EXHIBIT 10.1
EXECUTION COPY
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ASSET PURCHASE AGREEMENT
BY AND AMONG
ACT TELECONFERENCING, INC.,
ACT VIDEOCONFERENCING, INC.
AND
PICTURETEL CORPORATION
DATED AS OF OCTOBER 4, 2001
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TABLE OF CONTENTS
1. Closing..................................................................1
1.1. Closing Date.................................................1
1.2. Sale of Assets...............................................1
1.3. Xxxx of Sale; Assumption Agreement; Power of Attorney........2
1.4. No Other Liabilities or Obligations Assumed..................2
1.5. Excluded Assets..............................................3
1.6. Purchase Price; Payment......................................3
1.7. Purchase of Shares by Buyer..................................4
2. Representations and Warranties of Seller.................................4
2.1. Organization and Standing....................................4
2.2. Authorization and Binding Obligations........................5
2.3. No Contravention.............................................5
2.4. Compliance with Laws.........................................5
2.5. Tax Matters..................................................5
2.6. Employee Benefit Plans; ERISA; Employees.....................6
2.7. Litigation...................................................7
2.8. Agreements...................................................7
2.9. Suppliers and Customers......................................8
2.10. Tangible Property............................................8
2.11. Intellectual Property........................................8
2.12. Third-Party Programs, Rights, etc............................9
2.13. Financial Statements of the CSC Operations...................9
2.14. Certain Transactions.........................................9
2.15. No Undisclosed Liabilities..................................10
2.16. Interested Party Transactions...............................10
2.17. Assets......................................................11
2.18. Securities Act Matters......................................11
2.19. Brokers or Finders..........................................12
2.20. Information Furnished by Seller.............................12
3. Representations and Warranties of Buyer and Buyer Parent................12
3.1. Organization and Standing...................................12
3.2. Authorization and Binding Obligations.......................12
3.3. No Contravention............................................13
3.4. Issuance of the Shares......................................13
3.5. SEC Filings.................................................13
3.6. Brokers or Finders..........................................14
3.7. Information Furnished to Seller.............................14
3.8. Registration Rights.........................................14
4. Additional Agreements Prior to the Closing..............................14
4.1. Employees...................................................14
4.2. Control and Conduct of the CSC Operations...................15
4.3. Certain Transactions........................................15
4.4. Insurance...................................................15
4.5. Performance of Assumed Contracts............................15
4.6. Consents....................................................15
4.7. Access to Information.......................................15
4.8. Notice of Events............................................15
4.9. Updating of Disclosure Schedule.............................16
5. Closing Conditions and Deliveries.......................................16
5.1. Conditions to Buyer's Obligations...........................16
5.2. Conditions to Seller's Obligations..........................18
6. Indemnification.........................................................19
6.1. Indemnification by Seller...................................19
6.2. Indemnification by Buyer and Buyer Parent...................20
6.3. Indemnification Procedure...................................20
6.4. Limitations on Indemnification..............................21
6.5. Payment of Indemnification Claims...........................21
6.6. Exclusive Remedy............................................22
7. Post-Closing Covenants..................................................22
7.1. Further Assurances; Cooperation.............................22
7.2. Delivery of Assets..........................................22
7.3. Books and Records...........................................22
7.4. Litigation Support..........................................22
7.5. Destruction of Copies of Certain Assets.....................23
7.6. Employee Matters............................................23
7.7. Non-Competition.............................................24
7.8. Non-Solicitation............................................25
7.9. Consents....................................................26
8. Miscellaneous...........................................................26
8.1. Governing Law...............................................26
8.2. Jurisdiction................................................26
8.3. Survival; Termination.......................................26
8.4. Notices.....................................................27
8.5. Entire Agreement; Amendments................................28
8.6. Counterparts................................................28
8.7. Headings....................................................28
8.8. Public Announcements........................................28
8.9. Waiver......................................................28
8.10. Binding Effect and Assignment...............................28
8.11. Confidentiality.............................................29
8.12. Buyer Parent Guarantee......................................29
8.13. Expenses....................................................29
8.14. No Third Party Beneficiaries................................29
8.15. Bulk Sales Laws.............................................29
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EXHIBIT INDEX
EXHIBIT A Form of Seller Note
EXHIBIT B Form of Escrowed Note
EXHIBIT C Xxxx of Sale
EXHIBIT D Assumption Agreement
EXHIBIT E Escrow Agreement
EXHIBIT F Registration Rights Agreement
EXHIBIT G Opinion of Ropes & Xxxx
EXHIBIT H Opinion of Faegre & Xxxxxx
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "AGREEMENT") is made as of this
4th day of October, 2001, by and between ACT Teleconferencing, Inc., a
Colorado corporation ("BUYER PARENT"), ACT Videoconferencing, Inc., a
Minnesota corporation and a wholly-owned subsidiary of Buyer Parent
("BUYER"), and PictureTel Corporation, a Delaware corporation ("SELLER"). The
Buyer Parent, Buyer and Seller are collectively referred to herein as the
"Parties".
This Agreement contemplates a transaction in which the Buyer will
purchase the tangible and intangible assets described in Section 1.2 below as
used in, or necessary for the operation of, the the CSC Operations (as
defined below), and will assume certain liabilities thereof, in consideration
of the Purchase Price (as defined below). "CSC Operations" shall consist of
the following managed video conferencing services provided on a fee for
services basis, to the extent and in the form conducted by Seller on the date
hereof: (1) multipoint bridging; (2) point-to-point call launching; (3)
remote bridge management in which the customer owns the bridge but it is
managed remotely; (4) room scheduling done using phone, fax or a web-based
interface; and (5) to the extent directly relating to providing the foregoing
services (1) through (4), problem management (fault identification, tracking
and resolution services), scheduling, event management and video streaming.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises, agreements, representations, warranties, and covenants
herein contained, the Parties agree as follows.
1. CLOSING
1.1. CLOSING DATE. Subject to the terms and conditions of this
Agreement, the closing (the "CLOSING") of the transactions contemplated
hereby shall be held at the offices of counsel to Seller, Ropes & Xxxx, Xxx
Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 no later than five Business
Days following the satisfaction or waiver of all conditions to the
obligations of the parties contemplated hereby (other than conditions with
respect to certificates and other ancillary documents to be delivered at the
Closing), or on such other date or at such other location as may be mutually
agreed upon by the parties. The date on which the Closing occurs is referred
to herein as the "CLOSING DATE".
1.2. SALE OF ASSETS. At the Closing, Seller shall sell to Buyer,
free and clear of all liens, mortgages, security interests, encumbrances,
pledges, charges, restrictions on transfer, or adverse claims (collectively,
"LIENS") other than Liens set forth on PARAGRAPH 1.2 of the Disclosure
Schedule, and Buyer shall buy from Seller, all of Seller's right, title and
interest in the following (collectively, the "ASSETS"):
(a) the assets described on Paragraph 1.2(i) of the
Disclosure Schedule;
(b) Seller's entire right, title and interest in, to
and under the contracts, agreements, licenses, permits, arrangements,
permissions, purchase orders taken by Seller that
are not accounts receivable, and other commitments and arrangements with
respect to the CSC Operations identified on PARAGRAPH 1.2(c) of the
Disclosure Schedule(the "ASSUMED CONTRACTS");
(c) all rights of Seller under express or implied
warranties from suppliers or contractors with respect to the Assets;
(d) all claims, causes of action, choses in action,
rights of recovery and rights of set-off of any kind arising out of the
Assets or the CSC Operations, unless arising out of an Excluded Asset;
(e) all existing business and marketing records of the
CSC Operations, including accounting and operating records, asset ledgers,
inventory records, budgets, databases, customer lists, event calendars,
information and data respecting leased or owned equipment, files, books,
correspondence and mailing lists, creative, promotional and advertising
materials and brochures, and other business records; PROVIDED, HOWEVER, that
if any such business or marketing records are not related exclusively to the
CSC Operations, Seller shall furnish to Buyer and Buyer shall receive only
reasonable access to such business or marketing records;
(f) all cash collected after September 30, 2001 for
invoices to the extent relating to conferences occurring on or after October
1, 2001.
1.3. XXXX OF SALE; ASSUMPTION AGREEMENT. The sale and delivery
of the Assets shall be effected by a Xxxx of Sale and Assignment in
substantially the form of EXHIBIT C (the "XXXX OF SALE"), an Assumption
Agreement in substantially the form of EXHIBIT D (the "ASSUMPTION
AGREEMENT"), and such deeds, endorsements, assignments and other instruments
of transfer and conveyance, agreements, and documents as may be reasonably
required to effect the provisions of Section 1.2 as may be reasonably
requested by Buyer's counsel.
1.4. NO OTHER LIABILITIES OR OBLIGATIONS ASSUMED. The Buyer
shall assume as of the Closing (a) all obligations of the Seller under the
agreements, contracts, leases, licenses and other arrangements listed on
PARAGRAPH 1.2(c) of the Disclosure Schedule that arise from or relate to
periods after September 30, 2001 and (b) the liabilities set forth on
PARAGRAPH 1.4 of the Disclosure Schedule (together, the "ASSUMED
LIABILITIES"), which Assumed Liabilities Buyer hereby assumes. Other than the
Assumed Liabilities, Buyer expressly does not, and shall not, assume or be
deemed to have assumed under this Agreement or by reason of any transaction
contemplated hereunder or otherwise, any debts, liabilities (contingent or
otherwise) or obligations of Seller or the CSC Operations of any nature
whatsoever, whether the same are direct or indirect, fixed or contingent, or
known or unknown, whether arising under an agreement or contract or
otherwise. Notwithstanding any other provision of this Agreement, the Assumed
Liabilities shall not include any liabilities or obligations of Seller with
respect to accounts payable and payment obligations incurred in the conduct
of the CSC Operations through and including September 30, 2001. Buyer shall
forever defend, indemnify and hold harmless Seller from and against any and
all liabilities, obligations, claims, damages (including incidental and
consequential damages), costs and expenses (including court costs and
reasonable attorneys' fees) related to or arising from Buyer's failure to
fully perform and discharge the responsibilities of Seller with respect to
the Assumed Liabilities. Buyer further agrees to pay and discharge all such
liabilities and obligations as they become due.
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1.5. EXCLUDED ASSETS. Anything to the contrary notwithstanding,
the Assets shall not include any of the following rights, properties or
assets (collectively, the "EXCLUDED ASSETS"):
(a) all accounts receivable and other rights to
receive payment generated in the conduct of the CSC Operations through and
including September 30, 2001; and
(b) the assets described in PARAGRAPH 1.5(b) of the
Disclosure Schedule.
1.6. PURCHASE PRICE; PAYMENT. The consideration to be paid by
Buyer for the Assets (the "PURCHASE PRICE") shall consist of:
(i) 769,231 shares of the common stock of Buyer
Parent, no par value (the "COMMON STOCK");
(ii) $1,000,000 cash (the "CASH PAYMENT");
(iii) promissory notes issued by Buyer Parent in
favor of Seller (each individually a "NOTE"), in the combined aggregate
original principal amount of $2,500,000; and
(iv) Buyer's assumption of the Assumed
Liabilities.
(b) DELIVERY OF SHARES AND THE NOTES. At the Closing,
Buyer shall, subject to the provisions of Section 1.6(a):
(i) deliver to Seller (A) a certificate
representing 692,308 shares of Common Stock, (B) ninety percent (90%)
of the Cash Payment required under Section 1.6(a)(ii) by wire transfer
of immediately available funds pursuant to wire transfer instructions
delivered by Seller to Buyer; and (C) a Note in the original principal
amount equal to ninety percent 90% of the Notes issuable under Section
1.6(a)(iii) in the form of EXHIBIT A (the "SELLER NOTE");
(ii) deliver to State Street Bank and Trust
Company, as escrow agent (the "ESCROW AGENT"), (A) 76,923 shares of
Common Stock (the "ESCROWED SHARES"); (B) ten percent (10%) of the Cash
Payment required under Section 1.6(a)(ii) (the "ESCROWED CASH"); and
(C) a Note in the original principal amount equal to ten percent (10%)
of the Notes issuable under Section 1.6(a)(iii) in the form of EXHIBIT
B (the "ESCROWED NOTE"), each of which is to be held in escrow to
secure Seller's indemnification obligations under this Agreement
pursuant to the terms of an Escrow Agreement in the form of EXHIBIT E
(the "ESCROW AGREEMENT").
(c) ALLOCATION. Within 30 days following the Closing
Date, Buyer and Seller (which approval Seller shall not unreasonably
withhold), shall mutually agree upon and prepare and finalize a schedule
setting forth an allocation of the consideration described in Section 1.6(a)
among the Assets (the "ALLOCATION SCHEDULE"). Each party agrees to report the
transactions contemplated hereby for federal income tax and all other tax
purposes (including, without limitation, for purposes of Section 1060 of the
Internal Revenue Code of 1986 (the "Code")) in a manner consistent with the
Allocation Schedule, and in accordance with all applicable rules and
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regulations, and to take no position inconsistent with the allocation set
forth therein in any administrative or judicial examination or other
proceeding. Each of Buyer and Seller shall timely file the appropriate forms
in accordance with the requirements of Section 1060 of the Code and this
Section.
1.7. PURCHASE OF SHARES BY BUYER. In the event Buyer Parent
issues debt or equity securities to non-Affiliates (as defined in the
Securities Act of 1933, as amended) prior to the second anniversary of the
Closing Date, the proceeds of which (gross of underwriting commissions,
discount and expenses) exceed $5,000,000, other than in a firm commitment
registered public offering, (a "FINANCING EVENT"), Buyer Parent shall, within
ten (10) days of such consummation, provide written notice (the "Notice") to
Seller of the occurrence of the Financing Event. Within ten (10) days from
Seller's receipt of the Notice, Seller may require Buyer Parent to purchase
from Seller shares of Common Stock received as part of the Purchase Price, at
a price equal to (i) in the case of a Financing Event involving the sale of
Common Stock of the Buyer Parent, the purchase price of the Common Stock sold
therein, or (ii) in the case of any other Financing Event, the price equal to
the average of the closing sale prices of the Common Stock on the Nasdaq
National Market during the five (5) trading days immediately preceding the
date of the Financing Event; PROVIDED, HOWEVER, that in no event shall Buyer
Parent be obligated to use greater than twenty percent (20%) of Buyer
Parent's aggregate proceeds from the Financing Event for such repurchase. In
the event of a Financing Event within two years of the Closing Date, Buyer
Parent shall have the right to purchase from Seller up to one hundred percent
(100%) of the Common Stock received as part of the Purchase Price provided
that the consideration Seller receives for such Common Stock (net of any
underwriting commissions, discounts and expenses) as calculated above is an
amount equal to or greater than $7.00 per share (as appropriately adjusted
for stock splits, stock combinations, stock dividends and recapitalizations).
2. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer and Buyer Parent,
subject to such exceptions as are disclosed in the disclosure schedule
supplied by Seller to Buyer Parent (the "Seller Disclosure Schedule") dated
as of the date hereof, as follows (notwithstanding anything to the contrary
contained herein, Seller is not making any representation or warranty with
respect to the Excluded Assets or Excluded Liabilities):
2.1. ORGANIZATION AND STANDING. Seller (a) is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware, (b) has full right, power and authority to enter into and
perform and do all things contemplated under this Agreement necessary to give
effect to the provisions of this Agreement, to own and lease the Assets and
to carry on and operate the CSC Operations as now being conducted and
proposed to be conducted by it under existing agreements, (c) is duly
qualified or licensed to do business and is in good standing as a foreign
corporation in every jurisdiction in which the character of the Assets or
nature of the CSC Operations requires such qualification, except to the
extent that the failure to be so qualified or licensed would not have a
material adverse effect on the CSC Operations or Assets, and (d) except as
set forth on Paragraph 2.1 of the Disclosure Schedule, does not own any of
the Assets, and does not conduct any of the CSC Operations, through any other
corporation, limited liability company, partnership or other entity.
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2.2. AUTHORIZATION AND BINDING OBLIGATIONS. The execution,
delivery and performance by Seller of this Agreement have been duly and
validly authorized by all necessary corporate action. This Agreement has been
duly executed and delivered by Seller and constitutes the valid and binding
agreement of Seller, enforceable in accordance with its terms, except as its
enforceability may be limited by bankruptcy, insolvency, moratorium or other
laws relating to or affecting creditors' rights generally and the exercise of
judicial discretion in accordance with general equitable principles.
2.3. NO CONTRAVENTION. The execution, delivery and performance
of this Agreement, the consummation of the transactions contemplated hereby
and the compliance with the provisions hereof by Seller does not (a) violate
any provision of the certificate of incorporation or bylaws of Seller, (b)
conflict with, result in the breach of, or constitute a default under, or
result in the creation of any Lien upon any of the Assets, or require any
authorization, consent, approval, exemption or other action by or notice to
any third party, court or other governmental or administrative body, under
the provisions of any agreement (including, without limitation, the Merger
Agreement (as defined below)) or other instrument to which Seller is a party
or by which any of the Assets are bound or affected or (c) violate any laws,
regulations, orders or judgments applicable to Seller, except in each of
clause (b) and (c), where the conflict, breach, default, Lien, violation or
failure to give or receive such authorization, consent, approval, exemption
or other action would not have a material adverse effect on the CSC
Operations or Assets or on Seller's ability to consummate the transactions
contemplated by this Agreement (a "MATERIAL ADVERSE EFFECT").
2.4. COMPLIANCE WITH LAWS. Seller has complied with, and is now
in compliance with, all material laws, rules, regulations, orders, judgments
and decrees of any governmental, regulatory or administrative body, agency or
authority, or any court or judicial authority (each, an "AUTHORITY")
applicable to the CSC Operations. Seller possesses each material franchise,
license, permit, authorization, certification, consent, variance, permission,
order or approval of or from any Authority, and has filed all filings,
notices or recordings with any such Authority (collectively, "LICENSES")
material to, or necessary for the conduct of, the CSC Operations and is in
compliance with each of such Licenses, except to the extent that the failure
to comply would not have a Material Adverse Effect. Each such License is
identified on PARAGRAPH 2.4 of the Disclosure Schedule. No proceeding or
other action is pending or, to the best knowledge of Seller, threatened, to
revoke, amend, or limit any License.
2.5. TAX MATTERS. Seller has, within the times and in the manner
prescribed by law, filed all required tax returns, including sales and use
tax returns, has paid or provided for all taxes, including sales and use
taxes owed by Seller, with respect to the CSC Operations (whether or not
shown on any tax return to be due and owing by it), has paid or provided for
all deficiencies or other assessments of taxes, interest or penalties owed by
it, and all such tax returns were correct and complete in all material
respects when filed. No taxing Authority has asserted any claim for the
assessment of any additional taxes of any nature with respect to any periods
covered by any such tax returns, and all taxes or other charges required to
be withheld or collected by Seller with respect to the CSC Operations have
been duly withheld or collected and, to the extent required, have been paid
to the proper taxing Authority or properly segregated or deposited as
required by law.
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2.6. EMPLOYEE BENEFIT PLANS; ERISA; EMPLOYEES.
(a) As used in this Agreement, the term "ERISA
AFFILIATE" means any person or entity (whether or not incorporated) which, by
reason of its relationship with Seller or a subsidiary is required to be
aggregated with Seller or a subsidiary under Sections 414(b), 414(c), 414(m)
or 414(o) of the Code, or which, together with Seller or a subsidiary is a
member of a controlled group within the meaning of Section 4001(a) of ERISA.
(b) PARAGRAPH 2.6(b) of the Disclosure Schedule lists
each "employee benefit plan" as defined in Section 3(3) of ERISA and each
other employment severance, deferred compensation, incentive, fringe benefit,
change in control, retention, stock option or other equity based or other
compensatory or benefit plan, policy, agreement or arrangement that (i) is
maintained, administered, contributed to or required to be contributed to by
Seller, or its ERISA Affiliates or to which Seller or any ERISA Affiliate is
a party, and (ii) covers any current or former employee or other personnel of
Seller or any of its ERISA Affiliates who provides or has provided services
to or in connection with the CSC Operations. Each such plan, policy,
agreement or arrangement is herein referred to as an "EMPLOYEE BENEFIT PLAN."
Copies of the Employee Benefit Plans, including, but not limited to, any
trust instruments, insurance contracts and all amendments thereto have been
delivered or made available to Buyer. At no time within the six (6) year
period ending on the date hereof has the Seller or any of its ERISA
Affiliates been obligated to contribute to or a participating employer under
a multiemployer plan within the meaning of Section 3(37) of ERISA or an
employee pension plan covered by Title IV of ERISA, Section 302 of ERISA or
Section 412 of the Code.
(c) Each Employee Benefit Plan (and each related
trust, insurance contract, or fund) has been maintained, funded and
administered in accordance with the terms of such Employee Benefit Plan and
complies in form and in operation in all material respects with the
applicable requirements of ERISA and the Code except to the extent that the
failure to perform such acts would not have a Material Adverse Effect.
(d) PARAGRAPH 2.6(d) of the Disclosure Schedule
contains a true and complete list of all employees of Seller who are employed
or performing services in the CSC Operations worldwide (collectively, the
"CSC OPERATIONS EMPLOYEES") on the date hereof, the title and rate of
compensation of each CSC Operations Employee, the amount of any accrued
bonuses, sick leave, maternity leave and other leave for such personnel as of
the date hereof, and the amount of any accrued vacation for such personnel
not located in the Asia Pacific Region. Seller is not in default with respect
to any withholding or other employment taxes or payments with respect to
accrued vacation or severance pay on behalf of any CSC Operations Employee or
independent contractor for which it is obligated on the date hereof, and has
made all such necessary payments or adjustments arising through the date
hereof. Seller has not instituted any "freeze" of, or delayed or deferred the
grant of, any cost-of-living or other salary adjustment for any CSC
Operations Employee. PARAGRAPH 2.6(d) of the Disclosure Schedule lists the
name, title and rate of compensation of each employee of the CSC Operations
whose employment was terminated within 90 days prior to the date hereof.
Seller has not engaged in any unfair labor practice or discriminated on the
basis of race, color, religion, sex, national origin, age, disability or
handicap in its employment conditions or practices with respect to the CSC
Operations. No employee or independent contractor of the CSC Operations has
filed or, to the knowledge of Seller, threatened
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any claims against Seller relating to employment or similar matters
(including, without limitation, compensation and benefits) with Seller with
respect to the CSC Operations. There are not in existence or, to the
knowledge of the Seller, threatened any work stoppages respecting employees
or independent contractors of Seller with respect to the CSC Operations or
unfair labor practice complaints against Seller with respect to the CSC
Operations. Seller is not a party to any collective bargaining agreement, no
representation question exists respecting the CSC Operations Employees and no
collective bargaining agreement is currently being negotiated by Seller
covering its employees, nor is any grievance procedure or arbitration
proceeding pending under any collective bargaining agreement and no claim
therefor has been asserted. Seller has not received notice from any union or
any employee setting forth demands for representation, elections or for
present or future changes in wages, terms of employment or working
conditions. There have been no audits of the equal employment opportunity
practices of Seller, nor does any basis for any such audit exist.
2.7. LITIGATION. No material adverse claim, dispute,
governmental investigation, suit, action, arbitration, legal, administrative
or other proceeding of any nature, domestic or foreign, criminal or civil, at
law or in equity, is pending or, to the knowledge of the Seller, threatened
by or against the Seller relating to the CSC Operations or the Assets.
2.8. AGREEMENTS.
(a) PARAGRAPH 2.8 of the Disclosure Schedule sets
forth a true and complete list of all agreements that involve, in any six (6)
month period, payments by Seller in excess of $15,000 individually or $30,000
in the aggregate, or material commitments (including guarantees of any
indebtedness) or material instruments binding Seller as of the date hereof
with respect to the CSC Operations or the Assets. True and complete copies of
each such agreement, commitment or instrument have been delivered or made
available to Buyer or Buyer Parent.
(b) To the knowledge of Seller, each Assumed Contract
is the valid and binding obligation of the other contracting party,
enforceable in all material respects in accordance with its terms against the
other contracting party, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or
other similar laws and by general principles of equity, has not been
cancelled in whole or in part and is in full force and effect.
(c) Seller has fulfilled all material obligations
required to have been performed by it prior to the date hereof with respect
to each Assumed Contract.
(d) To the knowledge of Seller, no other contracting
party to any Assumed Contract is now in breach thereof, and there are not
now, nor have there been in the twelve (12) month period prior to the date
hereof, any material disputes between Seller and any other contracting party
to any Assumed Contract.
(e) Each Assumed Contract shall be validly assigned to
Buyer at Closing.
(f) PARAGRAPH 2.8(f) of the Disclosure Schedule sets
forth a true and complete list of each proposed agreement, commitment,
arrangement, or other understanding relating to the CSC Operations or the
Assets under current discussion between Seller and any third party
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that would, or reasonably could be expected to, be required to be disclosed
pursuant to any provision of this Agreement, if same had been executed prior
to and remained in effect as of the date hereof. True and complete copies of
the most recent draft of each such agreement and all other documents
evidencing the current state of such discussions have been delivered or made
available to Buyer or Buyer Parent.
2.9. SUPPLIERS AND CUSTOMERS. PARAGRAPH 2.9 of the Disclosure
Schedule is a true and complete list of (a) the suppliers of goods or
services to the CSC Operations in an amount in excess of $15,000 individually
or $30,000 in the aggregate within the six (6) months prior to June 30, 2001,
and (b) customers with whom Seller has done business with respect to the CSC
Operations within six (6) months prior to June 30, 2001. As of the date
hereof, no person listed in PARAGRAPH 2.9 of the Disclosure Schedule has
canceled or otherwise terminated its relationship with Seller.
2.10. TANGIBLE PROPERTY. Seller has good and marketable title to
each item of tangible personal property that is an Asset, free and clear of
all Liens, and, with immaterial exceptions, each such item of tangible
personal property is in good operating condition and repair (ordinary wear
and tear excepted). PARAGRAPH 2.10 of the Disclosure Schedule contains a
complete and accurate list setting forth a description of each item of
tangible property that is an Asset, and describes the nature of Seller's
interest in any Asset listed thereon that is not owned entirely by Seller
free and clear of any Lien.
2.11. INTELLECTUAL PROPERTy. Seller owns, Buyer shall receive at
Closing, and Seller's intellectual property includes, all assets described in
Section 1.2(b) used in or necessary for the operation of the CSC Operations.
PARAGRAPH 2.11 of the Disclosure Schedule sets forth all registered
trademarks and service marks, all reserved trade names, all registered
copyrights, and all issued patents, and all applications therefor, used in or
necessary for the operation of the CSC Operations.
(a) PARAGRAPH 2.11(a) of the Disclosure Schedule sets
forth the form and placement of the proprietary legends and copyright notices
displayed in or on any of the Assets, or any software programs included in
the Assets. In no instance has the eligibility of such software programs for
protection under applicable copyright law been forfeited to the public domain.
(b) There has been no material unauthorized disclosure
of any trade secrets of the CSC Operations by any person or entity. The
source code and system documentation relating to any software programs
included in the Assets have been disclosed by Seller only on a confidential
basis and only to employees, consultants, vendors, suppliers and customers
having "a need to know" the contents thereof.
(c) All personnel, including employees, agents,
consultants, and contractors, who have contributed to or participated in the
conception and development of Seller's proprietary software programs,
technical documentation, or intellectual property with respect to the Assets
and CSC Operations, either (i) have been party to a "work-for-hire"
arrangement or agreement with Seller that by its terms accords to Seller
ownership of all tangible and intangible property thereby arising in
accordance with applicable federal and state law, or (ii) have
8
executed appropriate instruments of assignment in favor of Seller as assignee
that by their terms convey to Seller ownership of all tangible and intangible
property thereby arising.
(d) No intellectual property right or other claims
have been asserted by any person or entity to the use of any Asset. To the
knowledge of Seller, the use of any Asset by Seller does not infringe on the
intellectual property rights or other rights of any person or entity.
(e) Seller has good and marketable title to or valid
leasehold interest in, each intangible Asset, including, but not limited to,
each item of intellectual property used in and material to, or necessary for
the operation of, the CSC Operations, free and clear of any Lien.
2.12. THIRD-PARTY PROGRAMS, RIGHTS, ETC. Seller has validly and
effectively obtained the right and license to use the third-party programs
included in the Assets and, with respect to such third-party programs, such
other rights and licenses as provided for under the agreements relating
thereto, and, except as set forth on PARAGRAPH 2.12 of the Disclosure
Schedule, Seller has the right to assign and transfer to Buyer the foregoing
rights and licenses.
(a) Seller has not granted, transferred, or assigned
any right, title or interest in or to any Asset to any person or entity.
There are no contracts, agreements, licenses, and other commitments and
arrangements in effect with respect to the marketing, distribution,
licensing, or promotion of any material Asset by any independent salesperson,
distributor, sublicensor, or other remarketer or sales organization.
2.13. FINANCIAL STATEMENTS OF THE CSC OPERATIONS. Attached hereto
as PARAGRAPH 2.13 of the Disclosure Schedule are true, correct and complete
copies of unaudited statements of income of the CSC Operations for the
quarters ended June 30 and March 31, 2001, and for the year ended December
31, 2000 (the "FINANCIAL STATEMENTS"), prepared by Seller. The Financial
Statements are correct in all material respects and have been prepared in
accordance with generally accepted accounting principles, consistently
applied by Seller ("GAAP"), except that the Financial Statements may lack
footnotes. The Financial Statements present fairly in all material respects
the financial condition, operating results and cash flows of the CSC
Operations as of the dates and during the periods indicated therein, subject
to normal year-end adjustments, which will not be material in amount or
significance.
2.14. CERTAIN TRANSACTIONS. Since June 30, 2001, Seller has
conducted the CSC Operations in the ordinary course consistent with past
practice and has not, in any manner with respect to the CSC Operations:
(a) entered into any transaction, contract or
commitment individually involving payments in excess of $50,000 (other than
this Agreement or as disclosed in PARAGRAPH 2.8 of the Disclosure Schedule);
(b) except in the ordinary course of business
consistent with past custom and practice, including as to quantity and
frequency, incurred or paid any liability or obligation, incurred any
indebtedness for borrowed money or assumed, guaranteed, endorsed or otherwise
become responsible for the obligations of any other individual, corporation
or other entity;
9
(c) entered into or amended any employment, consulting
or other agreement with, increased any compensation payable to, awarded any
bonus to, made any loan to, paid any expense or contribution on behalf of,
given any gift to, or otherwise conferred any benefit (directly or
indirectly) upon, any of its officers, employees, shareholders or
consultants, except in the ordinary course of business consistent with past
custom and practice including as to quantity and frequency;
(d) made any capital expenditures in excess of $25,000
other than those made the ordinary course of business, consistent with past
custom and practice;
(e) sold, transferred, leased, assigned or otherwise
disposed of any asset or properties of the CSC Operations, except in the
ordinary course of business, consistent with past custom and practice;
(f) created or assumed or permitted to be created or
assumed any Lien affecting any asset or properties of the CSC Operations;
(g) made any tax election or settled or compromised
any federal, state, local or other tax liability either not in accordance
with past practice, or which has had or could reasonably be expected to have
a material adverse effect upon the CSC Operations or the Assets;
(h) taken any action that was intended or may
reasonably be expected to result in any of the representations and warranties
set forth in this Agreement being or becoming untrue;
(i) made a material change in the methods of
accounting in effect at June 30, 2001, except as required by GAAP;
(j) except in the ordinary course of business
consistent with past practice and custom, created, renewed, amended or
terminated or given notice of a proposed renewal, amendment of termination
of, any material contract, agreement or lease for goods or services to which
Seller is a party or by which Seller or any of the Assets are bound; or
(k) agreed to do any of the foregoing.
2.15. NO UNDISCLOSED LIABILITIES. Except as set forth on the
Schedules to this Agreement, as of the date hereof, to Seller's knowledge,
Seller has no direct or indirect indebtedness, liabilities, claims, losses,
damages, deficiencies, obligations or responsibilities, liquidated or
unliquidated, accrued, absolute, contingent, or otherwise, relating to the
CSC Operations, except for (a) liabilities set forth in the Financial
Statements or in the notes thereto and (b) liabilities which have arisen
since June 30, 2001 in the ordinary course of business.
2.16. INTERESTED PARTY TRANSACTIONS. Neither Seller nor any
officer of Seller has (i) an interest in any entity that furnished or sold,
or furnishes or sells, services, products or technology that the CSC
Operations furnishes or sells, or proposes to furnish or sell, or (ii) any
interest in any entity that purchases from or sells or furnishes to the CSC
Operations, any goods or services, or (iii) a beneficial interest in any
agreements of the CSC Operations; PROVIDED, HOWEVER, that ownership of no
more than one percent (1%) of the outstanding voting stock of a publicly
traded
10
corporation shall not be deemed to be an "interest in any entity" for
purposes of this PARAGRAPH 2.16 of the Disclosure Schedule.
2.17. ASSETS. Except for the Excluded Assets, the Assets are all
of the assets, properties, goodwill, and rights of every nature, kind and
description, whether tangible or intangible, real, personal or mixed,
wherever located, used in and material to, or necessary for the operation of,
the CSC Operations.
2.18. SECURITIES ACT MATTERS. Seller acknowledges that its
representations and warranties contained herein are being relied upon by
Buyer as a basis for the exemption of the issuance of the Shares hereunder
from the registration requirements of the Securities Act and any applicable
state securities laws.
(a) Seller understands that (i) when issued, the
Shares will not be registered under the Securities Act or any state
securities laws by reason of their issuance in a transaction exempt from the
registration requirements of the Securities Act and applicable state
securities laws and (ii) the Shares must be held indefinitely unless a
subsequent disposition thereof is registered under the Securities Act and
applicable state securities laws or is exempt from such registration.
(b) Seller is acquiring the Shares for its own account
and not with a view to, or for sale in connection with, directly or
indirectly, any distribution thereof that would require registration under
the Securities Act or applicable state securities laws or would otherwise
violate the Securities Act or such state securities laws.
(c) Seller has relied upon independent investigations
that it and its representatives have made and is fully familiar with the
business, results of operations, financial condition, prospects and other
affairs of Buyer Parent and realizes that the Shares are a speculative
investment involving a high degree of risk for which there is no assurance of
any return.
(d) Seller has such knowledge and experience in
financial and business affairs, including investing in companies similar to
Buyer Parent, and is capable of determining the information necessary to make
an informed investment decision, of requesting such information from Buyer
Parent, and of utilizing the information that it has received from Buyer or
Buyer Parent to evaluate the merits and risks of its investment in the Shares
and is able to bear the economic risk of its investment in the Shares, and
understands that it must do so for an indefinite period of time.
(e) Seller and its attorneys, accountants, investment
and financial advisors, if any, have been provided access to such information
about Buyer Parent as it or its advisors, if any, have requested.
(f) Seller is an "accredited investor" as defined in
Regulation D under the Securities Act.
(g) Seller understands that the Shares will bear the
following legend (or a substantially similar legend):
11
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY
STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED,
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT SUCH
REGISTRATION OR THE DELIVERY TO THE COMPANY OF AN OPINION OF
COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
DISPOSITION WILL NOT REQUIRE REGISTRATION OF SUCH SECURITIES
UNDER THE SECURITIES ACT OF 1933, AS AMENDED."
2.19. BROKERS OR FINDERS. Except for Seller's engagement of
Xxxxxxxxx Xxxxxxxx Inc., Seller has not incurred, and will not incur,
directly or indirectly, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with this Agreement
or any transaction contemplated hereby. Seller shall indemnify and hold Buyer
and Buyer Parent harmless with respect to any claim by any broker, agent, or
finder claiming to have acted on behalf of Seller, respecting the subject
matter hereof.
2.20. INFORMATION FURNISHED BY SELLER. To Seller's knowledge, no
information furnished by or on behalf of Seller to Buyer or Buyer Parent
contains any untrue statement of a material fact or omits to state a material
fact necessary to make such statement, in the light of the circumstances
under which it was made, not misleading. To Seller's knowledge, all written
information, in whatever form, furnished by Seller to Buyer or Buyer Parent
was true and correct as of the date so furnished and, except as the accuracy
thereof is affected by the passage of time, remains true and correct in all
material respects as of the date hereof.
3. REPRESENTATIONS AND WARRANTIES OF BUYER AND BUYER PARENT.
Buyer and Buyer Parent jointly and severally represent and warrant
to Seller as follows:
3.1. ORGANIZATION AND STANDING. Each of Buyer and Buyer Parent
is a corporation duly incorporated, validly existing and in good standing
under the laws of the jurisdiction of its incorporation with full corporate
right, power and authority to enter into and perform and do all things
contemplated under this Agreement necessary to give effect to the provisions
of this Agreement.
3.2. AUTHORIZATION AND BINDING OBLIGATIONS. The execution,
delivery and performance by Buyer and/or Buyer Parent, as the case may be, of
this Agreement, the Note, the Registration Rights Agreement and each other
agreement and instrument entered into in connection herewith or therewith
(collectively, the "TRANSACTION AGREEMENTS") has been duly and validly
authorized by all necessary corporate action, including approval of the
entire transaction by the requisite vote of the respective board of directors
of Buyer and Buyer Parent. Each of the Transaction Agreements has been duly
executed and delivered by Buyer and/or Buyer Parent and constitutes the valid
and binding agreement of such party, enforceable in accordance with its
terms, except as its enforceability may be limited by bankruptcy, insolvency,
moratorium or other laws relating to or affecting creditors' rights generally
and the exercise of judicial discretion in accordance with general equitable
principles.
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3.3. NO CONTRAVENTION. The execution, delivery and performance
of each of the Transaction Agreements, the consummation of the transactions
contemplated hereby and thereby and the compliance with the provisions hereof
and thereof by Buyer and by Buyer Parent do not (a) violate any provision of
the articles of incorporation or bylaws of Buyer or Buyer Parent, (b)
conflict with, result in the breach of, or constitute a default under, or
require any authorization, consent, approval, exemption or other action by or
notice to any third party, court or other governmental or administrative
body, under the provisions of any agreement or other instrument to which
Buyer or Buyer Parent, as the case may be, is a party or by which the
property of Buyer or Buyer Parent is bound or affected, or (c) violate any
laws, regulations, orders or judgments applicable to Buyer.
3.4. ISSUANCE OF THE SHARES. Upon issuance, the Shares shall be
validly issued, fully paid and non-assessable and shall be free and clear of
any Liens, except that the Escrowed Shares shall be subject to the provisions
of the Escrow Agreement.
3.5. SEC FILINGS. The Common Stock is registered pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), and Buyer Parent has filed all reports, schedules, forms,
statements and other documents required to be filed by it with the Securities
and Exchange Commission (the "SEC") pursuant to the reporting requirements of
the Exchange Act (except for the form 10-Q for the quarterly period ended
June 30, 2001 which was filed one day after the applicable deadline),
including material filed pursuant to Section 13(a) or 15(d) thereof. Buyer
Parent has delivered or made available to Seller true and complete copies of
the following documents (the "SEC DOCUMENTS") filed with the SEC:
(a) Annual Report of Buyer Parent on Form 10-K for the
year ended December 31, 2000;
(b) Quarterly Reports of Buyer Parent on Form 10-Q for
the quarters ended March 31, 2001 and June 30, 2001 (and any supplement
thereto);
(c) Proxy statements (and the supplement thereto) of
Buyer Parent in connection with its Annual Meeting of Stockholders held on
June 28, 2001 and in connection with its Special Meeting of Stockholders
scheduled for November 2, 2001; and
(d) Each Current Report of Buyer Parent on Form 8-K
filed after December 31, 2000.
Neither Buyer nor Buyer Parent has provided Seller
any material non-public information or any information which, according to
applicable law, rule or regulation, should have been disclosed publicly by
Buyer but which has not been so disclosed. As of their respective dates, the
SEC Documents complied in all material respects with the requirements of the
Exchange Act and the rules and regulations of the SEC promulgated thereunder
and other federal, state and local laws, rules and regulations applicable to
such SEC Documents, and none of the SEC Documents contained any untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
SEC Documents contain all material information concerning Buyer Parent, and
no event or circumstance has
13
occurred which would require Buyer to disclose such event or circumstance in
order to make the statements in the SEC Documents not misleading on the date
hereof but which has not been so disclosed.
3.6. BROKERS OR FINDERS. Except for Buyer's engagement of
Xxxxxx, Xxxxxxxx & Company, Inc., neither Buyer nor Buyer Parent has
incurred, and will not incur, directly or indirectly, any liability for
brokerage or finders' fees or agents' commissions or any similar charges in
connection with this Agreement or any transaction contemplated hereby. Buyer
or Buyer Parent, as the case may be, shall indemnify and hold Seller harmless
with respect to any claim by any broker, agent, or finder claiming to have
acted on behalf of Buyer or Buyer Parent respecting the subject matter hereof.
3.7. INFORMATION FURNISHED TO SELLER. To the knowledge of Buyer
and Buyer Parent, no information furnished by or on behalf of Buyer or Buyer
Parent to Seller contains any untrue statement of a material fact or omits to
state a material fact necessary to make such statement, in the light of the
circumstances under which it was made, not misleading. To the knowledge of
Buyer and Buyer Parent, all written information, in whatever form, furnished
by Buyer or Buyer Parent to Seller was true and correct as of the date so
furnished and, except as the accuracy thereof is affected by the passage of
time, remains true and correct in all material respects as of the date hereof.
3.8. REGISTRATION RIGHTS. Except pursuant to agreements listed
on PARAGRAPH 3.8 of the Disclosure Schedule, true and correct copies of which
have been provided to Seller, there are no registration rights and no voting
trust, proxy, rights plan, stockholder or other agreement or understanding to
which Buyer Parent or any of its subsidiaries is a party or by which they are
bound.
4. ADDITIONAL AGREEMENTS PRIOR TO THE CLOSING
Between the date hereof and the Closing Date:
4.1. EMPLOYEES. Seller shall (a) not hire any additional CSC
Operations Employee without Buyer's Parent prior written consent; (b) not
grant any pay raises or increases in benefits to any CSC Operations
Employees; (c) notify each CSC Operations Employee (and any CSC Operations
Employee hired after the date hereof) of Seller's intent that his or her
employment by Seller shall be terminated as of the Closing and whether or not
such Employee shall be hired by Buyer or Buyer Parent; (d) use its reasonable
commercial efforts to retain the CSC Operations Employees identified on
PARAGRAPH 7.6(b) of the Disclosure Schedule; (e) pay all accrued salary,
vacation and bonuses to each CSC Operations Employee (and each CSC Operations
Employee hired after the date hereof) through September 30, 2001 (it being
understood that Buyer shall be responsible for all such amounts accruing
thereafter); and (f) use commercially reasonable efforts to comply with all
applicable laws pertaining to the discharge of CSC Operations Employees.
Attached hereto as PARAGRAPH 7.6(b) of the Disclosure Schedule (the "OFFEREE
SCHEDULE") is the list of those CSC Operations Employees who will receive
offers of employment from Buyer or Buyer Parent for the period beginning as
of the Closing.
14
4.2. CONTROL AND CONDUCT OF THE CSC OPERATIONS. Except to the
extent of the acquisition of Seller by Polycom, Inc., Seller shall use its
reasonable commercial efforts to remain in control of the Assets at all times
prior to the Closing Date, and shall conduct the CSC Operations and the
Assets in the ordinary course of business consistent with present practices
and shall use commercially reasonable efforts to preserve such business
(except as otherwise required by this Agreement).
4.3. CERTAIN TRANSACTIONS. Seller shall not, without the prior
written consent of Buyer Parent, engage in or agree to engage in any conduct
that would constitute a breach of Section 2.14.
4.4. INSURANCE. Seller shall cause to be maintained in effect
through the Closing Date property damage, liability and other insurance of
comparable type, amount and coverage as that in effect on the date of this
Agreement with respect to the Assets.
4.5. PERFORMANCE OF ASSUMED CONTRACTS. Seller shall perform in
all material respects the obligations required to be performed by it under
the Assumed Contracts consistent with Seller's past practices, and, without
the prior written consent of Buyer Parent, shall not amend in any respect or
unilaterally terminate any such Assumed Contract or waive any material right
under any such Assumed Contract.
4.6. CONSENTS. Seller shall use its reasonable commercial
efforts to obtain all written consents which are required under the Assumed
Contracts; provided that Seller shall not be required to make any payments to
obtain such consents. Buyer and Buyer Parent shall cooperate with Seller to
the extent reasonably necessary to obtain any such written consent.
4.7. ACCESS TO INFORMATION. Seller shall furnish Buyer Parent
and its authorized representatives reasonable access to Seller's books,
records and other information, concerning the Assets and the CSC Operations,
including, without limitation, access to Seller's officers, auditors, counsel
and other representatives primarily involved in the CSC Operations; PROVIDED,
HOWEVER, that in each instance mutually satisfactory arrangements shall be
made in advance in order to avoid interruption and minimize interference with
the normal business and operations of Seller.
4.8. NOTICE OF EVENTS. The Parties shall promptly provide to
each other written notice of:
(a) the occurrence or non-occurrence of any event, the
occurrence or non-occurrence of which is likely to cause any breach of any
term or provision of this Agreement on the part of the notifying party;
(b) Any action, suit or proceeding challenging the
sale or assignment of the Assets or the transactions contemplated by this
Agreement;
(c) Any notice or other communication from any
Authority or other third party alleging that the consent of such Authority or
other third party is or may be required in connection with the transactions
contemplated by this Agreement; and
15
(d) Any other development which would prevent or raise
a material doubt about the possibility of the satisfaction of any condition
to Closing of such notifying party set forth in Section 5; PROVIDED HOWEVER,
that the delivery of any notice pursuant to this Section 4.8 shall not (1)
limit or otherwise affect any remedies available to the party receiving such
notice or (2) constitute an acknowledgement or admission of a breach of this
Agreement.
4.9. UPDATING OF DISCLOSURE SCHEDULE. The Seller may (but will
not be required to), from time to time prior to or on the Closing Date, by
notice in accordance with this Agreement, supplement or amend the Disclosure
Schedule, including without limitation one or more supplements or amendments
to correct any matter which would otherwise give rise to a breach of any
representation, warranty or covenant herein contained, solely to the extent
such matter arose after the execution of this Agreement. If a supplement or
amendment of the Disclosure Schedule is issued, which supplement or amendment
results in a material change to the representations and warranties of the
Seller contained in this Agreement, then the Buyer or Buyer Parent shall have
the right prior to Closing to terminate this Agreement, with such termination
being its sole remedy relating to matters set forth in amendments or
supplements to the Disclosure Schedule. Notwithstanding any other provision
hereof but subject to the immediately preceding sentence, each supplement or
amendment of the Disclosure Schedule (to that extent permitted by the second
sentence of this paragraph) will be effective to cure and correct for all
purposes any breach of any representation, warranty or covenant relating to
the Disclosure Schedule which shall thereafter be deemed to have read at all
times as so supplemented and amended.
4.10. ACCESS TO CSC OPERATION EMPLOYEES. Seller shall furnish
Buyer Parent reasonable access to those CSC Operation Employees listed in
PARAGRAPH 7.6(b) of the Disclosure Schedule for the purpose of discussing
matters relating to such person's potential employment with Buyer Parent;
PROVIDED, HOWEVER, that in each instance mutually satisfactory arrangements
shall be made in advance in order to avoid interruption and minimize
interference with the normal business and operations of Seller.
5. CLOSING CONDITIONS AND DELIVERIES
5.1. CONDITIONS TO BUYER'S OBLIGATIONS. The obligations of Buyer
and Buyer Parent under this Agreement are subject to the fulfillment on or
before the Closing of each of the following conditions, except such
conditions as may be waived by Buyer in writing:
(a) DELIVERY OF ANCILLARY DOCUMENTS. Seller shall have
delivered to Buyer the following ancillary documents, duly executed by Seller:
(i) the Xxxx of Sale (provided that Buyer may
direct that all or part of the Assets shall be conveyed to Buyer Parent
or to any wholly-owned subsidiary of Buyer Parent);
(ii) the Assumption Agreement;
(iii) the Escrow Agreement;
16
(iv) the Registration Rights Agreement between
Buyer Parent and Seller (the "REGISTRATION RIGHTS AGREEMENT") in
substantially the form of EXHIBIT F;
(v) a Transition Services Agreement (the
"TRANSITION SERVICES AGREEMENT") which shall be in form and substance
reasonably satisfactory to each of Seller and Buyer Parent;
(vi) an opinion of counsel in substantially the
form of EXHIBIT G;
(vii) the consents referred to in Schedule 2.3;
and
(viii) such other instruments of sale, transfer,
conveyance or assignment as Buyer and its counsel reasonably shall have
requested prior to the Closing Date for the sale, transfer, conveyance
and assignment of the Assets to Buyer as contemplated by this
Agreement.
(b) SECRETARY'S CERTIFICATE. Seller shall have
delivered to Buyer a certification of the secretary of Seller, dated the
Closing Date, (i) attaching resolutions of the board of directors of Seller
in connection with the authorization and approval of the execution, delivery
and performance by Seller of this Agreement and documents ancillary hereto to
which Seller is a party, certified as being in full force and effect as of
the Closing Date; and (ii) setting forth the incumbency of the officers of
Seller who have executed and delivered this Agreement and each of the
documents ancillary hereto to which Seller is a party, including therein a
signature specimen of each such officer.
(c) NO LITIGATION OR LEGAL PROHIBITION. There shall
not be any order of any Authority in effect or any material action, suit or
proceeding pending or overtly threatened which, if determined adversely,
would prohibit consummation of any of the transactions contemplated hereby or
which would make the consummation of such transactions unlawful.
(d) ACCURACY OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties by the Seller contained in this Agreement or
in any ancillary document delivered by Seller to Buyer or Buyer Parent
pursuant to this Agreement that are qualified as to materiality shall be true
and correct in all respects and those not so qualified shall be true and
correct in all material respects on and as of the Closing Date as though such
representations and warranties were made on and as of such date (except for
changes contemplated or expressly permitted by, or caused directly by the
performance by the Seller of its obligations under, this Agreement) and for
those representations and warranties which address matters as of a specified
date (which shall have been true and correct in all respects as of such
specified date if not qualified as to materiality and true and correct in all
material respects as of such specified date if not so qualified by
materiality).
(e) COMPLIANCE WITH AGREEMENT. All covenants,
agreements and conditions of this Agreement to be performed or complied with
by Seller on or prior to the Closing shall have been duly performed or
complied with in all material respects.
17
(f) OFFICER'S CERTIFICATE. Seller shall have delivered
to Buyer a certificate of an officer of Seller, dated the Closing Date,
certifying that the conditions specified in Sections 5.1(c), (d) and (e)
hereof have been fulfilled in all material respects.
(g) GOOD STANDING CERTIFICATES. Seller shall have
delivered to Buyer certificates, dated as of the Closing Date or within three
(3) Business Days prior to the Closing Date, executed by the proper official
in each jurisdiction, as to the good standing of Seller in the State of
Delaware and in The Commonwealth of Massachusetts.
5.2. CONDITIONS TO SELLER'S OBLIGATIONS. The obligations of
Seller under this Agreement are subject to the fulfillment on or before the
Closing of each of the following conditions, except such conditions as may be
waived by Seller in writing:
(a) DELIVERY OF SHARES. Buyer Parent shall have
delivered to Seller a certificate representing the portion of the Shares set
forth in Section 1.6(b)(i)(A), and shall have delivered to the Escrow Agent
the Escrowed Shares.
(b) DELIVERY OF THE NOTES. Buyer Parent shall have
delivered to Seller the Note contemplated in Section 1.6(b)(i)(B), and shall
have delivered to the Escrow Agent the Escrowed Note.
(c) DELIVERY OF CASH. Buyer Parent shall have
delivered to Seller the cash payment as contemplated in Section 1.6(b)(i)(C),
and shall have delivered to the Escrow Agent the Escrowed Cash.
(d) DELIVERY OF SEVERANCE COSTS PAYMENT. Buyer Parent
shall have delivered to Seller the Severance Costs Payment as contemplated in
Section 7.5(e).
(e) DELIVERY OF ANCILLARY DOCUMENTS. Buyer and Buyer
Parent shall have delivered to Seller the following ancillary documents, duly
executed by Buyer and Parent:
(i) the Assumption Agreement;
(ii) the Escrow Agreement;
(iii) the Registration Rights Agreement;
(iv) the Transition Services Agreement, which
shall be in form and substance reasonably satisfactory to each of
Seller and Buyer Parent;
(v) an opinion of counsel in substantially the
form of EXHIBIT H.
(f) SECRETARY'S CERTIFICATES. Each of Buyer and Buyer
Parent shall have delivered to Seller a certification of the secretary of
Buyer or Buyer Parent, as the case may be, dated the Closing Date, (i)
attaching resolutions of the board of directors of such party in connection
with the authorization and approval of the execution, delivery and
performance of this Agreement and of all documents ancillary hereto to which
such Buyer or Buyer Parent is a party, certified as being in full force and
effect as of the Closing Date; and (ii) setting forth the
18
incumbency of the respective officers who have executed and delivered this
Agreement and each of the documents ancillary hereto to which such Buyer or
Buyer Parent is a party, including therein a signature specimen of each such
officer.
(g) ACCURACY OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties by the Buyer or Buyer Parent contained in this
Agreement or in any ancillary document delivered by Buyer or Buyer Parent to
Seller pursuant to this Agreement that are qualified as to materiality shall
be true and correct in all respects and those not so qualified shall be true
and correct in all material respects on and as of the Closing Date as though
such representations and warranties were made on and as of such date (except
for changes contemplated or expressly permitted by, or caused directly by the
performance by the Buyer or Buyer Parent of its obligations, under this
Agreement and for those representations and warranties which address matters
as of a specified date (which shall have been true and correct in all
respects as of such specified date if not qualified as to materiality and
true and correct in all material respects as of such specified date if not so
qualified by materiality).
(h) COMPLIANCE WITH AGREEMENT. All covenants,
agreements and conditions of this Agreement to be performed or complied with
by Buyer or by Buyer Parent on or prior to the Closing shall have been duly
performed or complied with in all material respects.
(i) OFFICER'S CERTIFICATES. Each of Buyer and Buyer
Parent shall have delivered to Seller a certificate of an officer of Buyer or
Buyer Parent, as the case may be, dated the Closing Date, certifying that the
conditions specified in Sections 5.2(g), (h) and (j) hereof have been
fulfilled in all respects.
(j) NO LITIGATION OR LEGAL PROHIBITION. There shall
not be any order of any Authority in effect or any action, suit or proceeding
pending or threatened which, if determined adversely, would prohibit
consummation of any of the transactions contemplated hereby or which would
make the consummation of such transactions unlawful.
6. INDEMNIFICATION
6.1. INDEMNIFICATION BY SELLER. Seller shall indemnify and hold
harmless Buyer and Buyer Parent at all times after the Closing Date, against
and in respect of:
(a) LIABILITIES OF SELLER. Other than liabilities
expressly assumed by Buyer or Buyer Parent, as the case may be (for the
purposes of this Section 6, collectively, the "PURCHASER"), as provided in
Section 1.4 of this Agreement or in Section 7.6 hereof, all liabilities and
obligations of Seller of any kind or nature whatsoever relating to the
Assets, whether accrued, absolute, fixed, contingent or otherwise, known or
unknown;
(b) MISREPRESENTATIONS. Any damage, loss, cost,
expense or liability (including reasonable attorneys' fees) resulting to
Purchaser from any false or inaccurate representation, breach of warranty or
non-fulfillment of any agreement on the part of Seller under this Agreement
or from any misrepresentation in any closing certificate or other instrument
required to be furnished by Seller to Purchaser hereunder; and
19
(c) ACTIONS AND SUITS. All claims, actions, suits,
proceedings, demands, assessments, judgments, costs and expenses, including,
without limitation, legal fees and expenses, incident to any of the foregoing.
6.2. INDEMNIFICATION BY BUYER AND BUYER PARENT. The Buyer and
Buyer Parent shall joint and severally indemnify and hold harmless Seller, at
all times after the Closing Date, against and in respect of:
(a) ASSUMED LIABILITIES. Any loss arising from the
Assumed Liabilities;
(b) MISREPRESENTATIONS. Any damage, loss, cost,
expense or liability (including reasonable attorneys' fees) (collectively,
"LOSS") resulting to Seller from any false or inaccurate representation,
breach of warranty or non-fulfillment of any agreement on the part of Buyer
under this Agreement or from any misrepresentation in or any omission from
any certificate or other instrument required to be furnished by the Purchaser
to Seller hereunder;
(c) ACTION OR INACTION OF BUYER OR BUYER PARENT. Any
Loss arising from any action or inaction by Buyer or Buyer Parent after the
Closing Date and arising from or in connection with the operation of the CSC
Operations or the Assets after the Closing Date; and
(d) ACTIONS AND SUITS. All claims, actions, suits,
proceedings, demands, assessments, judgments, costs and expenses, including,
without limitation, legal fees and expenses, incident to any of the foregoing.
6.3. INDEMNIFICATION PROCEDURE.
(a) A party that may be entitled to indemnification
pursuant to Section 6.1 or Section 6.2 (the "INDEMNITEE") shall promptly give
written notice (a "NOTICE OF CLAIM") to the party liable for such
indemnification (the "INDEMNITOR"). A Notice of Claim shall set forth (a) a
description, in reasonable detail, of the facts and circumstances with
respect to the subject matter of such claim or potential claim for
indemnification, and (b) the anticipated total amount of the indemnification
claim (including any costs or expenses which have been or may be reasonably
incurred in connection therewith). Upon receipt of a Notice of Claim, the
Indemnitor may elect to cure the circumstances giving rise to the
indemnification claim (the "EVENT OF LOSS") within thirty (30) days after the
date of receipt of the Notice of Claim. If such cure cannot be effected
within such 30-day period, payment of the amount of actual damage, loss,
cost, expense or liability (including reasonable attorneys' fees)
(collectively, "DAMAGES") due to the Indemnitee as set forth in the Notice of
Claim shall be made by Indemnitor no later than the thirtieth (30th) day
after the date of the Notice of Claim (or such later date as the Indemnitor
receives written notice that the Indemnitee has suffered Damages). The
Indemnitee's failure to give prompt notice or to provide copies of documents
or to furnish relevant data shall not constitute a defense (in whole or in
part) to any claim by the Indemnitee against the Indemnitor for
indemnification, except and only to the extent that such failure shall have
caused or increased such liability or adversely affected the ability of the
Indemnitor to defend against or reduce its liability.
(b) If any Notice of Claim relates to any claim made
against an Indemnitee by a third person, the Notice of Claim shall state the
nature, basis and amount of such claim. The Indemnitor shall have the right,
at its election, by written notice to the Indemnitee, to assume the
20
defense of the claim as to which such notice has been given. Except as
provided in the next sentence, if the Indemnitor so elects to assume such
defense, it shall diligently and in good faith defend such claim and shall
keep the Indemnitee reasonably informed of the status of such defense, and
the Indemnitee shall cooperate fully with the Indemnitor in the defense of
such claim, PROVIDED that in the case of any settlement providing for
remedies other than monetary damages for which indemnification is provided,
the Indemnitee shall have the right to approve the settlement, which approval
shall not be unreasonably withheld or delayed. If the Indemnitor does not so
elect to defend any claim as aforesaid or shall fail to defend any claim
diligently and in good faith (after having so elected), the Indemnitee may
assume the defense of such claim by written notice to the Indemnitor and take
such other action as it may elect to defend or settle such claim as it may
determine in its reasonable discretion, PROVIDED that the Indemnitor shall
have the right to approve any settlement, which approval will not be
unreasonably withheld or delayed.
(c) None of the parties hereto shall have any
obligation to indemnify the other parties hereto or otherwise have liability
to the other parties hereto for consequential, collateral, special,
incidental, punitive or indirect damages, lost profits or similar items.
(d) Seller shall have no liability under this Section
6 to the extent arising from actions taken or not taken by Buyer or Buyer
Parent or their affiliates after the Closing Date.
6.4. LIMITATIONS ON INDEMNIFICATION.
(a) BASKET AMOUNT. The indemnification provided for in
Section 6.1 shall not apply to (i) Damages relating to an individual
indemnification claim if such amounts do not exceed $10,000 in the aggregate,
whereupon claim may be made for the entire amount of Damages, provided that
the limits of clause (ii) have been met, and (ii) until Purchasers'
collective claims for indemnification exceed $50,000 in the aggregate,
whereupon claim may be made for all amounts in excess of $50,000, subject to
the limits of clause (i) herein (it being understood that Damages relating to
claims below $10,000 may be included for purposes of determining whether the
limits of this clause (ii) has been satisfied).
(b) INSURANCE PROCEEDS AND OTHER SET-OFFS. The amount
of any Damages for which indemnification is provided under Section 6.1 or
Section 6.2 shall be net of any amounts recovered or recoverable by the
Indemnitee under insurance policies with respect to such Damages. Upon making
any payment to an Indemnitee for any indemnification claim, the Indemnitor
shall be subrogated, to the extent of such payment, to any rights which the
Indemnitee may have against the third party with respect to the subject
matter underlying such indemnification claim.
6.5. PAYMENT OF INDEMNIFICATION CLAIMS. In the event that Seller
is entitled to indemnification pursuant to Section 6.2, Buyer Parent shall
make payment of such indemnification claim in cash. In the event that
Purchaser is entitled to indemnification pursuant to Section 6.1, Seller
shall effect the payment of such indemnification to an Indemnitee by, and in
accordance with, the terms of the Escrow Agreement, (i) first, directing the
Escrow Agent to return to Buyer Parent the Escrowed Note, in which case Buyer
Parent shall tender to the Escrow Agent in substitution therefor a Note
reduced in principal amount by the amount of Seller's indemnification
obligation to the Indemnitee (which Note shall thereupon become the "ESCROWED
21
NOTE"), or (ii) second, if the Escrow Note is insufficient to satisfy the
Seller's indemnification obligation, by directing the Escrow Agent to return
to Buyer Parent an integral number of Escrowed Shares equal in value to
Seller's indemnification obligation to Buyer (in which case the value of each
such Escrowed Share shall be equal to the average of the closing sale prices
of the Common Stock on the Nasdaq National Market during the ten (10) trading
days immediately preceding the date on which the Escrow Agent returns such
Escrowed Shares to Buyer), and (iii) third, if the Escrowed Note and the
Escrowed Shares are insufficient to satisfy the Seller's indemnification
obligation, by directing the Escrow Agent to pay the Buyer Escrowed Cash in
amounts equal to Seller's indemnification obligation to Buyer under Section
6.1. Resort to the Escrowed Shares, the Escrowed Note and the Escrowed Cash
shall constitute the sole remedy of Buyer and Buyer Parent under this
Agreement, except with respect to fraud or willful misconduct perpetrated by
Seller.
6.6. EXCLUSIVE REMEDY. After the Closing Date, this Section 6
shall provide the sole and exclusive remedy for any and all Damages related
to this Agreement sustained or incurred by Buyer, Buyer Parent or Seller or
their respective successors and assigns and affiliates.
7. POST-CLOSING COVENANTS
7.1. FURTHER ASSURANCES; COOPERATION. The parties shall, at any
time, and from time to time, after the Closing Date, execute and deliver such
further instruments of conveyance and transfer and take such additional
action as may be reasonably necessary to effect, consummate, confirm or
evidence the transactions contemplated by this Agreement, including
reasonable cooperation with respect to the preparation of tax returns for
periods prior to the Closing Date.
7.2. DELIVERY OF ASSETS. Seller agrees that it will transfer or
make available to Buyer, promptly after the receipt thereof, any property
that Seller receives after the Closing Date in respect of the Assets
transferred or intended to be transferred to Buyer under this Agreement.
7.3. BOOKS AND RECORDS. Buyer shall preserve and retain the
corporate, accounting, tax, legal and other records of the CSC Operations
that shall come into Buyer's possession as a result of the transactions
contemplated hereby for a period of not less than five (5) years from the
Closing Date and give reasonable access to Seller, and Seller's officers,
auditors, counsel, and other representatives for the purpose of preparing or
defending tax returns or for other reasonable business purposes.
7.4. LITIGATION SUPPORT. In the event and for so long as any of
the Seller, the Buyer, the Buyer Parent or any of their affiliates actively
is contesting or defending against any third party action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection
with (i) any transaction contemplated under this Agreement or (ii) any fact,
situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or
prior to the Closing Date involving the Seller or any of the Assets, Seller
shall furnish Buyer Parent and its authorized representatives reasonable
access to Seller's books, records and other information, concerning the
Assets and the CSC Operations, including, without limitation, access to
Seller's officers, auditors, counsel and other representatives primarily
involved in the CSC Operations; PROVIDED, HOWEVER, that in each
22
instance mutually satisfactory arrangements shall be made in advance in order
to avoid interruption and minimize interference with the normal business and
operations of Seller.
7.5. DESTRUCTION OF COPIES OF CERTAIN ASSETS. After the Closing
Date, Seller shall, upon the written request of Buyer, immediately destroy or
erase all of Seller's copies of computer software and CSC Operations records
included in the Assets and, upon Buyer's request, promptly confirm
destruction of same by signing and returning to Buyer an "affidavit of
destruction" acceptable to Buyer; PROVIDED, HOWEVER, that Seller shall be
entitled to retain a copy of those specific records, and only those specific
records, that contain information that (i) is not related to the CSC
Operations, (ii) is neither confidential nor privileged or (iii) Seller has a
reasonable need to retain. Following the Closing Date, Buyer and Buyer Parent
shall grant to Seller and its representatives, at Seller's reasonable
request, reasonable access to and the right to make copies of those records
and documents covering any period prior to the Closing Date related to the
CSC Business or the Assets as may be reasonably necessary for litigation,
preparation of financial statements, tax returns and audits or other valid
business purposes. If Buyer or Buyer Parent elects to dispose of such
records, Buyer shall first give Seller sixty (60) days' written notice,
during which period Seller shall have the right to take such records without
further consideration.
7.6. EMPLOYEE MATTERS.
(a) Buyer and Buyer Parent do not and will not assume
the sponsorship of, the responsibility for contributions to, or any liability
under or in connection with, any Employee Benefit Plan. Without limiting the
foregoing, Seller shall be liable for continuation coverage (including any
penalties, excise taxes or interest resulting from the failure to provide
continuation coverage) required by Section 4980B of the Code with respect to
(i) qualifying events incurred by any CSC Operations Employee who does not
become an employee of Buyer on or immediately following the Closing (or
covered dependents or qualified beneficiaries of such employee), and (ii) any
qualifying events which occur on or before the Closing Date incurred by any
CSC Operations Employee who becomes an employee of Buyer on or following the
Closing Date (or covered dependents or qualified beneficiaries of such
employee). Buyer will in no event be deemed to be a successor employer
(within the meaning of Treasury Regulation Section 54.4980B-2) of Seller for
purposes of applying the provisions of Section 4980B of the Code following
the Closing with respect to any current or former employee of Seller.
(b) Buyer shall, as of the Closing Date, offer
employment to those CSC Operations Employees listed on the Offeree Schedule,
which offer shall indicate that Buyer shall provide to each such CSC
Operations Employee initial compensation at a rate equivalent to the rate of
compensation provided to such CSC Operations Employee by Seller at the time
of offer. Any such CSC Operations Employee who accepts Buyer's offer of
employment and who, within seven days of the Closing Date, commences
employment with Buyer by reporting for work and being actively employed by
Buyer for at least one day is hereinafter referred to as a "TRANSFERRED
EMPLOYEE." For a period of at least one year following the Closing Date,
Buyer shall provide or cause to be provided to Transferred Employees
compensation and benefits that are substantially comparable, in the
aggregate, to the compensation and benefits (exclusive of any such
compensation and benefits consisting of or based on any equity securities but
including all
23
severance policies of the Seller) provided to them by Seller under the
Employee Benefit Plans immediately prior to the Closing. Subject to the
satisfaction of applicable enrollment requirements, each Transferred Employee
(and its or her eligible spouse or dependents) who, as of the Closing Date,
participates in Employee Benefit Plans of Seller shall immediately following
such Transferred Employee's commencement of employment with Buyer, become
eligible to participate in employee benefit plans maintained by Buyer for its
employees.
(c) For purposes of determining eligibility to
participate or levels of benefits or entitlement to benefits under the
Buyer's benefit plans, programs and arrangements (including, for the
avoidance of doubt but without limitation, any vacation or vacation pay plan,
program or arrangement) each Transferred Employee shall be credited with his
or her years of service with the Seller or any affiliate. The Buyer shall
cause any preexisting condition, actively-at-work, or similar requirement
under any of their benefit plans, programs or arrangements to be waived in
the case of any Transferred Employee. For purposes of determining any
deductibles or other obligations (such as co-insurance payments) similarly
subject to a dollars or percentage cap under any benefit plan, program or
arrangement of the Buyer for the year in which the Closing occurs, each
Transferred Employee shall be credited with amounts paid or deducted under
the comparable employee program of Seller during the year in which the
Closing occurs.
(d) The Buyer shall use reasonable best efforts to
obtain necessary governmental approvals and authorizations, including the
obtaining of Visa and other work permits, so as to permit the continued
employment of foreign persons.
(e) Buyer Parent shall pay to Seller $136,725 in cash
(the "SEVERANCE COSTS PAYMENT") on the Closing Date for payment obligations
of Seller resulting from claims arising out of or in connection with
severance costs for CSC Operations Employees discharged by Seller on or prior
to the Closing Date whether or not such payment obligations are payable by
Seller on or prior to the Closing Date.
7.7. NON-COMPETITION.
(a) During and for a period of two years following the
Closing, Seller shall not (other than on behalf of Buyer or Buyer Parent),
without the prior written consent of Buyer or Buyer Parent, engage in a
Competitive Business Activity (as defined below) anywhere in the Restricted
Territory (as defined below). The term "COMPETITIVE BUSINESS ACTIVITY" shall
mean (i) the business of the CSC Operations as conducted by Seller as of the
date hereof or as of the Closing Date; (ii) acquiring or having an ownership
interest in any entity that derives a majority of its gross revenues from any
business that competes with the CSC Operations as conducted as of the date
hereof or as of the Closing Date (except for ownership of five percent (5%)
or less of any entity); or (iii) participating in the operation, management
or control of any firm, partnership, corporation, business or other entity
described in clause (ii) of this sentence. The parties acknowledge and agree
that the provisions of this Section 7.7 shall in no event preclude Polycom
(as successor to Seller) from engaging in any business activity conducted by
it as of the date hereof, including without limitation problem management,
selling and developing multipoint bridges, or scheduling, collaboration and
management software. The term "RESTRICTED TERRITORY" shall mean all foreign
countries where Seller conducted CSC Operations on or after
24
January 1, 2001, the United States of America and each and every state,
county, city, municipality or other political subdivision thereof.
(b) The covenants contained in Section 7.7(a) shall be
construed as a series of separate covenants, one for each country, state,
county, city, municipality or other political subdivision of the Restricted
Territory. Except for geographic coverage, each such separate covenant shall
be deemed identical in terms to the covenant contained in Section 7.7(a).
(c) Seller acknowledges that the covenants contained
in this Section 7.7 are reasonable and valid in geographical and temporal
scope and content and in all other respects, and are necessary for the
adequate protection of the legitimate business interests of Buyer and of
Buyer Parent, because, among other things, Buyer or Buyer Parent conducts
business throughout the world, the United States, Buyer or Buyer Parent is
engaged in a highly competitive industry, and Seller has had unique access to
confidential business information and trade secrets included in the Assets.
Seller also acknowledges that any breach of the covenants set forth in this
Section 7.7 will give rise to irreparable injury to Buyer or Buyer Parent,
that the remedy at law of Buyer or Buyer Parent for any such breach or
threatened breach will be inadequate and that, in addition to any other
remedy therefor that Buyer or Buyer Parent may have, it shall be entitled to
temporary injunctive relief before trial from any court of competent
jurisdiction as a matter of course and to permanent injunctive relief without
the necessity of proving actual damages and without the requirement of any
bond or other security.
(d) Seller agrees that the existence of any claim or
cause of action by Seller against Buyer or Buyer Parent shall not constitute
a defense to the enforcement by Buyer of the covenants set forth in this
Section 7.7, and that any such claim or cause of action against Buyer shall
be litigated separately.
(e) If, in any judicial proceeding, a court refuses to
enforce any of the separate covenants (or any part thereof) set forth in this
Section 7.7, then such unenforceable covenant (or such part) shall be
eliminated from this Agreement to the extent necessary to permit the
remaining separate covenants (or parts thereof) to be enforced, and such
remaining covenants shall be given full effect without regard to the invalid
covenant (or part thereof). In the event that any of the separate covenants
(or any part thereof) set forth in this Section 7.7 is deemed by a court to
exceed the geographical or temporal scope or content or other limitations
permitted by applicable laws, then such covenant (or part thereof) shall be
reformed to the geographical or temporal scope or content or other
limitations, as the case may be, permitted by applicable laws, and, in such
reduced form, shall be given full effect.
7.8. NON-SOLICITATION. For a period of one (1) year from the
Closing Date, Seller shall not, without the prior written consent of Buyer or
Buyer Parent (i) solicit the employment of any of the Transferred Employees
or (ii) hire any Transferred Employee whose employment Buyer Parent or any
subsidiary of Buyer Parent has terminated within 60 days of such solicitation
or hire; PROVIDED, HOWEVER, that this Section 7.7(e) shall not prevent
advertisements, solicitations, position listings or notices of employment
opportunities that are published or made available to the public or hiring of
personnel responding thereto.
25
7.9. CONSENTS. For a period of six (6) months following the
Closing, Seller shall use its reasonable commercial efforts to obtain all
written consents which are required under the Assumed Contracts; provided
that Seller shall not be required to make any payments to obtain such
consents. Buyer and Buyer Parent shall cooperate with Seller to the extent
reasonably necessary to obtain any such written consent.
7.10. LICENSING AGREEMENT WITH FVC. For a period of 45 days
following the Closing, Seller shall use its reasonable commercial efforts to
assist Buyer and Buyer Parent in the obtaining a software licensing agreement
from First Virtual Communications, Inc. ("FVC") providing Buyer or Buyer
Parent with a transferable 200-port license to the FVC Application Server
Product.
7.11. PURCHASE AND SALE OF SHARES. For a period of one year
following the Closing Date, Seller shall not, without the prior written
consent of Buyer Parent, (i) purchase any shares of capital stock of Buyer
Parent (other than capital stock of Buyer Parent acquired pursuant to this
Agreement), or (ii) sell in any three month period shares of capital stock of
Buyer Parent in excess of the maximum amount permitted under Rule 144(e)(1)
promulgated under the Securities Act.
8. MISCELLANEOUS
8.1. GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of Delaware, without giving effect to any
choice or conflict of law provision or rule (whether of the State of Delaware
or any other jurisdiction that would cause the application of the laws of any
jurisdiction other that the State of Delaware).
8.2. JURISDICTION. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall
be brought exclusively in Delaware or an United States Federal court sitting
in Delaware, and each of the parties hereby expressly submits to such
jurisdiction and venue of such court (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waives, to
the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding in any such court or that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
8.3. SURVIVAL; TERMINATION.
(a) SURVIVAL. Except as otherwise expressly provided
herein, the several representations, warranties, covenants, and agreements of
the parties contained in this Agreement shall be deemed to be material and to
have been relied upon by Buyer, Buyer Parent and Seller notwithstanding any
investigation made by Buyer, Buyer Parent or Seller, shall survive the
Closing Date and shall remain operative and in full force and effect for a
period of one (1) year following the Closing Date, except insofar as an
indemnification claim has been asserted by any party and has not been
resolved prior to the end of such one-year period; PROVIDED, HOWEVER, that
the representations and warranties of Seller set forth in Section 2.5 shall
survive for the period of the applicable statute of limitations (if such
statute of limitations is in excess of one (1) year),
26
and the respective representations, warranties, covenants and agreements of
Buyer, Buyer Parent and Seller contained in Sections 1.4, 1.7, 1.8, 2.18, 3.4
and 3.6 and in Sections 6, 7 and 8 shall continue without any time limitation.
(b) TERMINATION. This Agreement shall terminate and be
of no further force and effect upon the earlier to occur of (i) at the
election of Buyer or Seller, at any time on or after November 4 , 2001, if
the Closing shall not have occurred by such date (so long as the failure of
the Closing to occur shall not result primarily from the electing party's
failure to comply with this Agreement or a breach of its representations and
warranties hereunder) or (ii) the mutual written consent of Buyer and Seller.
Upon termination, all rights and obligations of the parties hereunder shall
terminate without any liability of any Party, provided that Section 8 shall
survive.
8.4. NOTICES. Any notices authorized to be given hereunder shall
be in writing and deemed given, if delivered personally or by overnight
courier, on the date of delivery, if a Business Day, or if not a Business
Day, on the first Business Day following delivery, or if mailed, three days
after mailing by registered or certified mail, return receipt requested, and
in each case, addressed, as follows:
If to Buyer or Buyer Parent:
ACT Teleconferencing, Inc.
0000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
and a copy to:
Faegre & Xxxxxx LLP
0000 Xxxxxxxx Xxxxx
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
If to Seller:
PictureTel Corporation
000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
and a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
00
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
or if delivered by facsimile, on a Business Day before 4:00 p.m. local time
of addressee, on transmission confirmed electronically, or if at any other
time or day on the first Business Day succeeding transmission confirmed
electronically, to the facsimile numbers provided above, or to such other
address or facsimile number as any party shall specify to the other, pursuant
to the foregoing notice provisions. When used in this Agreement, the term
"BUSINESS DAY" shall mean a day other than a Saturday, Sunday or a day on
which commercial banks in New York, New York are generally closed for
business.
8.5. ENTIRE AGREEMENT; AMENDMENTS. Except for the
Confidentiality Agreement between Buyer, Buyer Parent and Seller dated June
6, 2001 (which shall remain in full force and effect and govern all
confidential information provided by the Seller to Buyer pursuant to this
Agreement), this Agreement (i) sets forth the entire agreement of the parties
respecting the subject matter hereof, (ii) supersedes any prior and
contemporaneous understandings, agreements, or representations by or among
the parties, written or oral, to the extent they related in any way to such
subject matter, and (iii) may not be amended orally, and no right or
obligation of any party may be altered, except as expressly set forth in a
writing signed by each party hereto.
8.6. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall for all purposes be deemed an original,
and all such counterparts shall together constitute but one document.
8.7. HEADINGS. The section and subsection headings do not
constitute any part of this Agreement and are inserted herein for convenience
of reference only.
8.8. PUBLIC ANNOUNCEMENTS. None of Buyer, Buyer Parent or Seller
shall make any press release or other public disclosure concerning the
matters covered by this Agreement without the approval of the other parties
hereto, except as required by law, any listing or trading agreement
respecting its publicly traded securities or applicable regulation of the
exchange on which its securities are traded, based on the advice of counsel
for the party making the release or statement and shall, in any event, to the
extent practicable, permit the other parties an opportunity to review any
such release or statement prior to dissemination.
8.9. WAIVER. No waiver of a breach of, or default under, any
provision of this Agreement shall be deemed a waiver of such provision or of
any subsequent breach or default of the same or similar nature or of any
other provision or condition of this Agreement.
8.10. BINDING EFFECT AND ASSIGNMENT. This Agreement shall be
binding upon and shall inure to the benefit of the parties and their
successors and assigns. None of Seller, Buyer or Buyer Parent may assign any
right or obligation under this Agreement except with the prior written
consent of the other party hereto.
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8.11. CONFIDENTIALITY. The Seller will (i) treat and hold as
confidential any and all information concerning the businesses and affairs of
the CSC Operations other than that information which is already generally or
readily obtainable by the public or is publicly known or becomes publicly
known through no fault of such Seller (the "CONFIDENTIAL INFORMATION"), (ii)
refrain from using any of the Confidential Information except in connection
with this Agreement, and (iii) deliver promptly to the Buyer or destroy, at
the request and option of the Buyer, all tangible embodiments (and all
copies) of the Confidential Information which are in Seller's possession. In
the event that the Seller is requested or required (by oral question or
request for information or documents in any legal proceeding, interrogatory,
subpoena, civil investigative demand, or similar process) to disclose any
Confidential Information, the Seller will notify the Buyer promptly of the
request or requirement so that the Buyer or the Buyer's Parent may seek an
appropriate protective order or waive compliance with the provisions of this
Section 8.11. If, in the absence of a protective order or the receipt of a
waiver hereunder, the Seller is compelled to disclose any Confidential
Information to any tribunal or else stand liable for contempt, the Seller may
disclose the Confidential Information to the tribunal; PROVIDED, HOWEVER,
that the Seller shall use its reasonable best efforts to obtain, at the
request of the Buyer or the Buyer's Parent, an order or other assurance that
confidential treatment will be accorded to such portion of the Confidential
Information required to be disclosed, as the Buyer or the Buyer's Parent
shall designate.
8.12. BUYER PARENT GUARANTEE. Buyer Parent hereby unconditionally
and irrevocably guarantees to Seller the due and punctual payment and
performance of all obligations of Buyer under this Agreement (as such
Agreement may be modified or amended from time to time).
8.13. EXPENSES. Each party shall bear its own expenses incurred
with respect to the preparation of this Agreement and the consummation of the
transactions contemplated hereby.
8.14. NO THIRD PARTY BENEFICIARIES. This Agreement shall not
confer any rights or remedies upon any person other than the parties hereto
and their respective successors and assigns.
8.15. BULK SALES LAWS. The Buyer and the Buyer Parent acknowledge
that the Seller will not comply with the provisions of any bulk transfer laws
of any jurisdiction in connection with the transactions contemplated by this
Agreement and waive such compliance.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
29
IN WITNESS WHEREOF, the undersigned have executed this Asset
Purchase Agreement as of the date first written above.
BUYER:
ACT VIDEOCONFERENCING, INC.
By:
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Name:
Title:
BUYER PARENT:
ACT TELECONFERENCING, INC.
By:
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Name:
Title:
SELLER:
PICTURETEL CORPORATION
By:
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Name:
Title:
