Exhibit 10.52
EXECUTION COPY
ASSET PURCHASE AGREEMENT
BETWEEN
REAL COMMUNICATIONS, INC.
AND
INTEGRATED TELECOM EXPRESS, INC.
June 13, 2002
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS........................................................................................... 1
ARTICLE II PURCHASE AND SALE TRANSACTION........................................................................ 2
2.1 Purchase and Sale of Assets................................................................... 2
2.2 Assumption of Liabilities..................................................................... 3
2.3 Technical Support............................................................................. 3
2.4 Purchase Price................................................................................ 3
2.5 Allocation of Purchase Price.................................................................. 3
2.6 Closing....................................................................................... 3
2.7 Requirements of Seller on Closing............................................................. 3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER............................................................ 4
3.1 Organization.................................................................................. 4
3.2 Authority..................................................................................... 4
3.3 Title to and Condition of Acquired Assets..................................................... 4
3.4 Intellectual Property Rights and Product Registrations........................................ 5
3.5 Absence of Changes............................................................................ 5
3.6 Use of the Seller Trade Marks and Name........................................................ 5
3.7 Taxes......................................................................................... 5
3.8 Lists......................................................................................... 6
3.9 Agreements.................................................................................... 6
3.10 Litigation.................................................................................... 6
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER.............................................................. 6
4.1 Organization.................................................................................. 6
4.2 Authority..................................................................................... 6
4.3 Financing..................................................................................... 7
4.4 Ownership of Buyer............................................................................ 7
ARTICLE V OBLIGATIONS OF PARTIES PRIOR TO CLOSING............................................................... 7
5.1 Conduct of Business Pending Closing........................................................... 7
5.2 Convocation of Directors and Stockholders' Meetings........................................... 8
5.3 Access........................................................................................ 8
ARTICLE VI ADDITIONAL UNDERTAKINGS.............................................................................. 8
6.1 Changes to Schedules and Breach of Representations and Warranties............................. 8
ARTICLE VII INDEMNIFICATION..................................................................................... 9
7.1 Survival of Warranties and Representations.................................................... 9
TABLE OF CONTENTS
(Continued)
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7.2 Indemnification of Buyer...................................................................... 9
7.3 Indemnification of Seller..................................................................... 9
7.4 Notice and Defense of Claims.................................................................. 9
7.5 Assumed Liabilities........................................................................... 10
ARTICLE VIII CONDITIONS OF CLOSING.............................................................................. 10
8.1 Conditions of Buyer's Obligations............................................................. 10
8.2 Conditions of Seller's Obligations............................................................ 11
ARTICLE IX ADDITIONAL AGREEMENTS................................................................................ 11
9.1 Right to Contact Third Parties................................................................ 11
9.2 Right to Contact Seller Employees............................................................. 12
9.3 Public Disclosure............................................................................. 12
9.4 Consents...................................................................................... 12
9.5 Reasonable Efforts; Further Assurances........................................................ 12
9.6 Notification of Certain Matters............................................................... 12
9.7 Confidentiality............................................................................... 13
9.8 Bulk Transfer Laws............................................................................ 13
ARTICLE X NO WARRANTIES......................................................................................... 13
ARTICLE XI TERMINATION.......................................................................................... 14
11.1 Termination of Agreement...................................................................... 14
11.2 Effect of Termination......................................................................... 14
ARTICLE XII MISCELLANEOUS....................................................................................... 14
12.1 No Third-Party Beneficiaries.................................................................. 14
12.2 Taxes......................................................................................... 14
12.3 Entire Agreement.............................................................................. 14
12.4 Succession and Assignment..................................................................... 15
12.5 Counterparts.................................................................................. 15
12.6 Headings...................................................................................... 15
12.7 Notices....................................................................................... 15
12.8 Governing Law................................................................................. 16
12.9 Amendments and Waivers........................................................................ 16
12.10 Severability.................................................................................. 16
12.11 Expenses...................................................................................... 16
12.12 Construction.................................................................................. 17
12.13 Incorporation of Exhibits and Schedules....................................................... 17
12.14 Other Remedies................................................................................ 17
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TABLE OF CONTENTS
(Continued)
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12.15 Submission to Jurisdiction.................................................................... 17
EXHIBITS
Exhibit A - Forms of Assignment
Schedule A - Acquired Assets
Schedule B - Excluded Assets
Schedule C - Assumed Liabilities
Schedule D - Consents, Waivers and Approvals
Schedule E - Financing Agreements, Contact Information, Insurance Policies and Litigation
Schedule F - Allocation of Purchase Price among Acquired Assets
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is entered into as of June
13, 2002 ("Effective Date"), by and between, Real Communications, Inc., a
corporation organized under the laws of the State of California ("Buyer"), and
Integrated Telecom Express, Inc., a Delaware corporation ("Seller"). Buyer and
Seller are referred to herein as each a "Party" or together the "Parties."
RECITALS
A. The Boards of Directors of Seller and Buyer believe it is in the best
interests of Seller and Buyer that Buyer acquire certain assets of Seller and
assume certain liabilities of Seller (the "Acquisition") and, in furtherance
thereof, have approved the Acquisition subject to the terms and conditions of
this Agreement.
B. Seller and Buyer desire to make certain representations, warranties,
covenants and other agreements in connection with the Acquisition.
C. Seller is engaged in the businesses of providing integrated circuit and
software products to the broadband access communications equipment industry.
D. Buyer intends to assign its rights and interests hereunder, pursuant to
Section 12.4 of this Agreement, to its new company to be formed in the Republic
of China (R.O.C.) prior to the Closing.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the Parties agree as follows:
ARTICLE I
DEFINITIONS
"Acquired Assets" means all of Seller's right, title, and interest in and
to all of the assets listed on Schedule A attached hereto. Notwithstanding the
foregoing, Buyer acknowledges that Acquired Assets does not include any assets
listed on Schedule B attached hereto ("Excluded Assets").
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Exchange Act.
"Apollo Products" means Seller's Apollo line of integrated circuit products
including related software.
"Assumed Liabilities" has the meaning set forth in Section 2.2 below.
"Closing Date" has the meaning set forth in Section 2.5 below.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Intellectual Property" means all rights of an individual or entity in, to,
or arising out of: (i) any U.S., international or foreign patent or any
application therefor and any and all reissues, divisions, continuations,
renewals, extensions and continuations-in-part thereof; (ii) inventions (whether
patentable or not in any country), invention disclosures, improvements, trade
secrets, proprietary information, know-how, technology and technical data; (iii)
copyrights, copyright registrations, mask works, mask work registrations, and
applications therefor in the U.S. or any foreign country, and all other rights
corresponding thereto throughout the world; (iv) moral rights; (v) domain names
and domain name registrations; (vi) trademarks and trademark registrations; and
(vii) any other proprietary rights anywhere in the world similar to those
described in this definition.
"Liability" means any warranty and technical support obligation.
"Permitted Liens" means any lien, encumbrance or other liability or charge
(i) arising in connection with any taxes, assessments or governmental charges
not yet due and payable or being contested in good faith by appropriate
proceedings, (ii) with respect to the Acquired Assets, such imperfections of
title, charges and encumbrances, if any, as do not in the aggregate materially
detract from the value of or materially interfere with the present use of such
Acquired Assets, and (iii) statutory liens of landlords, carriers, warehousemen,
mechanics, materialmen and other liens imposed by law incurred in the ordinary
course of business for sums not in arrears or otherwise due. "Person" means an
individual, a partnership, a corporation, an association, a joint stock Seller,
a trust, a joint venture, an unincorporated organization, or a governmental
entity (or any department, agency or political Subdivision thereof).
"Purchase Price" has the meaning set forth in Section 2.4 below.
"XXX Products" means Seller's XXX line of integrated circuit products
including related software.
ARTICLE II
PURCHASE AND SALE TRANSACTION
2.1 Purchase and Sale of Assets. On and subject to the terms and conditions
of this Agreement, as of the Closing Date, Buyer, in reliance on the
representations, warranties and agreements of Seller as hereinafter set forth,
agrees to purchase from Seller, and Seller, in reliance on the representations,
warranties and agreements of Buyer hereinafter set forth, agrees to sell,
transfer, convey, and deliver to Buyer all of Seller's right, title and interest
in and to the Acquired Assets for the consideration specified below in this
Article 2.
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2.2 Assumption of Liabilities. On and subject to the terms and conditions
of this Agreement, Buyer agrees to assume and become responsible for, as of the
Closing Date, the Liabilities of Seller set forth on Schedule C attached hereto
(the "Assumed Liabilities").
2.3 Technical Support. On and subject to the terms and conditions of this
Agreement, Buyer agrees to assume and become responsible for, as of the Closing
Date, all technical support obligations of Seller to customers of the Apollo
Products and XXX Products under purchase orders between those customers and
Seller, which customers and purchase orders are listed on Schedule C attached
hereto.
2.4 Purchase Price. Buyer agrees to pay to Seller $1,500,000 (the "Purchase
Price") by delivery of cash payable by wire transfer of immediately available
funds to the following account: Silicon Valley Bank, 0000 Xxxxxx Xxxxx, Xxxxx
Xxxxx, Xxxxxxxxxx 00000, ABA Routing No. 000000000, Account No. 3300260119. 2.5
Allocation of Purchase Price. The Purchase Price shall be allocated among the
Acquired Assets in accordance with their respective fair market values (the
"Allocation"). At the Closing, the Buyer and Seller shall mutually agree on the
Allocation of the Purchase Price among the Acquired Assets, and such Allocation
shall be attached hereto as Schedule F.
2.6 Closing. Subject to the conditions set forth in Article 8 below, the
closing of the transactions provided for in this Agreement will take place at
the offices of Seller as promptly as practicable but not later than five (5)
business days after all conditions set forth in Article 8 have been satisfied or
waived, or on such other date as may be agreed by Seller and Buyer (the "Closing
Date").
2.7 Requirements of Seller on Closing.
(a) Transfer of Assets. Seller shall deliver to Buyer at Closing all
instruments, deeds of title, bills of sale, satisfaction of mortgages and liens
assignments or other such documents of records requested by Buyer which may be
necessary or appropriate to convey to Buyer good and marketable legal title to
all the Acquired Assets purchased by Buyer hereunder and to record such change
of ownership. All tangible assets set forth on Schedule A to be purchased by
Buyer hereunder shall be checked and counted and transferred by authorized
representatives from Seller to Buyer.
(b) Product-Related Information and Documents. Seller shall transfer
and place at the disposal of Buyer on the Closing Date all formula,
manufacturing technology, methods, processes, know-how, research, sales records,
customer lists, sources of materials and all other documents and information
which are identified and described in Schedule A attached hereto, relating to
the Acquired Assets.
(c) Exclusion of Liabilities. Except for the Assumed Liabilities
described in Schedule C attached hereto, which are expressly assumed by Buyer
hereunder, Buyer shall not
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assume, agree or be obligated to pay, perform or discharge any debts,
liabilities, mortgages, liens, claims or other obligations of Seller, whether
now existing or hereafter arising, for whatever reason, and whether known or
unknown to Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer that the statements
contained in this Article 3 are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date (as though
made then, and as though the Closing Date were substituted for the date of this
Agreement throughout this Article 3).
3.1 Organization. As of the date of this Agreement, Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Seller intends to file a Certificate of Dissolution with the
Secretary of State of the State of Delaware promptly after Seller obtains
stockholder approval of its Plan of Complete Liquidation and Dissolution (the
"Plan").
3.2 Authority. Seller has all requisite corporate power and authority to
enter into this Agreement, and, subject to obtaining the Stockholder Approval
(as defined in Section 8.2(d)), to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement, and the consummation of
the transactions contemplated hereby, have been duly authorized by all necessary
corporate action on the part of Seller, and no further action is required on the
part of Seller to authorize this Agreement and the transactions contemplated
hereby, subject only to obtaining the Stockholder Approval (as defined in
Section 8.2(d)). This Agreement has been duly executed and delivered by Seller
and, assuming the due authorization, execution and delivery by the other parties
hereto, constitutes the valid and binding obligation of Seller, enforceable in
accordance with its terms, subject to the laws of general application relating
to bankruptcy, insolvency and the relief of debtors and to rules of law
governing specific performance, injunctive relief or other equitable remedies.
3.3 Title to and Condition of Acquired Assets.
(a) Title to Acquired Assets. To Seller's knowledge, Seller has good
and marketable legal title to all the Acquired Assets purchased by Buyer herein,
which shall to Seller's knowledge at Closing be free and clear of all liens,
encumbrances and other liabilities or charges except for Permitted Liens unless
otherwise agreed to in writing by the Parties. The execution and delivery of
this Agreement, and the consummation of the transactions contemplated hereby,
will not result in a breach of any material term of material agreement or other
material instrument to which Seller is party or by which it is bound and to
Seller's knowledge will not result in the creation of a lien, charge or
encumbrance on, or give to others any interests or right in, any of the Acquired
Assets.
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(b) Condition of Assets. All tangible Acquired Assets purchased by
Buyer hereunder are in use and in good condition and have been constantly
maintained in good repair; and all said assets are in compliance with all
applicable laws and regulations.
3.4 Intellectual Property Rights and Product Registrations.
(a) To the knowledge of Seller, Seller is the sole and exclusive
owner of, and has good, clear and marketable title to, said Trademarks, Patents
or other Intellectual Property Rights listed in Schedule A as being owned by it,
and to Seller's knowledge, there are no claims, liens, restrictions or other
encumbrances on any of the Trademarks, Patents or other Intellectual Property
Rights which Seller owns or uses. Other than as disclosed on Schedule 3.4(a), to
Seller's knowledge, Seller is not in infringement of, nor has infringed, any
right whatsoever of any third party with respect to any Trademark, Patent or
other Intellectual Property Right in a manner which would have a material effect
on the value of the Acquired Assets as a whole.
(b) To Seller's knowledge, Schedule A appended hereto accurately
sets forth and describes all the material governmental registrations, licenses
or permits obtained with respect to the Acquired Assets, including all
applications or registrations therefore. To whatever extent said registrations,
licenses or permits are assignable under law, Seller shall use its commercially
reasonable efforts, upon request from Buyer, to arrange for their transfer and
assignment to Buyer as soon as possible after Closing.
3.5 Absence of Changes. Since May 31, 2002, there has not been any material
damage or destruction in the nature of a casualty or loss of any nature
whatsoever, whether covered by insurance or not, adversely affecting any
Acquired Assets purchased by Buyer hereunder.
3.6 Use of the Seller Trade Marks and Name. At Closing Seller shall
transfer and convey to Buyer Seller's rights and registrations of all
trademarks, logos, service marks, copyrights, trade dress/packing designs (past,
present and those being conceived), and trade names listed on Schedule A in all
jurisdictions. To Seller's knowledge, there are no claims, liens, encumbrances
or other obligations or liabilities on such marks and names or the right to use
same, and the use of said Seller names does not and will not violate any right
or interest of any third party. Seller hereby renounces, surrenders and waives
all rights, title or interest to and in the use of said Seller names and/or any
names similar to the Seller names after Closing in U.S.A., R.O.C. and/or other
countries, forever and absolutely; provided however that nothing herein shall
require that Seller change its corporate name following the Closing and Seller
shall be entitled to continue to be known by, and use to the extent reasonably
necessary, its existing corporate name.
3.7 Taxes. All national and local taxes including property and other taxes
affecting the Acquired Assets relevant thereto which are due and payable by
Seller through the Closing Date have been paid, or will at the Closing Date have
been paid in full by Seller, or if mutually agreed to in writing by Buyer and
Seller, may be paid directly by Buyer, with appropriate reductions from the
Purchase Price.
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3.8 Lists. Annexed hereto as Schedule E is a complete and correct list, as
of the date hereof, identifying:
(a) All loan, credit or other financing agreements related to the
Acquired Assets, including any such agreements as to which any security or
collateral interest may be imposed on the Acquired Assets, identifying the
parties, amounts and material terms. Copies of such loan agreements shall be
furnished to Buyer within five (5) days after the effective date of this
Agreement;
(b) The names, addresses, telephone numbers and contact persons of
each distributor, agent, trade customer or supplier of Seller as of May 31,
2002, including the amount of sales to or purchases by each during the period
from January 1, 2002 to May 31, 2002;
(c) All insurance policies in force with respect to Seller and its
properties and assets relating to the Acquired Assets including a brief
description of the risks insured, deductibles, amounts of coverages, premiums
and expiration dates;
(d) All judgments, awards or pending lawsuits, actions, proceedings
or litigation affecting the Acquired Assets with brief description of their
nature or amounts.
3.9 Agreements. Seller shall furnish Buyer with copies of all agreements
relating to the Acquired Assets listed in Schedule A.
3.10 Litigation. Except as disclosed in the list of litigations provided
under Article 3.9 above, there are no litigations, actions, lawsuits or other
filed proceedings, of any nature whatsoever against Seller related to the
Acquired Assets. Seller is not party to or subject to any judgment, order,
decree or other procedure of any court, tribunal or government authority
whatsoever relating to the Acquired Assets.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller that the statements contained in
this Article 4 are correct and complete as of the date of this Agreement and
will be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this Article IV).
4.1 Organization. Buyer is a corporation duly organized, validly existing
and in good standing under the laws of the State of California.
4.2 Authority. Buyer has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly
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authorized by all necessary corporate action on the part of Buyer, and no
further action is required on the part of Buyer to authorize this Agreement and
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by Buyer and, assuming the due authorization, execution and delivery
by the other parties hereto and thereto, constitutes the valid and binding
obligations of Buyer, enforceable in accordance with its terms, subject to the
laws of general application relating to bankruptcy, insolvency and the relief of
debtors and to rules of law governing specific performance, injunctive relief or
other equitable remedies.
4.3 Financing. Buyer has or will have sufficient cash and/or available
borrowing capacity to pay the Purchase Price.
4.4 Ownership of Buyer. All or some of Xxxxxx Xxxx, Xxx Xxxx and Xxxxxx Xxx
are shareholders of the outstanding share capital of Buyer as of the effective
date of this Agreement. As of the effective date of this Agreement, the
remaining outstanding share capital of Buyer is owned by Realtek Semiconductor
Corporation.
ARTICLE V
OBLIGATIONS OF PARTIES PRIOR TO CLOSING
5.1 Conduct of Business Pending Closing. Subject to the provisions of
Article 8 below, between the date of this Agreement and the earlier of the
Closing Date or the termination of this Agreement pursuant to Article XI hereof,
Seller shall:
(a) Use its commercially reasonable efforts to ensure that all
Acquired Assets and properties pertaining thereto will remain in good order and
condition;
(b) Ensure that all existing insurance coverage of said Acquired
Assets and properties shall remain in full force and effect for a period of at
least thirty (30) days following the Closing Date with Buyer endorsed therein as
named beneficiary effective as of the Closing Date; provided that the cost of
such insurance coverage following the Closing Date shall be borne by Buyer.
Until Closing all risks of loss, damage or destruction to said Acquired Assets
or properties of Seller shall be borne by Seller;
(c) Not pledge, sell, transfer or otherwise dispose of any Acquired
Assets, whether tangible or intangible;
(d) Not waive or release any of its rights or claims regarding the
Acquired Assets;
(e) Not reveal, or permit its directors, officers, managers,
employees or agents to reveal, to third parties any trade secret, customer list
or other confidential or proprietary information relating to the Acquired
Assets, except pursuant to a non-disclosure agreement with the consent of Buyer;
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(f) Not enter into any Agreement, lease or commitment related to the
Acquired Assets that would have a material adverse effect on the Acquired Assets
related thereto; and not agree to suffer any change in the terms or conditions
of any existing Agreement or leases that are related to the Acquired Assets and
that Buyer has agreed to assume under this Agreement;
(g) Comply in all material respects with all applicable statutes,
laws and regulations.
5.2 Convocation of Directors and Stockholders' Meetings. Unless this
Agreement is terminated pursuant to Article XI hereof, Seller shall take all
necessary action and hold all directors and stockholders' meetings necessary
prior to Closing Date in order to provide all necessary approvals for the sale
and transfer of Acquired Assets to Buyer. Copies of minutes of such meetings
shall be furnished to Buyer as soon as possible.
5.3 Access. Seller agrees that, up to and including the earlier of the
Closing Date or such time as this Agreement is terminated pursuant to Article XI
hereof, it will cause Seller to provide to Buyer and its representatives full
access to its properties, inventories, books and records of Seller related to
the Acquired Assets and will furnish to them copies of such documents and
financial and other information with respect to such Acquired Assets to whatever
extent Buyer reasonably considers it necessary in order to conduct the audits.
ARTICLE VI
ADDITIONAL UNDERTAKINGS
6.1 Changes to Schedules and Breach of Representations and Warranties.
(a) From time to time from the date of this Agreement through the
earlier of the Closing Date or the termination of this Agreement pursuant to
Article XI hereof, Seller shall promptly supplement or amend the Schedules
hereto with respect to any matters arising hereafter which if existing or
occurring on the effective date of this Agreement would have been required to be
set forth or described in the Schedules.
(b) From the date of this Agreement through the earlier of the
Closing Date or the termination of this Agreement pursuant to Article XI hereof,
upon the occurrence of or upon Seller becoming aware of any material direct
physical damage to any tangible Acquired Assets or any third-party claims
against the Acquired Assets which would have a material adverse effect on the
Acquired Assets or would cause a material breach of any of the representations
and warranties of Seller contained in this Agreement or in any Schedule hereto,
Seller shall give prompt written notice thereof to Buyer and shall use its
commercially reasonable efforts to prevent or promptly remedy the same.
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ARTICLE VII
INDEMNIFICATION
7.1 Survival of Warranties and Representations. All warranties and
representations set forth in this Agreement shall be deemed to be made again (to
the extent they may be applicable) as of Closing Date, and shall be true and
accurate in all material respects as of Closing Date (unless Seller shall have
otherwise notified Buyer and Buyer shall have accepted such notification in
writing); and in addition all warranties and representations set forth in this
Agreement shall survive the Closing and delivery of Acquired Assets to Buyer and
shall remain in full force and effect until 5:00 p.m., Pacific Time, on December
31, 2002.
7.2 Indemnification of Buyer. Subject to the provisions and limitations
herein contained, from the Closing Date through 5:00 p.m., Pacific Time, on
December 31, 2002, Seller shall indemnify and hold Buyer free and harmless
against all losses, damages and liabilities that are sustained or suffered by
Buyer that are caused by or arise out of: (i) any breach by Seller of any
obligation, term or condition of this Agreement; or (ii) any breach or
misrepresentation of any warranty or representation of Seller made herein
pursuant to Articles 3.1 to 3.10 inclusive of this Agreement. In no event shall
Seller's liability under this Section 7.2 exceed the Purchase Price. THIS
SECTION 7.2 SETS FORTH BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S SOLE AND
EXCLUSIVE LIABILITY FOR ANY ACTION OR INACTION THAT WOULD TRIGGER THE INDEMNITY
IN THIS SECTION 7.2.
7.3 Indemnification of Seller. Subject to the provisions and limitations
herein contained, from the Closing Date through 5:00 p.m., Pacific Time, on
December 31, 2002, Buyer shall indemnify and hold Seller free and harmless
against all losses, damages and liabilities that are sustained or suffered by
Seller that are caused by or arise out of: (i) any breach by Buyer of any
obligation, term or condition of this Agreement; or (ii) any breach or
misrepresentation of any warranty or representation of Seller made herein
pursuant to Articles 4.1 to 4.4 inclusive of this Agreement. In no event shall
Seller's liability under this Section 7.3 exceed the Purchase Price. THIS
SECTION 7.3 SETS FORTH SELLER'S SOLE AND EXCLUSIVE REMEDY AND BUYER'S SOLE AND
EXCLUSIVE LIABILITY FOR ANY ACTION OR INACTION THAT WOULD TRIGGER THE INDEMNITY
IN THIS SECTION 7.3.
7.4 Notice and Defense of Claims. The indemnified party shall promptly
notify the indemnifying party in writing of all third party claims for damages
or losses suffered under Article 7.2 or Article 7.3, as applicable, above. Such
notice shall include a brief description of the claim the party by whom asserted
and an estimate of losses. The indemnifying party shall have access to the
indemnified party's books and records relevant to such claims upon reasonable
prior notice at reasonable times and places. The indemnifying party may
participate at its own expense in the defense or settlement of any such matter,
provided however, that if the indemnifying party should fail to respond,
participate in or defend such claim within twenty-one (21) days after receiving
the indemnified party's notice thereof, then the indemnified party shall have
the right in its best judgment to direct the defense to such claim and to
settle, litigate, negotiate or otherwise resolve
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such matter. The indemnified party's failure to give notice of a matter which
may give rise to a claim shall not affect the indemnified party's rights to
claim and recover any loss it may suffer from the indemnifying party, provided
that the failure of the indemnified party to give such notice does not adversely
affect the indemnifying party's capacity effectively to defend such claim.
7.5 Assumed Liabilities. In addition to the indemnity set forth in Section
7.3, Buyer agrees and acknowledges that, from and after the Closing, Buyer shall
be solely responsible for the Assumed Liabilities listed on Schedule C attached
hereto and for the operation of Buyer's business.
ARTICLE VIII
CONDITIONS OF CLOSING
8.1 Conditions of Buyer's Obligations. The obligation of Buyer to
consummate the transactions contemplated herein is subject to the satisfaction
(or waiver by Buyer) of the conditions set forth below:
(a) Representations and Warranties of Seller. The representations
and warranties of Seller made in this Agreement shall be true and correct in all
material respects as of the Effective Date and as of the Closing Date. Seller
shall have performed in all material respects its respective covenants and
agreements contained in this Agreement. Seller shall have furnished to Buyer at
Closing a certificate as to the satisfaction of the conditions set forth in this
Section 8.1(a).
(b) Licensing Agreement. Buyer shall have succeeded to all of
Seller's material rights and obligations under the "Individual Agreement on the
Licensing of the ADSL Chipset" between Seller and Alcatel dated April 20, 1998,
as amended (the "Alcatel Agreement").
(c) Closing Documents. Seller shall have delivered to Buyer
assignments (including Intellectual Property transfer documents) in the forms
attached hereto as Exhibit A.
(d) Claims. There shall be no action, lawsuit, litigation or other
proceeding initiated against Seller before any judicial or administrative court
or by any public authority that would have a material adverse effect upon the
Acquired Assets as a whole.
(e) No Injunctions or Restraints; Legality. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court or
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the transactions contemplated under this Agreement shall be in
effect, nor shall any proceeding brought by an administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, seeking any of the foregoing be pending; nor shall there be in effect
any law or regulation which shall restrain or prohibit the transactions
contemplated under this Agreement.
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8.2 Conditions of Seller's Obligations. The obligation of Seller to
consummate the transactions contemplated herein is subject to the satisfaction
(or waiver by Seller) of the conditions set forth below:
(a) Representations and Warranties of Buyer. The representations and
warranties of Buyer made in this Agreement shall be true and correct in all
material respects as of the Effective Date and as of the Closing Date. Buyer
shall have performed in all material respects its respective covenants and
agreements contained in this Agreement. Buyer shall have furnished to Seller at
Closing a certificate as to the satisfaction of the conditions set forth in this
Section 8.2(a).
(b) Payment. The payment of the Purchase Price in the manner set
forth in Section 2.3.
(c) Liquidation. The Plan shall have been duly approved and ratified
by the affirmative vote of a majority of all issued shares of Seller's equity at
Seller's stockholder meeting scheduled to be held on [______], 2002 (the
"Special Meeting"), or any adjournments or postponements thereof, and Seller
shall have filed the Certificate of Dissolution with the Secretary of State of
the State of Delaware.
(d) Authority. The purchase and sale of the Acquired Assets
contemplated hereby, shall have been duly approved and ratified by (i) the
affirmative vote of a majority of all issued shares of Seller's equity, and (ii)
the affirmative vote of a majority of all votes cast in person or by proxy at
the Special Meeting, or any adjournments or postponements thereof, excluding
votes of shares held by or on behalf of Xxxxxx Xxxx, Xxxxxx Xxx, Xxx Xxxx and
any other interested stockholders as shall have been determined by Seller's
board of directors in its sole discretion but in accordance with all applicable
laws and regulations (such stockholder votes described in the foregoing clauses
(i) and (ii) are referred to collectively as the "Stockholder Approval").
(e) No Injunctions or Restraints; Legality. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court or
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the transactions contemplated under this Agreement shall be in
effect, nor shall any proceeding brought by an administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, seeking any of the foregoing be pending; nor shall there be in effect
any law or regulation which shall restrain or prohibit the transactions
contemplated under this Agreement.
ARTICLE IX
ADDITIONAL AGREEMENTS
9.1 Right to Contact Third Parties. Seller shall not attempt to prohibit or
restrict Buyer from contacting third parties to attempt to effectuate the
assignment of any license agreements necessary or useful in connection with the
exploitation of the Acquired Assets provided such
-11-
assignment does not interfere with or restrict any of Seller's rights not
related to the Acquired Assets. Buyer shall notify Seller before it attempts to
contact any such third parties.
9.2 Right to Contact Seller Employees. Seller shall not attempt to prohibit
or restrict Buyer from directly or indirectly communicating with, soliciting or
attempting to solicit for employment employees of Seller.
9.3 Public Disclosure. The Parties will consult with each other and agree
before issuing any press release or otherwise making any public statement with
respect to the Acquisition or this Agreement and will not issue any such press
release or make any such public statement prior to such consultation and
agreement (which shall not be unreasonably withheld), except as may be required
by law (including, without limitation, securities laws) or any listing agreement
with the Nasdaq. Upon the Closing Date, the Parties shall issue a joint press
release announcing the closing of the Acquisition. The Parties agree and
acknowledge that Seller shall describe the terms and conditions of the
Acquisition in Seller's proxy statement for the Special Meeting.
9.4 Consents. Seller shall use commercially reasonable efforts to obtain
the consents, waivers and approvals under any of the Contracts designated in
Schedule D as may be required in connection with the Acquisition so as to assign
to Buyer all rights of, and benefits to, Seller thereunder. Buyer agrees to pay
all fees and costs necessary to obtain the foregoing consents, waivers and
approvals. For avoidance of doubt, the Parties agree and acknowledge that
obtaining any or all of such consents, waivers and approvals is not a condition
to Buyer's obligation to consummate the Acquisition except with respect to the
Alcatel Agreement as set forth in Section 8.1(b), and that failure to obtain any
such consent, waiver or approval shall not constitute a breach of this Agreement
by Buyer.
9.5 Reasonable Efforts; Further Assurances. Subject to the terms and
conditions provided in this Agreement, each of the Parties shall use
commercially reasonable efforts to take promptly, or cause to be taken, all
actions, and to do promptly, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated hereby to obtain all necessary waivers,
consents and approvals and to effect all necessary registrations and filings and
to remove any injunctions or other impediments or delays, legal or otherwise, in
order to consummate and make effective the transactions contemplated by this
Agreement for the purpose of securing to the Parties hereto the benefits
contemplated by this Agreement. Each Party hereto, at the request of the other
Party hereto, shall execute and deliver such other instruments and do and
perform such other acts and things as may be reasonably necessary or desirable
for effecting completely the consummation of this Agreement and the transactions
contemplated hereby.
9.6 Notification of Certain Matters. Seller shall give prompt notice to
Buyer, and Buyer shall give prompt notice to Seller, of (i) the occurrence or
non-occurrence of any event, the occurrence or non-occurrence of which is likely
to cause any representation or warranty of Seller or Buyer, respectively,
contained in this Agreement to be materially untrue or inaccurate at or prior to
the Closing Date except as contemplated by this Agreement and (ii) any failure
of Seller or Buyer, as
-12-
the case may be, to comply with or satisfy in any material respect any covenant,
condition or agreement to be complied with or satisfied by it hereunder;
provided, however, that the delivery of any notice pursuant to this Section 9.6
shall not limit any remedies available to the Party receiving such notice.
9.7 Confidentiality.
(a) Definition. "Confidential Information" means any information
disclosed to or made accessible to Buyer under this Agreement in which Seller
owed a duty of confidentiality to any third party, including, but not limited
to, customer lists, customer information, employee information, non-disclosure
clauses and agreements and confidentiality provisions in assumed agreements.
(b) Duty. Buyer shall treat as confidential all Confidential
Information. Without limiting the foregoing, Buyer shall use at least the same
degree of care which it uses to prevent the disclosure of its own confidential
information of like importance, but in no event less than reasonable care, to
prevent the unauthorized disclosure of Confidential Information and shall abide
by all confidentiality agreements assumed under this Agreement.
(c) Indemnification. Buyer shall indemnify and hold harmless Seller
against any and all costs, damages, losses, liabilities, obligations,
recoveries, settlements, judgments and expenses (including actual attorneys'
fees and expenses regardless of whether litigation was commenced) arising out of
or in connection with third party claims, actions, proceedings and the like
arising out of Buyer's breach of this Section 9.7.
9.8 Bulk Transfer Laws. Seller will comply with the provisions of all
applicable bulk transfer laws in connection with the Acquisition.
ARTICLE X
NO WARRANTIES
10.1 THE PARTIES EXPRESSLY ACKNOWLEDGE THAT ALL MATERIAL, EQUIPMENT AND
INFORMATION PROVIDED BY SELLER TO BUYER UNDER THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION ALL ACQUIRED ASSETS, ARE PROVIDED "AS IS. " EXCEPT AS EXPRESSLY
STATED HEREIN, SELLER MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE WITH RESPECT TO ANY OF THE ABOVE INFORMATION OR MATERIALS OR ANYTHING
ELSE UNDER THIS AGREEMENT, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES HEREBY ACKNOWLEDGE THAT THIS
ARTICLE X IS A MATERIAL TERM OF THIS AGREEMENT
-13-
THAT HAS BEEN BARGAINED FOR AND HAS BEEN FACTORED INTO THE PRICING AND OTHER
CONSIDERATION OF THIS AGREEMENT.
ARTICLE XI
TERMINATION
11.1 Termination of Agreement. This Agreement may be terminated at any time
prior to the Closing Date as provided below:
(a) Either Party may terminate this Agreement by giving written
notice to the other Party at any time prior to the Closing Date in the event the
other Party has breached any representation, warranty, or covenant contained in
this Agreement in any material respect and such breach has not been cured within
twenty (20) calendar days after written notice to the other Party; provided
however that no cure period shall be required for a breach that by its nature
cannot be cured.
(b) Seller may terminate this Agreement by giving written notice to
the Buyer at any time prior to the Closing Date in the event that (i) Seller
receives an offer from a third party to purchase the Acquired Assets at a price
higher than the Purchase Price, or (ii) Seller's board of directors determines
in its sole discretion that termination of this Agreement is reasonably
necessary in order to fulfill its fiduciary duties or obligations.
11.2 Effect of Termination. In the event of termination of this Agreement
as provided in Section 11.1, this Agreement shall forthwith become void and
there shall be no liability or obligation on the part of Buyer or Seller, or
their respective officers, directors or shareholders, provided that each Party
shall remain liable for any breaches of this Agreement prior to its termination,
and provided further that, the provisions of Articles I and IX and Sections 9.7
and 11.2 of this Agreement shall remain in full force and effect and survive any
termination of this Agreement.
ARTICLE XII
MISCELLANEOUS
12.1 No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
12.2 Taxes. Each Party hereby agrees to pay such taxes or fees required of
it under applicable laws and regulations of any jurisdiction on the transfer of
the Acquired Assets and properties contemplated herein.
12.3 Entire Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement between the Parties and supersedes any
prior understandings,
-14-
agreements, or representations by or between the Parties, written or oral, to
the extent they related in any way to the subject matter hereof.
12.4 Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. Neither Party shall be entitled to assign or transfer
either this Agreement or any of its rights, interests, or obligations hereunder
without the prior written approval of the other Party, except that Buyer shall
have the right to (i) assign any or all of its rights and interests hereunder to
one or more of its Affiliates, including its new company to be formed in R.O.C.
without the prior written consent of Seller and (ii) designate one or more of
its Affiliates to perform its obligations hereunder (in any or all of which
cases the Buyer nonetheless shall remain responsible for the performance of all
of its obligations hereunder).
12.5 Counterparts. This Agreement may be executed by facsimile and in one
or more counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
12.6 Headings. The Section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
12.7 Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to Buyer: Real Communications, Inc.
0000-X Xxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Copy to: Shartsis, Xxxxxx & Xxxxxxxx LLP
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Jahan X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-15-
If to Seller: Integrated Telecom Express, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Either Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, facsimile, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Either Party may change the address to which notices, requests,
demands, claims, and other communications hereunder are to be delivered by
giving the other Party notice in the manner herein set forth.
12.8 Governing Law. This Agreement shall be exclusively governed by and
construed in accordance with the domestic laws of the State of California
without giving effect to any choice or conflict of law provision or rule
(whether of the State of California or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
California.
12.9 Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by Buyer
and Seller.
12.10 Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
12.11 Expenses. Whether or not the Acquisition is consummated, all fees and
expenses incurred in connection with the Acquisition including, without
limitation, all legal, accounting, financial advisory, consulting and all other
fees and expenses of third parties incurred by a Party in connection with the
negotiation and effectuation of the terms and conditions of this Agreement and
the transactions contemplated hereby, shall be the obligation of the respective
Party incurring such fees and expenses.
-16-
12.12 Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring either Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean "including without limitation." The word "agreement"
when used herein shall be deemed in each case to mean any contract, commitment
or other agreement, whether oral or written, that is legally binding. Without
limiting the generality of the foregoing, the mere listing (or inclusion of a
copy) of a document or other item shall not be deemed adequate to disclose an
exception to a representation or warranty made herein (unless the representation
or warranty has to do with the existence of the document or other item itself).
The Parties intend that each representation, warranty and covenant contained
herein shall have independent significance. If either Party has breached any
representation, warranty or covenant contained herein in any respect, the fact
that there exists another representation, warranty or covenant relating to the
same subject matter (regardless of the relative levels of specificity) which the
Party has not breached shall not detract from or mitigate the fact that the
Party is in breach of the first representation, warranty or covenant.
12.13 Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
12.14 Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a Party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such Party, and the exercise by a Party of any one remedy will not preclude the
exercise of any other remedy.
12.15 Submission to Jurisdiction. Each of the Parties irrevocably consents
to the exclusive jurisdiction and venue of any state or federal court sitting in
Santa Xxxxx County, California, in any action or proceeding arising out of or
relating to this Agreement and agrees that all claims in respect of the action
or proceeding may be heard and determined in any such court. Each of the Parties
waives any defense of inconvenient forum to the maintenance of any action or
proceeding so brought and waives any bond, surety, or other security that might
be required of any other party with respect thereto. Each Party agrees that a
final judgment in any action or proceeding so brought shall be conclusive and
may be enforced by suit on the judgment or in any other manner provided by law
or in equity.
-17-
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
REAL COMMUNICATIONS, INC.
By: /s/ Xxxxxx Xxxx
--------------------------------
Name: Xxxxxx Xxxx
------------------------------
Title: Chairman
-----------------------------
INTEGRATED TELECOM EXPRESS, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
------------------------------
Title: President & CEO
-----------------------------
-18-
SCHEDULE A
ACQUIRED ASSETS
TRADEMARKS: The following registered trademarks of Seller:
TRADEMARK REGISTRATION NUMBER
--------------------------------------------------------- --------------------
ITeX .................................................... 2394013
ITeX logo ............................................... 2400671
A-1
PATENTS:
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
Docket
# Number Description Issue Date Patent Number
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
1 ITEX 97004 Modular multiplicative data rate modem and method of operation 5/16/00 6,065,060
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
2 ITEX 97006 Program for controlling DMT based modem using sub-channel selection to 6/6/00 6,073,179
achieve scaleable data rate based on available signal processing
resources
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
3 ITEX 00000 Xxxxxx of configuring and dynamically adapting data and energy 6/13/00 6,075,821
parameters in a multi-channel communications system
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
4 ITEX 97014 Digital subscriber loop access circuit for digital switch and packet 6/27/00 6,081,517
network interconnections
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
5 ITEX 97012 ADSL transceiver implemented with associated bit and energy loading 7/4/00 6,084,906
integrated circuit
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
6 ITEX 97010 Circuit for configuring and dynamically adapting data and energy 7/4/00 6,084,917
parameters in a multi-channel communications system
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
7 ITEX 98001 Flexible and scalable rate ADSL transceiver and system 7/11/00 6,088,385
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
8 ITEX 97002 xDSL DMT modem using sub-channel selection to achieve scaleable data 7/18/00 6,092,122
rate based on available signal processing resources
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
9 ITEX 97008 Circuit for configuring data and energy parameters in a multi-channel 7/25/00 6,094,459
communications system
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
10 ITEX 97003 Software rate adaptable modem with forward compatible and expandable 10/3/00 6,128,335
functionality and method of operation
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
11 ITEX 00000 Xxxxxx for configuring data and energy parameters in a multi-channel 10/3/00 6,128,348
communications system
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
12 ITEX 97015 Access and setup process for end-to-end data and analog voice 10/10/00 6,130,879
connections
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
13 ITEX 0000-0 Xxxxxx and circuit for controlling setup of multichannel system 4/24/01 6,222,888
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
14 ITEX 98003 System and method for reducing latency in software modem for high-speed 5/15/01 6,233,250
synchronous transmission
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
15 ITEX 97001 Forward compatible and expandable high speed communications system and 6/26/01 6,252,900
method of operation
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
16 ITEX 98002 System and method for detecting symbol boundary in multi-carrier 8/21/01 6,279,022
transmission systems
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
17 ITEX 2000-1 Dual mode bit and gain loading circuit and process 9/18/01 6,292,515
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
18 ITEX 99001 Universal DSL link interface between a DSL digital controller and a DSL 2/5/02 6,345,072
codec
-------- ------------ ------------------------------------------------------------------------- ------------ --------------
19 ITEX 97013 Configurable digital subscriber loop access and end-to-end data and 2/19/02 6,349,096
analog voice connection system
-----------------------------------------------------------------------------------------------------------------------
A-2
PATENT APPLICATIONS:
-------------------
-------------------------------------------------------------------------------------------------------------------------
Patent Application
Number Docket Number Description Open date Status Number
-------------------------------------------------------------------------------------------------------------------------
1 ITEX 2001-1 Scaleable Architecture for 3/1/2001 Wait for Office Action 09797633
Multiple-Port
-------------------------------------------------------------------------------------------------------------------------
2 ITEX 2001-10 Physical Medium Dependent 3/1/2001 Wait for Office Action 09798113
Sub-System
-------------------------------------------------------------------------------------------------------------------------
3 ITEX 2001-11 Transport Convergence 3/1/2001 Wait for Office Action 09797634
Sub-System
-------------------------------------------------------------------------------------------------------------------------
4 ITEX 2001-1PCT Scaleable Architecture for 3/1/2001 Sent in Demand 106809
Multiple-Port
-------------------------------------------------------------------------------------------------------------------------
5 ITEX 2001-2 System and Method for Internal 3/1/2001 Wait for Office Action 09797789
Operation
-------------------------------------------------------------------------------------------------------------------------
6 ITEX 2001-3 xDSL Communications Systems 3/1/2001 Wait for Office Action 09797778
Using
-------------------------------------------------------------------------------------------------------------------------
7 ITEX 2001-4 Mixed Hardware/Software 3/1/2001 Wait for Office Action 09797793
Architecture
-------------------------------------------------------------------------------------------------------------------------
8 ITEX 2001-5 xDSL Symbol Processor & Method 3/1/2001 Wait for Office Action 09797782
-------------------------------------------------------------------------------------------------------------------------
9 ITEX 2001-6 Logical Pipeline for Data 3/1/2001 Wait for Office Action 09798054
Communications System
-------------------------------------------------------------------------------------------------------------------------
10 ITEX 2001-7 xDSL Function ASIC Processor & 3/1/2001 Wait for Office Action 09798133
Method of Operation
-------------------------------------------------------------------------------------------------------------------------
11 ITEX 2001-8 Data Object Architecture and 3/1/2001 Wait for Office Action 09797755
Method for xDSL
-------------------------------------------------------------------------------------------------------------------------
12 ITEX 2001-9 Programmable Task Scheduler 3/1/2001 Wait for Office Action 09797648
-------------------------------------------------------------------------------------------------------------------------
13 ITEX 97-001(EP) Multicarrier Transmission with 6/30/1998 Entered regional phase 98112040.5
Variable Data Rate
-------------------------------------------------------------------------------------------------------------------------
14 ITEX 97-001(HK) Multicarrier Transmission with? 7/3/1999 Application Filed in Hong 99102806.2
Kong
-------------------------------------------------------------------------------------------------------------------------
15 ITEX 97-001(JP) Forward and Compatible 6/30/1998 Application Opened in Japan 185423
High-Speed Communications.
-------------------------------------------------------------------------------------------------------------------------
16 ITEX 97-001C Forward Compatible & 12/19/2000 Office Action mailed 09741748
Expandable High-Speed 2/28/02
-------------------------------------------------------------------------------------------------------------------------
17 ITEX 97-003(EP) Automatic Rate Adaptation 6/30/1998 Application Opened 1/7/99 98112008.2
-------------------------------------------------------------------------------------------------------------------------
18 ITEX 97-003(HK) Automatic Rate Adaptation 7/3/1999 Application Filed in Hong 99102805.3
Kong
-------------------------------------------------------------------------------------------------------------------------
19 ITEX 97-003(JP) Forward Compatible and 6/30/1998 Application Opened 185426
Expandable.
-------------------------------------------------------------------------------------------------------------------------
20 ITEX 97-005 Device Driver for 6/30/1997 Mailed Issue Fee 1/8/02 08884956
Rate-Adaptable?
-------------------------------------------------------------------------------------------------------------------------
21 ITEX 97-013 Configurable Digital 9/22/1997 Wait for Issue Branch 08934844
Subscriber Loop? Number
-------------------------------------------------------------------------------------------------------------------------
22 ITEX 97013C Configurable Digital 11/13/2001 Wait for 1st Office Action 09991285
Subscriber Loop Access
-------------------------------------------------------------------------------------------------------------------------
23 ITEX 97-016 Multiple Low Speed Sigma-Delta 8/27/1997 Issue Fee due 6/16/02 08925003
Analog?
-------------------------------------------------------------------------------------------------------------------------
24 ITEX 98-003C xDSL Modem with Asynchronous 2/20/2001 Response due 4/16/02 09789336
Transfer Mode
-------------------------------------------------------------------------------------------------------------------------
25 ITEX 98003E System & Method for Reducing 6/12/2001 Xxxxx handling PCT/US99/26944
Latency
-------------------------------------------------------------------------------------------------------------------------
26 ITEX 98003J System & Method for Reducing 5/14/2001 Filed by Patalyst/Nozaki 2000-583203
Latency
-------------------------------------------------------------------------------------------------------------------------
A-3
-------------------------------------------------------------------------------------------------------------------------
Patent Application
Number Docket Number Description Open date Status Number
-------------------------------------------------------------------------------------------------------------------------
27 ITEX 98003PCT System & Method for Reducing 11/15/1999 Xxxxx handling 9926944
Latency
-------------------------------------------------------------------------------------------------------------------------
28 ITEX 98-004 System and Method for 11/13/1998 Response due 3/28/02 09191147
Configuring Time Domain?
-------------------------------------------------------------------------------------------------------------------------
29 ITEX 99001C1 DSL Link with Scaleable 11/13/2001 Wait for 1st Office Action 10054410
Performance
-------------------------------------------------------------------------------------------------------------------------
30 ITEX 99001C2 DSL Link with Embedded Control 11/13/2001 Wait for 1st Office Action 10054327
-------------------------------------------------------------------------------------------------------------------------
31 ITEX 99001C3 Broadband I/O Circuits, 11/13/2001 Wait for 1st Office Action 10054294
Interface and Bus
-------------------------------------------------------------------------------------------------------------------------
32 ITEX 99-001E Universal DSL Link Interface? 9/18/2001 Entered national phase PCT/US/00/04430
-------------------------------------------------------------------------------------------------------------------------
33 ITEX 99-001J Universal DSL Link Interface? 8/17/2001 Filed by Patalyst/Nozaki 2000-601756
-------------------------------------------------------------------------------------------------------------------------
34 ITEX 99001PCT Universal DSL Link 2/22/2000 Entered national phase PCT/US/00/04430
-------------------------------------------------------------------------------------------------------------------------
35 M-7782 Tone Detect 8/31/99 Issue Fee due 5/21/02 09387657
-------------------------------------------------------------------------------------------------------------------------
36 M-7782WO Tone Detect 8/30/00 No entry in Japan/ Europe PCT/US00/23955
-------------------------------------------------------------------------------------------------------------------------
Legend
PCT = Patent Cooperation Treaty filing
WO = World Application
J = Japan
E/EP = Europe
HK = Hong Kong
C = Continuation
Items in bold denote cases that are otherwise allowed, and should be issued soon
MASKWORKS: All maskworks except for those maskworks directly related to
Seller's ADSL line tester line of products.
TRADE SECRETS: All trade secrets except for those trade secrets directly
related to Seller's ADSL line tester line of products.
INFORMATION AND KNOW-HOW DOCUMENTS: All information and know-how documents,
including without limitation design databases and test files, except for those
documents directly related to Seller's ADSL line tester line of products.
TECHNOLOGY: All technology, including without limitation software, except
for technology directly related to Seller's ADSL line tester line of products.
CUSTOMER LISTS AND LEAD INFORMATION: All customer lists and lead
information except such lists and information directly related to Seller's ADSL
line tester line of products or that Seller is prohibited by applicable law from
disclosing to Buyer pursuant to legal confidentiality obligations, if any, to
such customers.
EQUIPMENT: All equipment listed on Schedule A-1 attached hereto.
A-4
CHIPSETS AND BOARDS FOR RMA:
A3/ A5/ A6 chipsets:
i80234 2,500 pcs
i90135 1,000 pcs
i90388 1,000 pcs
i90388L 500 pcs
For Alcatel PCI boards:
250 boards
A-5
SCHEDULE B
EXCLUDED ASSETS
Only those assets, including without limitation all Intellectual
Property, related to the application software technology of Seller's ADSL line
tester line of products.
B-1
SCHEDULE C
ASSUMED LIABILITIES
TECHNICAL SUPPORT OBLIGATIONS: All technical support obligations of
Seller to customers of the Apollo Products and XXX Products under purchase
orders which were received by Seller during June 1, 2001 to May 31, 2002 and
have been furnished to Buyer no later than five (5) days before the Closing Date
of this Agreement. These obligations are based upon accepted specifications.
Buyer only assumes chipset hardware warranty, and software driver
warranty if there is a bug which occurs based upon Accepted Specifications.
Buyer will use RMA replacement to fix covered hardware chipsets, and use its
best commercial efforts to fix any covered software driver bug.
D-LINK SUPPORT: Buyer will provide D-Link (strategic customer) with
technical supports on Apollo 3 PCI & Apollo 5 and DSLAM interoperability. Buyer
is willing to negotiate in good faith to provide future Windows-OS driver
upgrade on Apollo 3 PCI.
OTHER: Notwithstanding the above, the Buyer is not obligated to provide
any upgrade software but is willing to negotiate in good faith to provide future
Windows-OS driver upgrade on Apollo 3 PCI. In addition, Buyer shall:
(a) provide Alcatel with technical supports on Apollo 3 PCI
chipset/board and DSLAM interoperability;
(b) provide Xxxxx with technical supports on Apollo 3 PCI chipset and
DSLAM interoperability; and
(c) provide AboCom with technical supports on Apollo 3 PCI/ CardBus
and DSLAM interoperability.
C-1
SCHEDULE D
CONTRACTS
1. License Agreement between Seller and Alcatel Xxxx N.V. dated
April 20, 1998.
2. OEM Agreement between Seller and Alcatel Xxxx N.V. dated
December 2, 1999.
3. Letter of Accepting Alcatel Networks under the 1999 OEM
Agreement between Seller and Alcatel Xxxx dated November 7,
2001.
4. Manufacture and Supply Agreement for ADSL PCI Network Interface
Card between Seller and Xxxxx Computer Corp.
5. Manufacture and Supply Agreement for PCMCIA based ADSL Line
Testers between Seller and AboCom Systems, Inc.
D-1
SCHEDULE E
FINANCING AGREEMENTS, CONTACT INFORMATION, INSURANCE AND LITIGATION
(a) Loan, credit or other financing agreements related to the
Acquired Assets: None.
(b) Names, addresses, telephone numbers and contact persons
of each distributor, agent, trade customer or supplier of Seller as of May 31,
2002, including the amount of sales to or purchases by each during the period
from January 1, 2002 to May 31, 2002:
Attached hereto as Schedules E-1 and E-2.
(c) All insurance policies in force with respect to Seller
and its properties and assets relating to the Acquired Assets including a brief
description of the risks insured, deductibles, amounts of coverages, premiums
and expiration dates:
Attached hereto as Schedule E-3.
(d) All judgments, awards or pending lawsuits, actions,
proceedings or litigation affecting the Acquired Assets with a brief description
of their nature or amounts:
In November 2001, a complaint captioned Xxxxxxx x. Integrated Telecom
Express, Inc., No. 01-CV-10108 was filed in federal district court for the
Southern District of New York, on behalf of a putative class of persons who
purchased Seller's common stock between August 18, 2000 and December 6, 2000. An
amended complaint was filed in April 2002. The amended complaint generally
alleges that various investment bank underwriters engaged in improper and
undisclosed activities related to the allocation of shares in Seller's initial
public offering of securities and subsequently issued false and misleading
analyst reports. The complaint brings claims for violation of several provisions
of the Securities Act of 1933 and the Securities Exchange Act of 1934 against
those underwriters and also against Seller and various of Seller's present and
former officers and directors. Similar lawsuits concerning more than 300 other
companies' initial public offerings have been filed and coordinated as In re
Initial Public Offering Securities Litigation, No. 21 MC 92. Seller believes
that the claims against Seller are without merit and intends to defend this
lawsuit vigorously. While the outcome of these claims is currently not
determinable, Seller does not expect that the ultimate costs to resolve these
claims will have a material adverse effect on Seller's financial position,
results of operations or cash flows.
In addition to the lawsuit mentioned above, from time to time, Seller
may become involved in litigation relating to claims arising from its ordinary
course of business. Seller is not currently a party to any material legal
proceeding of this nature.
E-1
SCHEDULE F
ALLOCATION OF PURCHASE PRICE AMONG ACQUIRED ASSETS
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Intangibles $1,334,200
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Equipment $ 140,000
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Chipsets and Boards for RMA $ 25,800
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Total $1,500,000
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F-1
