intellectual property (described in
Schedules 7, 8 and 9 to this Agreement) contained in the
Assets but also related to other Symantec business.
The parties agree as follows:
2. DEFINITIONS
2.1 Definitions. In this Agreement, the following terms have the
meanings specified or referred to in this Section 2 and shall
be equally applicable to both the singular and plural forms.
Any agreement referred to below shall mean such agreement as
amended, supplemented and modified from time to time to the
extent permitted by the applicable provisions thereof and by
this Agreement.
38
HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
2.1.1 "Affiliate" means any entity which controls, is
controlled by, or is under common control with,
Symantec or HP, as the case may be. An entity shall
be deemed to be in control of another entity only if,
and for so long as, it owns or controls more than
fifty percent (50%) of the shares of the subject
entity entitled to vote in the election of directors
(or, in the case of an entity that is not a
corporation, for the election of the corresponding
managing authority).
2.1.2 "HP" has the meaning specified in the first paragraph
of this Agreement.
2.1.3 "Expose" has the meaning described in Recital 1.1
above.
2.1.4 "Intellectual Property" means worldwide patents,
patent applications, patent rights, trademarks,
trademark registrations, trademark applications,
licenses, service marks, products marks, trade names,
all other names embodying products or product
goodwill (or both) copyright registrations, mask
works, copyrights (including those in computer
programs, software, including all source code and
object code, programming tools, drawings,
specifications and data), designs, trade secrets,
technology, inventions, discoveries and improvements,
know-how; proprietary rights, formulae, processes,
technical information, confidential and proprietary
information, whether tangible or intangible, and all
other intellectual property rights, whether or not
subject to statutory registration or protection.
2.1.5 "License Agreement" means this Agreement.
2.1.6 "NAN" has the meaning described in Recital 1.1 above.
2.1.7 "NDA" has the meaning described in Recital 1.1 above.
2.1.8 "Products" means all past and current versions of
NAN, NDA and Expose.
2.1.9 "Assets" has the meaning specified in the Asset
Purchase Agreement.
2.1.10 "Symantec" has the meaning specified in the first
paragraph of this Agreement.
2.1.11 "Work-in-Progress" means work-in-progress for the
"Big Bang" release.
3. DELIVERY
2
39
HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
3.1 Symantec will create and own a source code copy of a TAOSKRNL
library for the Quake component and a TAOSKRNL library for the
Core component upon signing this License Agreement that
conform to the following requirements:
3.1.1 Symantec will use only minimal engineering resources
currently dedicated to the Big Bang release;
3.1.2 the TAOSKRNL libraries will contain a subset of the
functions provided by the corresponding SYMKRNL
libraries including all string handling functions,
all file/directory functions and all utility
functions;
3.1.3 the TAOSKRNL libraries will contain at least the disk
access functions required by the Big Bang release and
all supported versions of NAN and NDA; and
3.1.4 the TAOSKRNL libraries will meet all quality, testing
and localization standards currently defined by the
Symantec product release requirements.
3.2 Symantec will provide HP a copy of the software listed in
Schedules 1, 2, 3, 4, 5 and 6 upon signing this License
Agreement in accordance with the licenses granted in Section
4. HP will provide Symantec a copy of the software listed in
Schedule 9 upon release.
4. LICENSE GRANT
4.1 Symantec grants to HP and its Affiliates a non-exclusive,
perpetual, transferrable, worldwide, paid-up, irrevocable
license under all Symantec Intellectual Property rights,
whether currently owned or later acquired, to make, have made,
copy, use, sell, offer for sale, distribute, import, disclose
and create derivative works for the Schedule 1 Licensed
Software for source code, object code and associated
documentation, together with the right to sublicense others to
do the same.
4.2 Symantec grants to HP and its Affiliates a non-exclusive,
perpetual, transferrable, worldwide, paid-up, irrevocable
license under all Symantec Intellectual Property rights,
whether currently owned or later acquired, to make, have made,
copy, use, sell, offer for sale, distribute, import, disclose
and create derivative works for the Schedule 2 Licensed
Software for source code, object code and associated
documentation, together with the right to sublicense others to
do the same, except that:
4.2.1 this Section 4.2 license is limited only to the
development, development, distribution and support of
NAN metering products and derivative
3
40
HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
metering products during a period ending 18 months
after closing;
4.2.2 HP will not provide the Schedule 2 Licensed Software
in source code format to any third party except to
escrow agents for escrow relationships during a
period ending 18 months after closing;
4.2.3 HP will not sell or distribute any disk utility
products or anti-virus products containing Schedule 2
Licensed Software during a period ending 36 months
after closing; and
4.2.4 HP will not provide either directly or indirectly any
source code license or any license with distribution
rights for the Schedule 2 Licensed Software to
McAfee, Cyber Media, Trend Micro Inc. or their
successors in interest during a period ending 36
months after closing.
4.3 Symantec grants to HP and its Affiliates a non-exclusive,
perpetual, transferrable, worldwide, paid-up, irrevocable
license under all Symantec Intellectual Property rights,
whether currently owned or later acquired, to make, have made,
copy, use, sell, offer for sale, distribute, import, disclose
and create derivative works for the Schedule 3 Licensed
Software for source code, object code and associated
documentation, together with the right to sublicense others to
do the same, except that:
4.3.1 HP will not provide either directly or indirectly any
source code license or any license with distribution
rights for the Schedule 3 Licensed Software to
McAfee, Cyber Media, Trend Micro Inc. or their
successors during a period ending 6 months after
closing.
4.4 Symantec grants to HP and its Affiliates a non-exclusive,
perpetual, transferrable, worldwide, paid-up, irrevocable
license under all Symantec Intellectual Property rights,
whether currently owned or later acquired, to make, have made,
copy, use, sell, offer for sale, distribute, import, disclose
and create derivative works for the Schedule 4 Licensed
Software for source code, object code and associated
documentation, together with the right to sublicense others to
do the same, except that:
4.4.1 HP will not provide either directly or indirectly any
source code license or any license with distribution
rights for the Schedule 3 Licensed Software to
McAfee, Cyber Media, Trend Micro Inc. or their
successors during a period ending 18 months after
closing.
4.5 Symantec grants to HP and its Affiliates a non-exclusive,
perpetual, transferrable,
4
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
worldwide, paid-up, irrevocable license under all Symantec
Intellectual Property rights, whether currently owned or later
acquired, to make, have made, copy, use, import, disclose and
create derivative works for the Schedule 5 Licensed Software
for source code, object code and associated documentation,
together with the right to sublicense others to do the same
except that HP will not sublicense the Schedule 5 Licensed
Software as a stand-alone product with no additional
functionality and will only sublicense the Schedule 5 Licensed
Software for use in conjunction with a source code license to
NAN, NDA, Expose or any derivative product.
4.6 Symantec grants to HP and its Affiliates a non-exclusive,
perpetual, transferrable, worldwide, paid-up, irrevocable
license under all Symantec Intellectual Property rights,
whether currently owned or later acquired, to make, have made,
copy, use and import up to a total of 50 copies for each of
the three programs contained in the Schedule 6 Licensed
Software for object code and associated documentation,
together with the right to sublicense others to do the same.
4.7 HP grants to Symantec and its Affiliates a non-exclusive,
perpetual, irrevocable, non-transferrable, worldwide, paid-up
license under all HP Intellectual Property rights acquired
from Symantec in the Asset Purchase Agreement or under this
License Agreement, whether currently held or later acquired,
to make, have made, copy, use, import and create derivative
works for the Schedule 7 Licensed Software only for use in the
Schedule 7 Licensed Products and only for the Schedule 7
Associated Limited Purpose. HP grants to Symantec and its
Affiliates a non-exclusive, non-transferrable, worldwide,
perpetual, irrevocable, paid-up license under all HP
Intellectual Property rights acquired from Symantec in the
Asset Purchase Agreement or under this License Agreement,
whether currently held or later acquired, to sell, offer for
sale, distribute the object code and associated documentation
for the Schedule 7 Licensed Software only for use in the
Schedule 7 Licensed Products and only for the Schedule 7
Associated Limited Purpose. Schedule 7 Licensed Products
means the Schedule 7 Associated Products and any later
versions or derivative products primarily based on the
Schedule 7 Associated Products. Schedule 7 Licensed Software
means the source code, object code and associated
documentation for the Schedule 7 Listed Software and any
modified Schedule 7 Listed Software.
4.8 HP grants to Symantec and its Affiliates a non-exclusive,
perpetual, irrevocable, non-transferrable, worldwide, paid-up
license under all HP Intellectual Property rights acquired
from Symantec in the Asset Purchase Agreement or under this
License Agreement, whether currently held or later acquired,
to use, sell, offer for sale, distribute, import the Schedule
8 Licensed Software only for use in the Schedule 8 Associated
Products and only for the Schedule 8 Associated Limited
Purpose. Schedule 8 Licensed Software means the object code
and associated
5
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
documentation for the Schedule 8 Listed Software.
4.9 HP grants to Symantec a non-exclusive, perpetual,
non-transferrable, worldwide, paid-up license under all HP
Intellectual Property rights, whether currently held or later
acquired, to make, have made, copy, use internally, use
externally only to embed for distribution to external test
sites for Symantec and import the object code and associated
documentation for the Schedule 9 Licensed Software. HP may
revoke this license upon material breach by Symantec of this
Section 4.9 License if the breach is not cured within 30 days
of notice.
5. OWNERSHIP
5.1 HP receives no right, title or interest to any Symantec
technology or Intellectual Property therein under this License
Agreement except for the specific licenses granted in Section
4. HP retains ownership of any modifications or additions
made by HP to any software licensed under and in accordance
with this License Agreement.
5.2 Symantec receives no right, title or interest to any HP
technology under this License Agreement except for the
specific licenses granted in Section 4. Symantec retains
ownership of any modifications or additions made by Symantec
to any software licensed under and in accordance with this
License Agreement.
6. PAYMENT
6.1 All licenses granted under this License Agreement are
non-royalty-bearing, fully paid-up licenses. Consideration
for the licenses granted under this License Agreement is found
within the Asset Purchase Agreement.
7. WARRANTY
7.1 Symantec represents and warrants that it either has title or
sufficient rights in the copyrights, trade secrets and patents
of any software and documentation licensed under this License
Agreement to grant the licenses granted by Symantec under this
License Agreement.
7.2 Symantec represents and warrants that Symantec does not have
any liability with respect to the software and documentation
licensed under this License Agreement arising from the
infringement or misappropriation of any patent, known to
Symantec and issued or published prior to closing, any
trademark, any service xxxx, any copyright or other
Intellectual Property right of another.
6
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
7.3 Symantec represents and warrants that Symantec does not have
any liability with respect to the software and documentation
licensed under this License Agreement arising from the
infringement or misappropriation of any patent not known to
Symantec and issued or published prior to closing.
7.4 THE WARRANTIES SPECIFICALLY SET FORTH IN THIS AGREEMENT ARE
EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN OR ORAL, IS
EXPRESSED OR IMPLIED. BOTH PARTIES SPECIFICALLY DISCLAIM THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
8. INDEMNIFICATION
8.1 Symantec will indemnify HP for a breach of the foregoing
warranties in accordance with Article 10 of the Asset Purchase
Agreement.
9. DISPUTE RESOLUTION
9.1 The parties will negotiate in good faith to resolve any
dispute between them regarding this Agreement. If such
negotiations do not resolve the dispute to the satisfaction of
both parties then the Agreement Coordinators from each party
will meet and will attempt to reach a mutually agreeable
resolution of the dispute.
9.2 If such negotiations and meetings do not resolve the dispute
to the satisfaction of both parties then each party will
nominate one senior officer of the rank of Vice President for
Symantec and Division General Manager for HP or higher as its
representative. These representatives will meet in person and
alone (except for one interpreter, if necessary, and one other
assistant allowed for each party) and will attempt in good
faith to resolve the dispute. This meeting will be a required
prerequisite before either party may seek judicial or
governmental resolution of the dispute, except for claims
seeking injunctive or other equitable relief. The parties may
agree to pursue any other additional mutually acceptable
dispute resolution method but such pursuit will not modify the
above-stated prerequisite.
10. TERMINATION
10.1 Termination. This Agreement may be terminated by the mutual
consent of HP and Symantec;
10.2 Notice of Termination. Any party desiring to terminate this
Agreement pursuant to this Section 10 above shall give notice
of such desire to the other party to this Agreement.
7
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
10.3 Effect of Termination. All representations, warranties,
covenants, licenses granted and obligations contained in this
Agreement shall survive the termination of this Agreement.
11. GENERAL PROVISIONS
11.1 Exhibits In This Agreement. The following exhibits form a
part of this Agreement and are incorporated by reference into
this Agreement:
Schedule 1 - Product technology unlimited source license to HP
Schedule 2 - SYMEVNT limited source license to HP
Schedule 3 - TAOSKRNL limited source license to HP
Schedule 4 - SYMKRNL limited source license to HP
Schedule 5 - Symantec tools limited source license to HP
Schedule 6 - Symantec tools limited object license to HP
Schedule 7 - Distribution technology limited source license to
Symantec
Schedule 8 - Product technology limited object license to
Symantec
Schedule 9 - Product technology limited end user license to
Symantec
11.2 Copyright Notices. Unless stated otherwise in this Agreement,
each party will ensure that all copyright notices that are
marked on or included in any portion of software or
documentation, in any form, that is furnished to that party
under this Agreement will be marked on or included at least
once in each copy made by or for that party.
11.3 Notices. Any notice given hereunder shall be in writing and
shall be deemed to have been received: (i) in the case of
personal delivery, on the date of such delivery; (ii) in the
case of facsimile transmission, on the date on which the
sender receives confirmation by facsimile transmission that
such notice was received by the addressee, provided that a
copy of such transmission is additionally sent by mail as set
forth in (iv) below; (iii) in the case of overnight air
courier, on the second business day following the day sent,
with receipt confirmed by the courier; and (iv) in the case of
mailing by first class certified or registered mail, postage
prepaid, return receipt requested, on the fifth business day
following such mailing and should be addressed as follows:
If to HP, to:
Hewlett-Packard Company
0000 Xxxxxxx Xx.
X.X. Xxx 00000, M/S 20BQ
8
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
Xxxx Xxxx, XX 00000-0000
Attention: Director, Corporate Development
Facsimile: 000-000-0000
with a copy to:
Hewlett-Packard Company
0000 Xxxxxxx Xxxxxx, XX: 20BQ
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: 000-000-0000
If to Symantec, to
Symantec Corporation
00000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Senior Vice President, Corporate Development
Facsimile: 000-000-0000
with a copy to:
Symantec Corporation
00000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Vice President and General Counsel
Facsimile: 000-000-0000
or to such other address as such party may indicate by a
notice delivered to the other parties hereto.
11.4 Export Control. HP and Symantec agree to comply with all
applicable United States laws and regulations that may govern
the export of products subject to this Agreement, including
the Export Administration Act of 1979, as amended, any
successor legislation, and the Export Administration
Regulations issued by the Department of Commerce.
11.5 No Waiver. The waiver of any term, condition, or provision of
this Agreement must be in writing and signed by an authorized
representative of the waiving party. No such waiver shall be
construed as a waiver of any other term, condition, or
provision except as provided in writing, nor as a waiver of
any subsequent breach of the same term, condition, or
provision.
9
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
11.6 Severability. If any provision in this Agreement is held
invalid or unenforceable by a body of competent jurisdiction,
such provision shall be construed, limited or, if necessary,
severed to the extent necessary to eliminate such invalidity
or unenforceability. The parties agree to negotiate in good
faith a valid, enforceable substitute provision that most
nearly effects the parties' original intent in entering into
this Agreement or to provide an equitable adjustment in the
event no such provision can be added. The other provisions of
this Agreement shall remain in full force and effect.
11.7 Entire Agreement. This Agreement comprises the entire
understanding between the parties with respect to its subject
matters and supersedes any previous communications,
representations, or agreements, whether oral or written. For
purposes of construction, this Agreement shall be deemed to
have been drafted by both parties. No modification of this
Agreement shall be binding on either party unless in writing
and signed by an authorized representative of each party.
11.8 Governing Law. This Agreement will be governed by the laws of
the State of California without reference to any choice of
laws provisions.
The parties have read and agreed to this License Agreement.
HEWLETT-PACKARD COMPANY SYMANTEC CORPORATION
By: By:
------------------------ -------------------------------
Name: Name:
---------------------- ----------------------------
Title: Title:
-------------------- ----------------------------
10
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
Schedule 1
Product technology unlimited source license to HP
Schedule 1 Licensed Software:
Components and Related Projects
1. System Detection Library (SDL)
2. Symantec Basic Extensions, Symantec Installer, Symantec Basic Recorder
and Enhanced Menuing System (EMS-the menuing system used in the NEF
console)
2.1 Components from Symantec shared technology that are used by
NAN 2.55 and NDA 1.02
PROJECT DESCRIPTION TARGETS
EBEXT Network, mail, and other extensions SYMWNET7.SBL, SYMWEXT7.SBL, SYMCNST7.SBL,
to Summit Basic. SYMWNET7.LIB, SYMWEXT7.LIB, SYMPUB7.LIB,
SYMCNST7.LIB, SYMWNET7.SBH, SYMWEXT7.SBH,
SYMCNST7.SBH
Symantec Files that are in the Symantec INSTALL.EXE, INSTBIN.EXE, SIW3ZIP.DLL, SIWDLL.DLL,
Installer Installer. SIWDLL32.DLL, SIWUNZIP.DLL, SIWVWR.EXE,
SIWZIP.DLL, TKSIW16.DLL, TKSIW32.DLL
11
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
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2.2 Components from Symantec shared technology that are used by NAS EE 1.0
PROJECT DESCRIPTION TARGETS
EBEXT Network, mail, and other extensions to SYMWNET7.SBL, SYMWEXT7.SBL, SYMCNST7.SBL,
Summit Basic. SYMWNET7.LIB, SYMWEXT7.LIB, SYMPUB7.LIB,
SYMCNST7.LIB, SYMWNET7.SBH, SYMWEXT7.SBH,
SYMCNST7.SBH
Symantec Files that are in the Symantec INSTALL.EXE, INSTALL.EXE, INSTBIN.EXE,
Installer Installer set. INSTBIN.EXE, MAILBUSI.CTL, N16UTILS.LIB,
PIPELINE.DLL, PIPELINE.INI, SETUP.EXE,
SIW3ZIP.DLL, SIW3ZIP.DLL, SIWDLL.DLL,
SIWDLL.DLL, SIWDLL.LIB, SIWDLL32.DLL,
SIWDLL32.DLL, SIWFMOD.EXE, SIWGT16.DLL,
SIWGT32.DLL, SIWPIPL.EXE, SIWUNZIP.DLL,
SIWUNZIP.DLL, SIWVWR.EXE, SIWVWR.EXE,
SIWWIZ16.LIB, SIWZIP.DLL, SIWZIP.DLL,
SUNZIP16.DLL, SYMNAV7.LIB, TKSIW16.DLL,
TKSIW16.DLL, TKSIW32.DLL, TKSIW32.DLL,
_SYMINST.EXE, _SYMINST.PIF, _SYMSHEL.EXE
12
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
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2.3 Components from Symantec shared technology that are used by
NAS PE 3.0
PROJECT DESCRIPTION TARGETS
EBEXT Network, mail, and other extensions to SYMWNET7.SBL, SYMWEXT7.SBL, SYMCNST7.SBL,
Summit Basic. SYMWNET7.LIB, SYMWEXT7.LIB, SYMPUB7.LIB,
SYMCNST7.LIB, SYMWNET7.SBH, SYMWEXT7.SBH,
SYMCNST7.SBH
Symantec Files that are in the Symantec INSTALL.EXE, INSTALL.EXE, INSTBIN.EXE,
Installer Installer set. INSTBIN.EXE, MAILBUSI.CTL, N16UTILS.LIB,
SETUP.EXE, SIW3ZIP.DLL, SIW3ZIP.DLL,
SIWDLL.DLL, SIWDLL.DLL, SIWDLL.LIB,
SIWDLL32.DLL, SIWDLL32.DLL, SIWFMOD.EXE,
SIWGT16.DLL, SIWGT32.DLL, SIWPIPL.EXE,
SIWUNZIP.DLL, SIWUNZIP.DLL, SIWVWR.EXE,
SIWVWR.EXE, SIWWIZ16.LIB, SIWZIP.DLL,
SIWZIP.DLL, SUNZIP16.DLL, SYMNAV7.LIB,
TKSIW16.DLL, TKSIW16.DLL, TKSIW32.DLL,
TKSIW32.DLL, _SYMINST.EXE, _SYMINST.PIF,
_SYMSHEL.EXE
13
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
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2.4 Components from Symantec shared technology that are used by
Big Bang
PROJECT DESCRIPTION TARGETS
EBEXT Network, mail, and other extensions to SYMWNET7.SBL, SYMWEXT7.SBL, SYMCNST7.SBL,
Summit Basic. SYMWNET7.LIB, SYMWEXT7.LIB, SYMPUB7.LIB,
SYMCNST7.LIB, SYMWNET7.SBH, SYMWEXT7.SBH,
SYMCNST7.SBH
EMS Enhanced Menuing System SYMEMS40.DLL, SYMEMS4D.DLL
Symantec Basic The macro recorder used with Symantec SBRECORD.EXE
Recorder Basic.
Symantec Files that are in the Symantec SETUP.EXE, SFTTR32.DLL, SIWDLL32.DLL,
Installer Installer set. SIWFMOD.EXE, SIWGT16.DLL, SIWGT32.DLL,
SIWPIPL.EXE, SIWPIPL.EXE, SUNZIP32.DLL, ,
TKKNF160.DLL, TKKNF320.DLL, _SYMSHEL.EXE
14
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
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3. Selected projects from Quake library, selected projects from Core
library
3.1 Quake projects that are used by NAN 2.55 and NDA 1.02
PROJECT DESCRIPTION TARGETS
[ROOT] Files necessary to do development builds. None
DESKEDIT Symantec basic editor SBEDIT.EXE
DOCS System documentation. None
DOSCRT0 DOS C-runtime interface. DOSCRT0.LIB
DOSDLG DOS dialog library. DOSDLG.LIB
DOSDRVWN DOS drive window library. DOSDRVWN.LIB
DOSIO DOS I/O routines. DOSIO.LIB
DOSNET DOS network library. DOSNET.LIB
DOSTOOL DOS utility library. DOSTOOL.LIB
DOSUI DOS UI library. DOSUI.LIB
DOSVMM DOS memory management library. DOSVMM.LIB
DRAGDROP Drag and drop interface DLL. DRAGDRP7.DLL
GEOLGIST Documentation for Quake None
INC Project wide include files. None
INCLUDE Project wide include files. None
LOADER Memory swapping DOS loader. LOADER.LIB
NOBUILDS Various files that are included in the
project that don't get built.
NPT Print library. NPT7.DLL
OS2VMM OS/2 memory manager library. OS2VMM.LIB
PARSWAP DOS Memory swapping loader. SWAPPER.EXE
STRINGS Localizable resources. STRINGS.LIB
SYMCHART Wrapped up Xxxxx-Xxxxxx charting code. SYMCHRT7.DLL
SYMCRC CRC routines. SYMCRC7.LIB
SYMDB Database without Trio C-Index. SYMDB7.DLL
SYMGUI GUI routines. SYMGUI7.DLL
SYMMAIL Mail system interface routines. SYMMAIL7.DLL
SYMNET Network routines. SYMNET7.DLL, NDS.DLL, SYMBV47.DLL,
SYMLM27.DLL, SYMNDS7.DLL, SYMNSM7.DLL,
15
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
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SYMUTIL Utility routines. SYMNW37.DLL SYMNW47.DLL, SYMNW37O.DLL,
SYMLM27O.DLL, SYMNSM7.DLL
SYMUTIL7.DLL
SYMVWR Viewer (database and other). NVIEWER.EXE
SYMVWR7.DLL, SYMSCAL7.PRS, SYMPROG7.PRS,
SYMNDB7.PRS, SYMHEX7.PRS, SYMDOC7.PRS,
SYMBMP7.PRS, SYMBM7.DSP, SYMHXD7.DSP,
SYMSS7.DSP, SYMTXT7.DSP
TREASURE Utility routines used by other parts of TREASURE.LIB
Quake.
16
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
3.2 Core projects that are used by Big Bang
PROJECT DESCRIPTION TARGETS
[ROOT] Files necessary to do development builds None
DEVNODE Device node library DEVNODE.LIB
DOCS Core system documents None
DOSCRT0 DOS C-runtime interface. DOSCRT0.LIB
DOSIO DOS I/O routines. DOSIO.LIB
DOSTOOL DOS utility library. DOSTOOL.LIB
DOSUI DOS UI library. DOSUI.LIB
DOSVMM DOS memory management library. DOSVMM.LIB
DRAGDROP Drag and drop interface DLL. S32DGDPJ.DLL
EDITAPI Registry editing routines. S32EDAPJ.DLL
EDITPAGE Registry editing routines. S32EDPGJ.DLL
GEOLGIST Core system documents None
INC Project include files. None
XXX.XXX Project include files. None
INCLUDE Project include files. None
INFODESK.DLL Help system. INFODESK.DLL
INFODESK.HLP Help files for help system. HLP files.
NOBUILDS Various files that are included in the
project that don't get built.
NPT Printing library. S32NPTJ.DLL
OS2VMM OS/2 memory manager. OS2VMM.LIB
PARSWAP DOS memory swapping loader. PARSWAP.EXE
SDL System detection library. SLD32.DLL, SDLTHK32.DLL, SDL16.DLL,
SDLTK16.DLL
SDLBENCH System detection library benchmark code. SDLBM32.DLL, SDLBMMB.VXD,
SDLBM16.DLL,
SDLDUMP System detection library test framework. SDLDMP16.EXE, SDLDMP32.EXE
SDLVXD System detection library. SDLVXD.VXD
STRINGS Localizable resources. STRINGS.LIB
SYMCRC CRC routines. SYMCRCJ.LIB
SYMDB Database without Trio C-Index. S32DBJ.LIB
17
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
XXXXXXX.XX Event notification test routines. None
SYMGUI GUI routines. S32GUIJ.DLL
SYMKRLIB SYMKRNL as a static library. S32KRLIB.LIB
SYMLEAN Subset of MFC classes (i.e. Cstring). IRALEAN.LIB
SYMNET Networking libraries. LOCALGRP.EXE, NETTST32.EXE,
S32NETJ.DLL, S32NSMJ.DLL S32XPCJ.DLL,
NETTST16.EXE, SYMXPCJ.EXE
SYMBV4J.DLL, SYMLM2J.DLL,
SYMNETJ.DLL, SYMNSMJ.DLL SYMNW3J.DLL,
SYMNW4J.DLL
SYMNETQA.W16 Networking library test application. SYMNETQA.EXE
SYMNETQA.W32 Networking library test application. SYMNETQA.EXE
SYMNSO Network object display routines. S32NSOJ.DLL
SYMUTIL Utility library. S32UTILJ.DLL
SYMVWR Viewers (database and other). NVIEW32.EXE, S32VWRJ.DLL, S32BMJ.DSP,
S32NXDJ.DSP, S32SSJ.DSP, S32TXTJ.DSP,
X00XXXX.XXX, X00XXXX.XXX,
X00XXXX.XXX, X00XXXX.XXX,
S32PROGJ.PRS
18
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
Schedule2
SYMEVNT limited source license to HP
Schedule 2 Licensed Software
4. Limited use Core projects used by Big Bang
PROJECTS DESCRIPTION TARGETS
SYMEVNT for the NT Event notification for the NT platform. N32EVENT.DLL, NANEVENT.DLL,
platform NANEVENT.SYS
NANEVNT NANEVNT is the SYMEVNT project for the Windows X00XXXXX.XXX, X00XXXXX.XXX,
95 platform customized to remove only the file NANEVENT.DLL
system and device management events.
19
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
Schedule 3
TAOSKRNL limited source license to HP
Schedule 3 Licensed Software
1. Limited use Quake projects used by NAN 2.55 and NDA 1.02
PROJECT DESCRIPTION TARGETS
TAOSKRNL Substitute kernel routines for SYMKRNL. SYMKRNL7.DLL
2. Limited use Core projects used by Big Bang
PROJECTS DESCRIPTION TARGETS
TAOSKRNL Substitute kernel routines for SYMKRNL. S32KRNLI.DLL, SYMKRNL.DLL
20
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
Schedule 4
SYMKRNL limited source license to HP
Schedule 4 Licensed Software
1. Limited use Quake projects used by NAN 2.55 and NDA 1.02
PROJECT DESCRIPTION TARGETS
SYMKRNL Kernel routines. SYMKRNL7.DLL
2. Limited use Core projects used by Big Bang
PROJECTS DESCRIPTION TARGETS
SYMKRNL Kernel routines. S32KRNLJ.DLL
21
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
Schedule 5
Symantec tools limited source license to HP
Schedule 5 Licensed Software
1. STS (Software Tracking System)
2. SBS (The Build system)
3. Enterprise Lab Test Tools
4. Build system projects as follows:
PROJECT DESCRIPTION TARGET
NETNAME.DOS Lab utilities None
NETNAME.W16 Lab utilities None
22
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
Schedule 6
Symantec tools limited object license to HP
Schedule 6 Licensed Software
1. Symantec Cafe
2. Symantec C++
3. Think Pascal
23
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
Schedule 7
Distribution technology limited source license to Symantec
For current products
LISTED SOFTWARE ASSOCIATED PRODUCTS ASSOCIATED LIMITED PURPOSE
# NAN 2.5 Console and NEF Your Eyes Only Administrator # distributing and administering YEOA
2.5 framework. (YEOA) (PC version) and PCA clients
PC Anywhere (PCA) (PC
version)
LISTED SOFTWARE ASSOCIATED PRODUCTS ASSOCIATED LIMITED PURPOSE
# NAN 2.5 software Your Eyes Only Administrator # distributing and administering YEOA
distribution, limited to (YEOA) (PC version) and PCA clients
prevent end-user direct PC Anywhere (PCA) (PC
creation of new version)
distribution jobs and
end-user direct
modification of existing
distribution jobs other
than that allowed by the
current version (known as
"NAN-Lite").
LISTED SOFTWARE ASSOCIATED PRODUCTS ASSOCIATED LIMITED PURPOSE
# SNIM (Symantec Network Your Eyes Only Administrator # distribution of YEOA (Macintosh) and
Installer for Macintosh). (YEOA) (Macintosh version) XXX (Macintosh) clients.
Symantec Anti-Virus (XXX)
(Macintosh version)
For future products
LISTED SOFTWARE ASSOCIATED PRODUCTS ASSOCIATED LIMITED PURPOSE
build system project Any security, anti-virus or Any.
NALERT32 cost-of-ownership product.
24
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
source files
APAGER.C
AIOCOMM.C
NPAGER.C
Associated include files.
25
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
Schedule 8
Product technology limited object license to Symantec
LISTED SOFTWARE ASSOCIATED PRODUCTS ASSOCIATED LIMITED PURPOSE
# NAN 1.0 Console #Norton Utilities # allowing Symantec resellers to sell remaining
and NEF 1.0 Administrator copies of NUA (current inventory only).
framework.
26
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HP AND SYMANTEC CONFIDENTIAL ASSET PURCHASE AGREEMENT - EXHIBIT D
MARCH 26, 1997
Schedule 9
Product technology limited end user license to Symantec
Schedule 9 Licensed Software
1. Expose (version 3.52)
2. Expose (version 4.0)
3. NAN (version 2.55)
4. NAN (Big Bang release version)
5. NDA (version 1.02)
6. NDA (Big Bang release version)
27
64
ASSET PURCHASE AGREEMENT
AMENDMENT NO. 1
This Amendment No. 1 (the "Amendment") to the Asset Purchase Agreement
dated March 27, 1997 (the "Agreement") is entered into and made effective this
24th day of April, 1997 by and between Hewlett-Packard Company, a California
corporation ("HP"), and Symantec Corporation, a Delaware corporation
("Symantec"). Terms not defined herein shall have the meanings ascribed to
them in the Agreement.
RECITAL
WHEREAS, HP and Symantec executed and delivered the Agreement and now
desire to amend the Agreement to clarify certain of its terms and to add certain
additional matters not previously provided for in the Agreement.
NOW THEREFORE, intending to be bound, in consideration for good and
valuable consideration, the receipt and sufficiency of which is hereby mutually
acknowledged, HP and Symantec agree as follows:
1. AMENDMENT TO SECTION 7.4. Section 7.4 Is hereby amended and restated in
its entirety as follows:
*Section 7.4 Special License Grant.
(a) From time to time and at HP's sole discretion, HP shall sell at a price of
$0.01 per build a portion of the NAN and NDA Products (the "Source") to Symantec
for the purpose of incorporating in the Source an appropriate database with the
same or superior functionality to C-Index/II. As soon as reasonably practicable,
Symantec shall, using its computers and related equipment, complete the
incorporation of such database into the Source (the "Completed Builds") and
shall sell at a price of $0.01 per build such Completed Builds to HP.
Thereafter, HP may dispose of such Completed Builds at its sole discretion. HP
acknowledges that Symantec may need certain software tools and compilers which
are currently owned or licensed by HP in order to produce the Completed Builds.
HP will pay Symantec $1,000 as a fully-paid up license for the final Completed
Build. In that regard, upon reasonable requests by Symantec and pursuant to any
rights that HP may have, HP agrees to license such tools to Symantec. In
addition, HP agrees to license to Symantec all necessary equipment for Symantec
to produce the Completed Builds at a fee to be negotiated in good faith
following the Closing.
(b) HP and Symantec will mutually agree on the appointment of one or more
persons, who shall not be employees of HP, to perform consulting services to
produce the Completed Builds.
(c) HP will develop and release software containing all or any part of the
Products in which C-Index/II has been replaced with another database (the "New
Database Software") as quickly as is
65
commercially reasonable. HP acknowledges that it would have replaced this
database in any event, but would not have engaged in such development prior to
the release of the next release of NAS (the "Next Release"), but for the
commitment hereunder.
(d) HP may set-off that portion of its expenses (which are directly attributed
to the parallel development of the New Database Software prior to the initial
release of the Next Release) for the development of the New Database Software
(the "Development Expenses"), that HP would not have otherwise incurred, but
for its obligations to accelerate development under subsection 7.4(c) above,
against the Purchase Price pursuant to Section 10.7 hereof. Notwithstanding the
foregoing, HP's right to set-off the Development Expenses will terminate at such
time as (i) Symantec has developed and delivered to HP a version of the Next
Release that does not contain C-Index/II or (ii) Symantec has provided to HP a
license to use C-Index/II in substantially the form attached hereto as Exhibit A
(the "New C-Index License"). Such development expenses may include charges on or
after May 5, 1997 of up to $100,000 for the cost of a new database.
(e) Symantec, hereby grants to HP any and all rights that Symantec may obtain at
a future date under the New C-Index License with respect to the Products.
Each of HP and Symantec agree to use its reasonable best efforts to
incorporate and expand upon the provisions set forth above in a mutually
satisfactory agreement to be executed within four weeks following the Closing
Date; provided, that, in the event that, for whatever reason, the parties are
unable to timely or otherwise execute such a definitive agreement, paragraphs
(a) through (e) above shall be enforced in accordance with their terms.
Notwithstanding anything herein to the contrary, HP may, at any time and in its
sole discretion, terminate the provisions set forth in Sections 7.4(a) and (b).
2. AMENDMENT TO SECTION 10.3.
(a) The first sentence of Section 10.3(a) is hereby amended and
replaced in its entirety as follows:
"Except for Losses and Expenses related to Trio, the liabilities and obligations
of Symantec arising under this Article 10 shall commence only following the
incidence of Losses and Expenses aggregating $150,000, following which all
claims starting from the first dollar shall be recoverable as provided in this
Agreement."
(b) The first sentence of Section 10.3(b) is hereby amended and
replaced in its entirety as follows:
"The liabilities and obligations of HP and any HP Group Member arising under
this Article 10 shall commence only following the incidence of Losses and
Expenses (incurred by any and all Indemnified Parties) aggregating $150,000,
following which all claims starting from the first dollar shall be recoverable
as provided in this Agreement."
66
3. AMENDMENT TO SECTION 10.7. The first sentence of Section 10.7 of the
Agreement is hereby amended and replaced in its entirety with the following:
"HP shall be entitled to set-off the amount of any claim reasonably submitted in
good faith under Section 10.1 as a Loss and/or Expense or by way of
indemnification against any other amounts payable by HP to Symantec whether
under this Agreement or otherwise as HP's sole monetary remedy."
4. AMENDMENT TO EXHIBIT A-2. Any and all agreements among Trio Systems,
LLC and Symantec are hereby removed from the list of "Transferred Agreements"
under Exhibit A-2 of the Agreement.
5. GENERAL. The General Provisions of Article 12 of the Agreement are
hereby incorporated into and deemed applicable to this Amendment. Subject to the
foregoing amendments and restatements, the Agreement remains in full force and
effect. Each of HP and Symantec hereby agree that the terms and conditions of
this Amendment shall remain confidential and shall not be disclosed to any third
party, whether a governmental entity, pursuant to a legal proceeding or
otherwise, without the written consent of the other party, unless such
disclosure is required by law.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed on the date first written above.
"HP"
HEWLETT-PACKARD COMPANY,
a California corporation
By: /s/ XXXX XXXXX
---------------------------------
Name: XXXX XXXXX
--------------------------------
Title: BUSINESS DEV. MGR.
--------------------------------
"Symantec"
SYMANTEC CORPORATION,
a Delaware corporation
By: /s/ XXXXX XXXXX
---------------------------------
Name: XXXXX XXXXX
---------------------------------
Title:
---------------------------------
