EXHIBIT 2.1
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ASSET PURCHASE AGREEMENT
BETWEEN
HIFN, INC.
(AS "BUYER"),
AND
INTERNATIONAL BUSINESS MACHINES CORPORATION
(AS "SELLER")
DATED: DECEMBER 30, 2003
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TABLE OF CONTENTS
Article I. Purchase and Sale of Assets............................. 9
1.1. Transferred Assets...................................... 9
1.2. Excluded Assets......................................... 9
1.3. Consideration........................................... 9
1.4. Assumed Liabilities..................................... 10
Article II. Closing................................................. 10
2.1. Closing Date............................................ 10
2.2. Closing Statement....................................... 10
Article III. Tax Matters............................................. 11
3.1. Allocation of Purchase Price............................ 11
3.2. Filing of Returns and Payment of Taxes.................. 11
3.3. Refunds and Credits..................................... 12
3.4. Transfer Taxes.......................................... 12
Article IV. Additional Covenants and Agreements..................... 12
4.1. Consents, Novations and Subcontracted Work.............. 12
4.2. Intentionally Omitted................................... 13
4.3. Intentionally Omitted................................... 13
4.4. Further Action.......................................... 13
4.5. Assumed Liabilities..................................... 13
4.6. Post Closing Payments................................... 13
Article V. Representations and Warranties of Buyer................. 14
5.1. Incorporation........................................... 14
5.2. Authority............................................... 14
5.3. No Conflict............................................. 14
5.4. Governmental Consents................................... 15
5.5. No Broker............................................... 15
Article VI. Representations and Warranties of Seller................ 15
6.1. Incorporation........................................... 15
6.2. Authority............................................... 15
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6.3. No Conflict............................................. 15
6.4. Governmental Consents................................... 16
6.5. No Broker............................................... 16
6.6. Title to Personal Property.............................. 16
6.7. Litigation.............................................. 16
6.8. No Rights In Others To Transferred Assets............... 16
6.9. Contracts............................................... 17
6.10. Intentionally Omitted................................... 17
6.11. Warranties.............................................. 17
6.12. Tax Matters............................................. 17
Article VII. Conditions of Buyer's Obligations....................... 17
7.1. Representations and Warranties.......................... 17
7.2. Consents, Approvals and Injunctions..................... 18
7.3. Governmental Rule....................................... 18
7.4. Injunctions, Orders..................................... 18
7.5. Operative Agreements.................................... 18
7.6. Closing Documents....................................... 18
7.7. Proceedings............................................. 19
Article VIII.Conditions to Seller's Obligations....................... 19
8.1. Payment of Purchase Price............................... 19
8.2. Representations and Warranties.......................... 19
8.3. Consents, Approvals and Injunctions..................... 19
8.4. Operative Agreements.................................... 20
8.5. Injunction, Orders...................................... 20
8.6. Closing Documents....................................... 20
8.7. Intentionally Omitted................................... 20
8.8. Proceedings............................................. 20
Article IX. General Matters......................................... 20
9.1. Survival of Representations and Warranties.............. 20
9.2. Limitation of Liability................................. 21
9.3. Public Announcements.................................... 21
9.4. Costs .................................................. 22
9.5. Due Diligence........................................... 22
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9.6. Bulk Sales.............................................. 22
9.7. Modification and Waiver................................. 22
9.8. Governing Law........................................... 22
9.9. Notices................................................. 23
9.10. Assignment.............................................. 23
9.11. Counterparts............................................ 23
9.12. No Third Party Beneficiaries............................ 23
9.13. Entire Agreement........................................ 24
9.14. Headings................................................ 24
Exhibits:
Exhibit A Assignment and Assumption Agreement............. 25
Exhibit B Xxxx of Sale.................................... 29
Exhibit C Schedule of Disclosures and Exceptions.......... 30
Schedules:
Schedule A Additional Permitted Liens
Schedule 1.1. Transferred Assets
Schedule 1.4. Assumed Liabilities
Schedule 3.1. Allocation of Purchase Price
Schedule 4.4 Required Consents to Assignment/Novation
Schedule 6.7. Litigation
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, dated as of December 30, 2003 (the
"Agreement"), by and among HIFN, INC., a Delaware corporation ("Buyer"), and
INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation ("Seller" or
"IBM").
W I T N E S S E T H:
WHEREAS, Seller wishes to sell the Transferred Assets (as defined herein)
used in the development and sale of certain picoprocessor network processor
products; and
WHEREAS, Buyer wishes to purchase from Seller, and Seller wishes to sell
to Buyer, the Transferred Assets for the Purchase Price (as defined herein) and
subject to the terms and conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the premises set forth above and the
respective covenants, agreements, representations and warranties hereinafter set
forth, Buyer and Seller hereby agree as follows:
DEFINITIONS.
CERTAIN DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings specified below:
"AFFILIATE" shall mean, as to any Person, any other Person that is
controlling, controlled by or under common control with such Person.
"ALLOCATION STATEMENTS" shall have the meaning set forth in Section 3.1.
"ASSUMED LIABILITIES" shall have the meaning set forth in Section 1.4.
"ASSUMPTION AGREEMENT" shall mean the Assignment and Assumption Agreement
in the form set out in Exhibit "A" to be entered into by Buyer and Seller on the
Closing Date and by which Buyer assumes the Assumed Liabilities.
"XXXX OF SALE" shall mean the Xxxx of Sale in the form set out in Exhibit
"B" to be entered into by Buyer and Seller on the Closing Date.
"BURDENSOME CONDITION" shall mean any action taken, or credibly
threatened, by or before any Governmental Authority or other Person to challenge
the legality of the transactions contemplated by the Operative Agreements or
that would otherwise deprive a Party of the material benefit of any such
transaction, including (i) the
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pendency of an investigation by a Governmental Authority (formal or informal),
(ii) the institution of any litigation, or threat thereof, (iii) an order by a
Governmental Authority of competent jurisdiction preventing consummation of the
transactions contemplated by the Operative Agreements or placing material
conditions or limitations upon such consummation, or (iv) the issuance of any
subpoena, civil investigative demand or other request for documents or
information relating to such transactions that is unreasonably burdensome in the
reasonable judgment of the applicable Person.
"CLOSING" shall have the meaning set forth in Section 2.1.
"CLOSING DATE" shall have the meaning set forth in Section 2.1.
"CLOSING STATEMENT" shall have the meaning set forth in Section 2.2.
"CODE" shall have the meaning set forth in Section 3.1.
"CONFIDENTIALITY AGREEMENT" shall mean that certain Confidentiality
Agreement between Seller and Buyer, regarding the transactions contemplated
herein entered into on the Date of Execution.
"CUSTOM SALES AGREEMENT" shall mean the agreement entitled Custom Sales
Agreement between the Seller and Buyer entered into as of the Closing Date,
including the attachments thereto.
"DATE OF EXECUTION" shall mean the date this Agreement and the other
Operative Agreements identified for signature on that date are signed.
"DISCLOSURE SCHEDULE" shall have the meaning set forth in the Schedule of
Disclosures and Exceptions to this Agreement.
"FINAL DETERMINATION" shall mean (i) in respect of U.S. Federal income
taxes a "determination" as defined in Section 1313(a) of the Code or the
execution of an Internal Revenue Service Form 870-AD, and (ii) in respect of
Taxes other than U.S. Federal income taxes, any final determination of liability
in respect of a Tax which determination, under applicable law, is not subject to
further appeal, review or modification through proceedings or otherwise
(including by reason of the expiration of a statute of limitations or a period
for the filing of claims for refunds, amended returns or appeals from adverse
determinations).
"GOVERNMENTAL ACTIONS" shall mean any authorizations, consents, approvals,
waivers, exceptions, variances, franchises, permissions, permits, and licenses
of, and filings and declarations with, Governmental Authorities, including the
expiration or termination of waiting periods imposed under the HSR Act.
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"GOVERNMENTAL AUTHORITY" shall mean any federal, state or local court,
governmental or administrative agency or commission or other governmental
agency, authority, instrumentality or regulatory body, domestic or foreign.
"GOVERNMENTAL RULE" shall mean any statute, law, treaty, rule, code,
ordinance, regulation or order of any Governmental Authority or any judgment,
decree, injunction, writ, order or like action of any federal, state or local
court, arbitrator or other judicial tribunal of competent jurisdiction, domestic
or foreign.
"HSR ACT" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"IN SCOPE PRODUCTS" shall have the meaning ascribed to it under the
Intellectual Property Agreements.
"INTELLECTUAL PROPERTY AGREEMENTS" shall mean the following agreements
entered into between the Buyer and Seller on the Date of Execution: (i)
Intellectual Property Agreement, and (ii) Patent License Agreement.
"LIENS" shall mean pledges, claims, liens, charges, encumbrances and
security interests of any kind or nature whatsoever.
"LIMITATION AMOUNT" shall have the meaning set forth in Section 9.2.
"OPERATIVE AGREEMENTS" shall mean this Agreement, the Xxxx of Sale, the
Assumption Agreement, the Transition Services Agreement, the Confidentiality
Agreement, the Custom Sales Agreement, and the Intellectual Property Agreements.
"PARTIES" shall mean Buyer and Seller.
"PARTY" shall mean Buyer or Seller.
"PERMITTED LIENS" shall mean: (i) Liens for Taxes, assessments and
governmental charges due and being contested in good faith by Seller; (ii) any
Liens upon any of the Transferred Assets, provided that the same are not of such
a nature that would materially adversely affect the value of the Transferred
Assets, taken as a whole; (iii) Liens for Taxes either not due and payable or
due but for which notice of assessment has not been given, or which may
thereafter be paid without penalty; (iv) undetermined or inchoate Liens, charges
and privileges incidental to current operations or the ordinary course of
business; (v) any statutory Liens, charges, adverse claims, security interests
or encumbrances of any nature whatsoever claimed or held by any Governmental
Authority that have not at the time been filed or registered against title to
the Transferred Assets or that relate to obligations that are not due or
delinquent; (vi) security given in the ordinary course of business to any public
utility, Governmental Authority or to any statutory or public authority in
connection with the Transferred Assets; (vii) other imperfections of title or
encumbrances, if any, which imperfections of title or other encumbrances do not
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materially impair the use of the assets to which they relate;; and (viii) any
Liens described on Schedule A.
"PERSON" shall mean any individual, firm, corporation, partnership,
limited liability company, trust, joint venture, Governmental Authority or other
entity, and shall include any successor (by merger or otherwise) of such entity.
"PRE-CLOSING TAX PERIOD" shall have the meaning set forth in Section 3.2.
"PURCHASE PRICE" shall have the meaning specified in Section 1.3.
"SUBCONTRACTED WORK" shall have the meaning set forth in Section 4.1.
"SUBSIDIARY" of any Person shall mean a corporation, company, or other
entity (i) more than 50% of whose outstanding shares or securities (representing
the right to vote for the election of directors or other managing authority)
are, or (ii) which does not have outstanding shares or securities (as may be the
case in a partnership, limited liability company, joint venture or
unincorporated association), but more than 50% of whose ownership interest
representing the right to make decisions for such entity is, now or hereafter
owned or controlled, directly or indirectly, by such Person, but such
corporation, company or other entity shall be deemed to be a Subsidiary only so
long as such ownership or control exists.
"TAX" OR "TAXES" shall mean all taxes, imposts, duties, withholdings,
charges, fees, levies, or other assessments imposed by any governmental or
taxing authority, whether domestic or foreign, (including but not limited to,
income, excise, property, sales, use, transfer, conveyance, payroll or other
employment related tax, license, registration, ad valorem, value added,
withholding, social security, national insurance (or other similar contributions
or payments), franchise, estimated severance, stamp taxes, taxes based upon or
measured by capital stock, net worth or gross receipts and other taxes) together
with all interest, fines, penalties and additions attributable to or imposed
with respect to such amounts and any obligations under any agreement or
arrangements with any Person with respect to such amounts.
"TAX RETURNS" shall have the meaning set forth in Section 3.2
"TRANSFERRED ASSETS" shall mean such tangible personal property listed on
Schedule 1.1 to this Agreement, subject to Section 1.1, as the same may be
depleted or augmented prior to the Closing Date while being managed in the
ordinary course of business.
"TRANSITION SERVICES AGREEMENT" shall mean the agreement so entitled
between Buyer and Seller entered into on the Date of Execution.
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ARTICLE I. PURCHASE AND SALE OF ASSETS.
1.1 TRANSFERRED ASSETS. Upon the terms and subject to the conditions
hereof, as of the Closing Date, Seller hereby sells, transfers, conveys, assigns
and delivers to Buyer, and Buyer hereby purchases and accepts from Seller, all
right, title and interest of Seller in and to the Transferred Assets (subject to
the Closing Statement adjustments). The Transferred Assets will be made
available on the Closing Date, where then located, it being understood and
agreed that (a) for any of the Transferred Assets on loan to a customer and
located at a customer's facility, such Transferred Assets will remain at the
customer's facility pursuant to, and in accordance with, the terms and
conditions of the applicable contract or agreement between Seller and customer,
and (b) for all inventory and test equipment, such Transferred Assets will be
used by Seller in support of its obligations to Buyer under the Transition
Services Agreement.
1.2. EXCLUDED ASSETS. Notwithstanding anything to the contrary in this
Agreement, any assets not set forth on Schedule 1.1 will be retained by Seller
and are excluded from the Transferred Assets, including, without limitation (i)
any interest in any contractual arrangement with any Affiliate of Seller, (ii)
any interests of Seller in real property or any fixtures, and (iii) all accounts
receivables in respect of goods or services shipped or provided by Seller or
Seller's Affiliates, directly or indirectly, prior to the end of the Closing
Date. All intellectual property matters are addressed exclusively in the
Intellectual Property Agreements, and no intellectual property matters are
included in the subject matter of this Agreement.
1.3. CONSIDERATION. The purchase price to be paid by Buyer to Seller
for the Transferred Assets (excluding inventory set forth in Schedule 1.1), the
matters set forth in the Intellectual Property Agreements and the Assumed
Liabilities shall be FIFTEEN MILLION US DOLLARS (US $15,000,000), and the
purchase price to be paid by Buyer to Seller for the inventory set forth in
Schedule 1.1 shall be NINE HUNDRED SEVENTY TWO THOUSAND EIGHT HUNDRED SIXTY SIX
US DOLLARS (US $972,866) (the combined amounts, hereafter referred to as the
"Purchase Price"). Therefore, on the Closing Date, Buyer shall pay to Seller the
aggregate amount set forth in this Section 1.3, which is FIFTEEN MILLION NINE
HUNDRED SEVENTY TWO THOUSAND EIGHT HUNDRED SIXTY SIX US DOLLARS (US
$15,972,866), by electronic funds transfer, such sum in immediately available
funds. All payments shall be made in United States dollars. The portion of the
Purchase Price attributed to inventory shall be paid to the following account:
Account Name: IBM Corporation Concentration Account
Account No.: 323-213499
Bank: The Chase Xxxxxxxxx Xxxx
Xxx Xxxx, XX 00000
ABA Routing No: 000000000
SWIFT: XXXXXX00
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The remaining portion of the Purchase Price shall be paid to the following
account:
Account Name: International Business Machines Corporation
Bank: The Bank of New York, 0 Xxxx Xx., XX, XX 00000
Account Number: 000-0000-000
Reference: IBM, Director of Licensing
ABA Routing Number: 0000-0000-0
SWIFT Code: XXXXXX0X
1.4. ASSUMED LIABILITIES. Upon the terms and subject to the conditions
hereof, as of the Closing, Seller will assign and transfer to Buyer, and Buyer
will assume, and thereafter shall fully perform and discharge, on a timely basis
and in accordance with their respective terms and conditions (a) the
liabilities, obligations and commitments of Seller listed on Schedule 1.4
hereto, (including, without limitation, the contracts being assigned in whole or
in part to Buyer), (b) all warranty obligations of Seller for any In Scope
Products (and reference platforms related thereto) sold by Seller to any
customers or distributors prior to Closing Date, and (c) the existing software
maintenance obligations of Seller listed in Schedule 1.4 with respect to
software licensed by Seller prior to Closing Date in connection with any In
Scope Product (collectively, subsections (a), (b), (c) are referred to as the
"Assumed Liabilities"). Except for the Assumed Liabilities or as provided in the
Operative Agreements, Buyer is not assuming or undertaking any obligations or
liabilities of Seller of any nature related to Seller's or its Affiliates'
operations or sales of the In Scope Products prior to the Closing Date.
ARTICLE II. CLOSING.
2.1. CLOSING DATE. Subject to the conditions set forth in Articles VII and
VIII below, the closing of the transaction provided for in this Agreement (the
"Closing") shall take place at the offices of Seller on the third business day
following the expiration or early termination of all applicable HSR waiting
periods and the satisfaction or waiver of the other conditions set forth in
Articles VII and VIII hereof, or at such other time or on such other date as may
be agreed by Seller and Buyer (the "Closing Date"). All transactions provided
for herein to occur on and as of the Closing Date shall be deemed to have
occurred simultaneously and to be effective as soon as the Parties have
completed the Closing or as of the close of business on the Closing Date,
whichever first occurs.
2.2. CLOSING STATEMENT. Within six (6) days after Closing, Seller will
prepare and deliver to Buyer a closing statement for the inventory and test
equipment that constitute the Transferred Assets (the "Closing Statement"), as
of the Closing Date. The purpose of the Closing Statement is to correctly
reflect any changes in the listing of such physical assets between the Date of
Execution and the Closing. For purposes of the Closing Statement, each unit of
inventory will be assigned the price ascribed to it in Schedule 1.1 and each
piece of test equipment will be assigned its net book value on the books of the
Seller as of the Closing Date. The Closing Statement shall become final and
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binding upon the Parties unless Buyer gives written notice of its disagreement
of such items included on or excluded from the Closing Statement within six (6)
days following Buyer's receipt of the Closing Statement. Any such notice shall
specify in reasonable detail the nature of any disagreement so asserted. In the
event that the Closing Statement (as finally resolved) indicates an error in the
Purchase Price, within 15 days of such statement becoming final, such error
shall be corrected by either (i) Seller tendering a check to Buyer in the event
that Buyer overpaid at the Closing or (ii) Buyer tendering a check to Seller in
the event that Buyer underpaid at the Closing.
ARTICLE III. TAX MATTERS.
3.1. ALLOCATION OF PURCHASE PRICE. Except as otherwise required pursuant
to a Final Determination, Buyer and Seller agree on a tax allocation of the
Purchase Price as set forth in Schedule 3.1 (the "Allocation Statements"),
allocating the total of the Purchase Price (and other payments properly treated
as additional Purchase Price for Tax purposes) to the different Transferred
Assets pursuant to Section 1060 of the Internal Revenue Code of 1986, as
amended, and the Treasury Regulations promulgated thereunder (hereinafter, the
"Code").
Buyer and Seller shall each file all income, franchise and other Tax
Returns (as defined below), and execute such other documents as may be required
by any Governmental Authority, in a manner consistent with the Allocation
Statements. Buyer shall prepare the Form 8594 under Section 1060 of the Code
based on the Allocation Statements and deliver such form and all documentation
used in the preparation and support of such Allocation Statements and form
(including, but not limited to, appraisals) to the Seller within 30 days after
finalizing of the Allocation Statements. The Buyer and the Seller agree to file
such form with each relevant taxing authority and to refrain from taking any
position inconsistent with such form or Allocation Statements.
3.2. FILING OF RETURNS AND PAYMENT OF TAXES. Seller shall prepare and
file, or cause to be prepared and filed, with the appropriate authorities all
Tax returns, reports and forms (herein "Tax Returns") and shall pay, or cause to
be paid, when due all Taxes relating to the Transferred Assets attributable to
any taxable period which ends on or prior to the Closing Date (herein
"Pre-Closing Tax Period"). Buyer shall prepare and file, or cause to be prepared
and filed, with the appropriate authorities all Tax Returns, and shall pay, or
cause to be paid, when due all Taxes relating to the Transferred Assets
attributable to taxable periods which are not part of the Pre-Closing Tax
Period. If, in order to properly prepare its Tax Returns or other documents
required to be filed with Governmental Authorities, it is necessary that a party
be furnished with additional information, documents or records relating to the
Transferred Assets, both Seller and Buyer agree to use reasonable efforts to
furnish or make available such non-privileged information at the recipient's
request, cost and expense provided, however, that no party shall be entitled to
review or examine the Tax Returns of any other party.
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For purposes of this Section 3.2, in the case of any Taxable period that
includes (but does not end on) the Closing Date (a "Straddle Period"), the Taxes
for the Pre-Closing Tax Period shall be computed as if the Pre-Closing Tax
Period ended as of the close of business on the Closing Date and the amount of
Taxes for taxable periods that are not party of the Pre-Closing Tax Period shall
be the excess, if any, of (x) the Taxes for the Straddle Period over (y) the
Taxes for the Pre-Closing Tax Period.
3.3. REFUNDS AND CREDITS. Any refunds and credits attributable to the
Pre-Closing Tax Period shall be for the account of the Seller and any refunds
and credits attributable to the period that is not part of the Pre-Closing Tax
Period shall be for the account of the Buyer.
3.4. TRANSFER TAXES. All transfer, documentary, sales, use, registration,
value-added, real estate transfer, and any similar taxes and related fees
(including interest, penalties and additions to tax) incurred in connection with
this Agreement, the other Operative Agreements and the transactions contemplated
hereby and thereby shall be borne by Buyer, in addition to the consideration
provided for in Section 1.3. To the extent permitted by applicable law, Buyer
and Seller shall cooperate with each other to obtain exemptions from such taxes,
provided that neither party shall be obligated to seek any exemption that could
reasonably be expected to result in any governmental audit of its books and
records.
ARTICLE IV. ADDITIONAL COVENANTS AND AGREEMENTS.
4.1. CONSENTS, NOVATIONS AND SUBCONTRACTED WORK. Buyer and Seller shall
use reasonable efforts to obtain, as soon as practicable, all requisite consents
to transfers, assignments and novations, as the case may be, of all of the
Transferred Assets and the Assumed Liabilities. Buyer shall cooperate with
Seller (including, where necessary, entering into appropriate instruments of
assumption as shall be agreed upon) to have Seller released from all liability
to third parties with respect to the Assumed Liabilities, and the Parties will
each solicit such releases concurrently, in a manner acceptable to the Parties,
with the solicitation of consents from third parties to the transfer, assignment
and/or novation of the Transferred Assets and the Assumed Liabilities; provided,
that neither Party shall be required to grant any consideration to any third
party in order to obtain any such consent, assignment, novation, assumption or
release. With respect to any Assumed Liabilities for which Seller has any
secondary liability to third parties, Buyer shall provide Seller reasonable
access and information in order for Seller to ascertain continuing compliance by
Buyer with all contract terms and conditions applicable thereto. The material
consents to assignments or novations identified by the Parties as of the Date of
Execution, if any, are listed on Schedule 4.1. If any such required consents and
novations cannot be secured without the incurring of any significant additional
costs, where additional action is deemed necessary by the Parties, the Parties
hereby agree to proceed with respect to the underlying rights and obligations as
shall permit Buyer to perform the obligations of Seller thereunder, as a
subcontractor or otherwise, and Buyer to obtain the benefit thereof (the
"Subcontracted Work"); and
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until the requisite consents and novations are obtained, such obligations will
not be deemed to be included in the Assumed Liabilities and nothing contained
herein will be deemed to constitute a breach of the contract underlying such
rights and obligations. Buyer agrees to diligently perform and discharge the
obligations of Seller in connection with the Subcontracted Work directly, or
indirectly through Seller, as applicable; and to the extent that consents to
assignment and novation are obtained after the Closing, the Parties agree that
such obligations will no longer be considered to be Subcontracted Work at such
time, but will instead be deemed to be Assumed Liabilities for all purposes of
this Agreement.
4.2. INTENTIONALLY OMITTED.
4.3. INTENTIONALLY OMITTED.
4.4. FURTHER ACTION. Each of the Parties agrees to execute and deliver
after the Closing Date such other documents, certificates, agreements and other
writings and to take such other actions as may be necessary or desirable, in the
opinion of both Parties' counsel, in order to consummate or implement
expeditiously the transactions contemplated hereby. If, within one hundred
twenty (120) days after the Closing Date, the Parties determine that certain
tangible assets or material contracts (other than any vendor contracts,
distributor contracts, or any contracts regarding intellectual property matters)
used exclusively in the sale of the In Scope Products as of the Closing Date
were mistakenly omitted from Schedule 1.1 or Schedule 1.4, respectively, then
the Parties shall work in good faith to resolve such omission.
4.5. ASSUMED LIABILITIES. Buyer shall discharge the Assumed Liabilities on
a timely basis and in accordance with their terms and Buyer agrees that Seller
shall have no liability for any failure of Buyer to discharge the Assumed
Liabilities in accordance with their terms.
4.6. POST-CLOSING PAYMENTS. The Parties acknowledge that, after the
Closing Date, Seller may make payments to third parties on behalf of Buyer
associated with the Transferred Assets and Assumed Liabilities. Buyer agrees to
reimburse Seller for such payments immediately upon receipt of an invoice from
Seller. Seller shall invoice Buyer monthly on the fifth (5th) day of each month.
If Buyer disputes such invoice on the basis that such payment did not relate to
the Transferred Assets or the Assumed Liabilities, Buyer shall, within three (3)
business days of receiving such invoice, give notice to Seller of such dispute
and the Parties shall act in good faith to immediately resolve such dispute. All
amounts payable by Buyer to Seller pursuant to this Section 4.6, shall be paid
in immediately available funds in U.S. dollars to Seller's account set forth in
Section 1.3.
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
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5.1. INCORPORATION. Buyer is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware, with all
requisite corporate power and authority to own its properties and conduct its
business as now being conducted, and is duly qualified in each jurisdiction in
which its ownership of property requires such qualification except where the
failure to so qualify would not have a material adverse effect on Buyer.
5.2. AUTHORITY. (a) Buyer has the requisite corporate power and authority
to execute and deliver each of the Operative Agreements and to perform its
obligations under each of the foregoing. Each of the Operative Agreements has
been duly and validly authorized, executed and delivered by Buyer and
constitutes the valid and binding agreement of Buyer in accordance with its
respective terms. No other corporate proceedings on the part of Buyer are
necessary to authorize the Operative Agreements and the transactions
contemplated by any of the foregoing.
5.3. NO CONFLICT. The execution and delivery by Buyer of each of the
Operative Agreements does not, and the performance of its obligations
thereunder, will not:
(a) conflict with, or result in a breach of, any of the provisions of its
Certification of Incorporation or By-Laws;
(b) breach, violate or contravene any Governmental Rule, or create any
right of termination or acceleration or encumbrance, that, singly or in the
aggregate, would have a material adverse effect on its authority or ability to
perform any of its obligations under this Agreement or the other Operative
Agreements or the Assumed Liabilities; or
(c) conflict in any respect with, or result in a breach of or default
under, any contract, license, franchise, permit or any other agreement or
instrument to which Buyer or any of its Subsidiaries is a party or by which it
or any of its Subsidiaries or any of its or their properties may be affected or
bound that, singly or in the aggregate, would have a material adverse effect on
its authority or ability to perform its obligations under this Agreement or the
other Operative Agreements or the Assumed Liabilities.
5.4. GOVERNMENTAL CONSENTS. Other than compliance with the HSR Act
pre-notification requirements, if required, no material consent, approval or
authorization of, or designation, declaration or filing with, any Governmental
Authority on the part of Buyer is required in connection with the execution or
delivery by Buyer of this Agreement or the other Operative Agreements, or the
consummation by Buyer of the transactions contemplated by any of the foregoing.
5.5. NO BROKER. Neither Buyer nor any of its Subsidiaries has engaged any
corporation, firm or other Person who is entitled to any fee or commission as a
finder or a broker in connection with the negotiation of this Agreement or the
other Operative Agreements or the consummation of the transactions contemplated
hereby and thereby, and Buyer shall be responsible for all liabilities and
claims (including costs and expenses of defending against same) arising in
connection with any claim by a finder or broker that
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it acted on behalf of Buyer or any of its Subsidiaries in connection with the
transactions contemplated hereby and thereby.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth on the disclosure schedule delivered by the Seller to
Buyer (the "Disclosure Schedule"), Seller hereby represents and warrants to
Buyer as follows:
6.1. INCORPORATION. Seller is a duly incorporated and validly existing
corporation in good standing under the laws of the State of New York, with all
requisite corporate power and authority to own its properties and conduct its
business, and is duly qualified in each jurisdiction in which its ownership of
property requires such qualification except where the failure to so qualify
would not have a material adverse effect upon the Transferred Assets.
6.2. AUTHORITY. Seller has the requisite corporate power and authority to
execute and deliver each of the Operative Agreements and to perform its
obligations under each of the foregoing. Each of the Operative Agreements has
been duly and validly authorized, executed and delivered by Seller and
constitutes the valid and binding agreement of Seller in accordance with its
respective terms. No other corporate proceedings on the part of Seller are
necessary to authorize the Operative Agreements and the transactions
contemplated by any of the foregoing.
6.3. NO CONFLICT. The execution and delivery by Seller of this Agreement
and each of the other Operative Agreements does not, and the performance by
Seller of its obligations thereunder will not:
(a) conflict with, or result in a breach of, any of the provisions of its
Articles of Incorporation or By-Laws;
(b) breach, violate or contravene any applicable federal or state (or any
political subdivision thereof) law, rule or regulation, domestic or foreign, or
any order, writ, judgment, injunction, decree, determination or award, or create
any right of termination or acceleration or encumbrance, that, singly or in the
aggregate, would have a material adverse effect on (i) its authority or ability
to perform its obligations under each of the Operative Agreements, or (ii) the
Transferred Assets; or
(c) conflict in any respect with, or result in a breach of or default
under, any contract, license, franchise, permit or any other agreement or
instrument to which Seller is a party or by which it or any of the Transferred
Assets may be bound that, singly or in the aggregate, would have a material
adverse effect on (i) its authority or ability to perform its obligations under
each of the Operative Agreements, or (ii) the Transferred Assets (except for
agreements and instruments that require the consent or approval of a third party
for the transactions contemplated by this Agreement).
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6.4. GOVERNMENTAL CONSENTS. Other than compliance with the HSR
pre-notification requirements and Section 6.10, no material consent, approval or
authorization of, or designation, declaration or filing with, any Governmental
Authority on the part of Seller is required in connection with the execution or
delivery by Seller of this Agreement or the other Operative Agreements or the
consummation by Seller of the transactions contemplated by any of the foregoing.
6.5. NO BROKER. Seller has engaged no corporation, firm or other Person
who is entitled to any fee or commission as a finder or a broker in connection
with the negotiation of this Agreement or the other Operative Agreements or the
consummation of the transactions contemplated hereby and thereby, and Seller
shall be responsible for all liabilities and claims (including costs and
expenses of defending against same) arising in connection with any claim by a
finder or broker that it acted on behalf of Seller in connection with the
transactions contemplated hereby.
6.6. TITLE TO PERSONAL PROPERTY. Seller has good and marketable title to
all tangible personal property listed on Schedule 1.1 hereto, free and clear of
any Liens, other than Permitted Liens.
6.7. LITIGATION. Except as disclosed on Schedule 6.7, there are no
actions, suits, proceedings or investigations pending or, to Seller's knowledge,
threatened in a writing to Seller against or directly affecting the Transferred
Assets, at law or in equity, including any administrative proceedings or
condemnation actions with any Governmental Authority. There is no existing
default by Seller with respect to any judgment, order, writ, injunction or
decree of any Governmental Authority or arbitrator that materially adversely
affects the Transferred Assets.
6.8. NO RIGHTS IN OTHERS TO TRANSFERRED ASSETS. Neither Seller nor any
Affiliate of Seller is party to any outstanding contracts or other arrangements
giving any Person any present or future right to require Seller to transfer to
any Person any ownership or possessory interest in, or to grant any lien on, any
of the Transferred Assets, other than pursuant to this Agreement.
6.9. CONTRACTS. Schedule 1.4 contains a true and complete list of all
material contracts included in the Transferred Assets and Assumed Liabilities.
Seller has performed or is performing all material obligations required to be
performed by it under such contracts and is not (with or without notice, lapse
of time or both) in breach or default in any material respect thereunder; and,
to the knowledge of Seller, no other party to any of such contracts is (with or
without notice or lapse of time or both) in breach or default in any material
respect thereunder.
6.10. INTENTIONALLY OMITTED.
6.11. WARRANTIES. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES
MADE BY SELLER IN THIS ARTICLE VI, SELLER MAKES NO REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, CONCERNING
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THE TRANSFERRED ASSETS AND ASSUMED LIABILITIES, IT BEING SPECIFICALLY UNDERSTOOD
BY BUYER THAT, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS ARTICLE VI,
THE TRANSFERRED ASSETS AND ASSUMED LIABILITIES ARE BEING SOLD AND TRANSFERRED
"AS IS" IN ALL RESPECTS. SELLER SPECIFICALLY DISCLAIMS ANY WARRANTY OF
MERCHANTABILITY OR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF BUYER'S,
WHETHER OR NOT SELLER HAS BEEN MADE AWARE OF ANY SUCH PURPOSE.
6.12 TAX MATTERS. Seller has timely filed within the time period for
filing or any extension granted with respect thereto, all Tax returns which it
is required to file relating or pertaining to any and all Taxes attributable to
or levied upon the Transferred Assets with respect to the Pre-Closing Tax Period
and has paid any and all Taxes it is required to pay in connection with the
taxable period to which such Tax returns relate. There are (and as of
immediately following the Closing there will be) no liens for Taxes on the
Transferred Assets, other than Permitted Liens, and no action, proceeding or, to
the knowledge of Seller, investigation has been instituted against Seller which
would give rise to any such lien, other than Permitted Liens. Seller has no
knowledge of any claims asserted or threatened with respect to any Taxes. None
of the Transferred Assets are treated as "tax-exempt use property" within the
meaning of Section 168(b) of the Code.
ARTICLE VII. 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 in this Article.
7.1. REPRESENTATIONS AND WARRANTIES. Subject to Section 9.2, the
representations and warranties of Seller made in this Agreement shall be true
and correct in all material respects as of the Date of Execution and as of the
Closing Date with the same effect as if made at and as of the Closing Date,
except to the extent such representations and warranties expressly relate to an
earlier time in which case such representations and warranties shall be true and
correct in all material respects as of such earlier time. Seller shall have
performed in all material respects its respective covenants and agreements
contained in this Agreement and the other Operative Agreements required to be
performed at or prior to the Closing.
7.2. CONSENTS, APPROVALS, AND INJUNCTIONS. (a) Seller shall have obtained
or made all consents, approvals, orders, licenses, permits and authorizations
of, and registrations, declarations and filings with, any Governmental Authority
or any other Person required to be obtained or made by or with respect to the
Transferred Assets in connection with the execution and delivery of this
Agreement and the other Operative Agreements.
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Confidential.
(b) No injunction, order or decree of any Governmental Authority shall be
in effect as of the Closing, and no lawsuit, claim, proceeding or investigation
shall be pending or threatened by or before any Governmental Authority as of the
Closing, which would restrain, prohibit or make unlawful the consummation of the
transactions contemplated by the Operative Agreements or invalidate or suspend
any provision of the Operative Agreements.
(c) No action or proceeding challenging the transactions or any provision
of this Agreement or the other Operative Agreements shall be pending or
threatened against any party.
7.3. GOVERNMENTAL RULE. No Governmental Rule shall have been instituted,
issued or proposed to restrain, enjoin or prevent the transfer of the
Transferred Assets as contemplated hereby or to invalidate, suspend or require
modification of any material provision of any Operative Agreement.
7.4. OPERATIVE AGREEMENTS. Seller shall have entered into each of the
Operative Agreements to be executed by it and each such Operative Agreement
shall be in full force and effect without breach thereunder by Seller.
7.5. INJUNCTIONS, ORDERS. No injunction, order or decree of any
Governmental Authority shall be in effect as of the Closing, and no lawsuit,
claim, proceeding or investigation shall be pending or threatened by or before
any Governmental Authority as of the Closing, which would restrain, prohibit or
make unlawful the transfer of the Transferred Assets or invalidate or suspend
any provision of any Operative Agreement.
7.6. CLOSING DOCUMENTS. Seller shall have delivered to Buyer the following
documents:
(a) a certificate, dated as of the Closing Date, to the effect that the
representations and warranties of Seller in this Agreement are true and correct
and that all actions required to be taken by Seller prior to the Closing have
been duly taken; and
(b) a certificate of the secretary or assistant secretary of Seller, dated
the Closing Date, as to the continued existence of Seller.
7.7. PROCEEDINGS. All corporate and legal proceedings taken by Seller in
connection with the execution of the Operative Agreements and the transfer of
the Transferred Assets shall be reasonably satisfactory in form and substance to
Buyer and its counsel, and Buyer shall have received all such certified or other
copies of all such documents as it shall have reasonably requested.
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7.8. USE OF TRANSFERRED ASSETS. Seller's use of the Transferred Assets
from the Date of Execution until the Closing Date shall have been generally
consistent with Seller's past practices with respect to such Transferred Assets
prior to the Date of Execution; it being understood that Seller intends to
fulfill purchase orders from the inventory until the end of the Closing Date,
and that the parties will adjust the Purchase Price for any change in the
Transferred Assets pursuant to Section 2.2.
ARTICLE VIII. CONDITIONS TO SELLER'S OBLIGATIONS.
The obligations of Seller to consummate the transactions contemplated
herein shall be subject to the satisfaction (or waiver by Seller) of the
conditions set forth below in this Article.
8.1 PAYMENT OF PURCHASE PRICE. The payment of the Purchase Price in the
manner specified in Section 1.3, and all other consideration set forth in
Section 1.3 or the other Operative Agreements due at Closing.
8.2. REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Buyer made in this Agreement shall be true and correct in all material respects
as of the Date of Execution and as of the Closing Date with the same effect as
if made at and as of the Closing Date, except to the extent such representations
and warranties expressly relate to an earlier time in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier time. Buyer shall have performed in all material
respects its respective covenants and agreements contained in this Agreement and
the other Operative Agreements required to be performed at or prior to the
Closing.
8.3. CONSENTS, APPROVALS AND INJUNCTIONS. (a) Buyer shall have obtained or
made all consents, approvals, licenses, permits and authorizations of, and
registrations, declarations and filings with, any Governmental Authority or any
other Person required to be obtained or made by or with respect to Buyer in
connection with the execution and delivery of this Agreement and the other
Operative Agreements.
(b) No injunction, order or decree of any Governmental Authority shall be
in effect as of the Closing, and no lawsuit, claim, proceeding or investigation
shall be pending or threatened by or before any Governmental Authority as of the
Closing, which would restrain, prohibit or make unlawful the transfer of the
Transferred Assets or the Assumed Liabilities or invalidate or suspend any
provision of the Operative Agreements.
(c) No Burdensome Condition shall exist with respect to Seller in
connection with the transactions contemplated by the Operative Agreements.
8.4. OPERATIVE AGREEMENTS. Buyer shall have entered into each of the
Operative Agreements to be executed by it and each such Operative Agreement
shall be in full force and effect without breach thereunder by Buyer.
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8.5. INJUNCTIONS, ORDERS. No injunction, order or decree of any
Governmental Authority shall be in effect as of the Closing, and no lawsuit,
claim, proceeding or investigation shall be pending or threatened by or before
any Governmental Authority as of the Closing, which would restrain, prohibit or
make unlawful the transfer of the Transferred Assets or invalidate or suspend
any provision of any Operative Agreement.
8.6. CLOSING DOCUMENTS. Buyer shall have delivered to Seller the following
documents:
(a) a certificate of an authorized officer of Buyer, dated the Closing
Date, to the effect that Buyer's representations and warranties in this
Agreement are true and correct and that all actions required to be taken by
Buyer have been duly taken; and
(b) a certificate of the secretary or assistant secretary of Buyer, dated
the Closing Date, as to the continued existence of Buyer, certifying the
authorization of the execution, delivery and performance of the Operative
Agreements and the corporate approvals of Buyer authorizing the actions to be
taken by Buyer under the Operative Agreements.
8.7. INTENTIONALLY OMITTED.
8.8. PROCEEDINGS. All corporate and legal proceedings taken by Buyer in
connection with the transactions contemplated by the Operative Agreements and
all documents and papers relating to such transactions shall be reasonably
satisfactory in form and substance to Seller and its counsel, and Seller shall
have received all such certified or other copies of all such documents as it
shall have reasonably requested.
ARTICLE IX. GENERAL MATTERS.
9.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made by the Parties in this Agreement or in any schedule, document,
certificate or other instrument delivered by or on behalf of the Parties
pursuant to this Agreement shall survive the Closing for a period of twelve (12)
months after the Closing Date; provided, however, that all representations and
warranties relating to the Assumed Liabilities shall survive the Closing Date
until the expiration of the applicable statute of limitation with respect
thereto.
9.2. LIMITATION OF LIABILITY. Notwithstanding anything to the contrary set
forth in the Operative Agreements, unless this section is specifically excluded
from application to a specific Operative Agreement, Seller shall not be liable
for any amounts with respect to the breach of any representations or warranties
contained in any Operative Agreement unless and until such amounts shall exceed
in the aggregate $50,000 (the "Limitation Amount") (in which case Seller shall
only be liable with respect to the excess over the Limitation Amount). There
shall be no Seller liability with respect to any such
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Confidential.
matter for individual amounts of less than $25,000 and such amounts shall not be
taken into account in determining whether the Limitation Amount has been
exceeded. Notwithstanding anything to the contrary set forth in the Operative
Agreements, unless this section is specifically excluded from application to a
specific Operative Agreement or provision in an Operative Agreement, in no event
shall Seller's total liability with respect to any and all causes of action
arising out of, or related to, any representations or warranties contained in
the Operative Agreements exceed Four Million U.S. Dollars (US $4,000,000) in the
aggregate provided, however that such limitation shall not be applicable with
respect to Seller's representation set forth in Section 6.6 of this Agreement.
For purposes of this Section 9.2 only, reference to the Operative Agreements
shall exclude the Custom Sales Agreement. Neither Seller nor Buyer shall be
responsible for any indirect, incidental, punitive, special or consequential
damages whatsoever, including, but not limited to, loss of profits, goodwill,
business interruptions, or claims of customers, even if advised of the
possibility of such damages.
9.3. PUBLIC ANNOUNCEMENTS. The Operative Agreements and the proposed
transaction is subject to and confidential under the Confidentiality Agreement.
For six (6) months after the Closing Date, all public announcements relating to
this Agreement or the transactions contemplated hereby shall be made only after
consultation between the Parties, except for disclosures by either Party that in
the opinion of counsel for such Party are required by law, rule or regulation.
Any disclosures to customers in connection with commercial relationships shall
not reveal the Purchase Price of this Agreement. Notwithstanding the foregoing,
either Party shall have the right, in its sole discretion, to make such
disclosures as it may deem necessary or advisable to any Governmental Authority.
In the event of a breach or anticipatory breach of this Section 9.3 by either
Party, the other Party shall be entitled, in addition to any and all other
remedies available at law or in equity, to preliminary and permanent injunctive
relief and specific performance without proving damages.
Each of the parties hereto will rely on their own advisors with respect to
advice regarding the tax treatment and structure of the transactions
contemplated herein (the "Transaction"). The parties also recognize that under
IRS regulations promulgated with respect to tax shelters ("Tax Shelter
Regulations"), a transaction may be deemed a "confidential transaction"
thereunder unless the related agreements expressly permit the disclosure of the
"tax treatment and tax structure" of the transaction. Therefore, notwithstanding
anything to the contrary herein or in any other document related to the
Transaction, each of the parties agree that the other may disclose all
information regarding the "tax treatment and tax structure" of the Transaction,
subject to such limitations on disclosure, if any, as are allowable under the
Tax Shelter Regulations without causing the transaction contemplated under this
Agreement to be treated as a reportable transaction. This clause shall apply to
all confidentiality agreements and clauses or confidentiality obligations
relating to this Transaction.
Asset Purchase Agreement 21 Execution Copy
Confidential.
9.4. COSTS. Each Party shall be responsible for the costs and expenses
incurred by it in the negotiation, execution and delivery of the Operative
Agreements and, except as otherwise provided elsewhere in such agreements, the
consummation of the transactions contemplated hereby and thereby.
9.5. DUE DILIGENCE. Buyer has engaged in the entire due diligence effort
it deemed appropriate prior to executing this Agreement. The sale of the
Transferred Assets is based solely upon the results of that due diligence and
there has been no reliance upon the representations or statements of Seller,
other than as set forth in Article VI.
9.6. BULK SALES. Buyer hereby waives compliance by Seller with any
applicable bulk sales or similar laws. Buyer shall discharge the Assumed
Liabilities in accordance with their terms and Buyer agrees that Seller shall
have no liability for any failure of Buyer to discharge the Assumed Liabilities
in accordance with their terms.
9.7. MODIFICATION AND WAIVER. No modification or waiver of any provision
of this Agreement and no consent by either Party to any departure therefrom
shall be effective unless in a writing referencing the particular section of
this Agreement to be modified or waived and signed by a duly authorized
signatory of each Party, and the same will only then be effective for the period
and on the conditions and for the specific instances and purposes specified in
such writing.
9.8. GOVERNING LAW. This Agreement has been delivered at and shall be
deemed to have been made in Westchester County, New York, and all matters
arising from or relating in any manner to the subject matter of this Agreement
or any other Operative Agreement shall be interpreted, and the rights and
liabilities of the Parties determined, in accordance with the laws of the State
of New York applicable to agreements executed, delivered and performed within
such State, without regard to the principles of conflicts of laws thereof. As
part of the consideration for value received, each of the Parties hereby
consents to the exclusive jurisdiction of any state or federal court located
within the county of Westchester in the State of New York with respect to all
matters arising from or relating in any manner to the subject matter of this
Agreement or any other Operative Agreement. With respect to all matters arising
from or relating in any manner to the subject matter of this Agreement or any
other Operative Agreement, each of the Parties hereby: (i) waives trial by jury,
(ii) waives any objection to New York venue of any action instituted hereunder,
and (iii) consents to the granting of such legal or equitable relief as is
deemed appropriate by any aforementioned court.
9.9. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given and shall be effective (a)
when delivered by messenger or courier, or (b) five days after deposit for
mailing by registered or certified mail, postage prepaid, return receipt
requested, when also transmitted by telecopy as follows:
(a) if to Seller, to:
International Business Machines Corporation
Asset Purchase Agreement 22 Execution Copy
Confidential.
Xxx Xxxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Vice President, Corporate Development
Telecopy: (000) 000-0000
with a copy at the same address to:
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telecopy: 000-000-0000
(b) if to Buyer, to:
Hifn, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000 - 7697
Attention: Xxxxxxx Xxxxxx, Chief Financial Officer
Telecopy: 000-000-0000
with a copy at the same address to:
Attention: Xxx Xxxxx, Contracts Administration
Telecopy: 000-000-0000
or to such Person or address as either of the Parties shall hereafter designate
to the other from time to time by similar written notice.
9.10. ASSIGNMENT. This Agreement shall be binding upon, and inure to the
benefit of, and be enforceable by, the successors and assigns of the Parties;
provided, that no Party may assign its rights hereunder without the written
consent of the other Party.
9.11. COUNTERPARTS. This Agreement may be executed by the Parties hereto
in one or more counterparts, each of which shall be an original and all of which
shall constitute one and the same instrument.
9.12. NO THIRD PARTY BENEFICIARIES. This Agreement is for the sole benefit
of the Parties and their permitted successors and assigns and nothing herein
expressed or implied shall give or be construed to give any Person, other than
the Parties and such permitted successors and assigns, any legal or equitable
rights hereunder.
9.13. ENTIRE AGREEMENT. This Agreement, together with the other Operative
Agreements, and the Confidentiality Agreement compose the entire agreement
between the Parties with respect to the subject matter hereof and thereof and
supersede all prior agreements, understandings and representations, oral or
written, between Buyer and Seller relating hereto or thereto.
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Confidential.
9.14. HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not limit or otherwise affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized signatories as of the date and year first above
written.
INTERNATIONAL BUSINESS
MACHINES CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: VP Corporate Development
HIFN, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
Asset Purchase Agreement 24 Execution Copy
Confidential.
