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EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "AGREEMENT") is entered into as of
December 10, 1999 among Symantec Corporation, a Delaware corporation, Symantec
Limited, an Irish corporation (collectively, "SYMANTEC"), and BEA Systems,
Inc., a Delaware corporation ("BEA") and WB Information Corporation
("ACQUISITION SUB," and together with BEA, "BUYER"). Although this Agreement is
entered into as of December 10, 1999, it is the intent of the parties that the
assets to be transferred and the liabilities to be assumed will have an
effective date as of the Closing anticipated to be December 31, 1999 (the
"EFFECTIVE DATE"), such that Buyer will have the benefits and obligations with
respect to such transferred assets and assumed liabilities from and after the
Effective Date.
RECITALS
A. Symantec is in the business of developing, marketing and distributing
certain software products known as the "Visual Cafe" product line as further
described in Exhibit A hereto (the "BUSINESS").
B. The parties intend that, subject to the terms and conditions
hereinafter set forth, Buyer will purchase from Symantec all its right, title
and interest in and to the Business, including the software programs existing
and under development, derivative works and related technical material and
assets used in the Business, as set forth below.
C. In exchange for the purchase of the assets comprising the Business,
Buyer will pay Symantec the Purchase Price (defined below).
AGREEMENT
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. PURCHASE AND SALE OF ASSETS
1.1 SALE AND ASSIGNMENT OF ASSETS. Subject to and on the terms and
conditions set forth in this Agreement, Buyer will purchase from Symantec and
Symantec will sell, assign, convey, transfer and deliver to Buyer the following
assets (collectively the "ASSETS"):
(a) All the right, title and interest of Symantec in and to all
software programs of Symantec pertaining directly and primarily to the
Business, including those described in Exhibit A-1 (the "PROGRAMS"), and in and
to all tools owned by Symantec to the extent that they pertain directly and
primarily to the Business, including those described in Exhibit A-2 (the
"TOOLS"), including, but not limited to, all source codes, computer software
programs, algorithms, specifications, encoding techniques, descriptions,
layouts, diagrams, reports, test and other data and programs, and all related
documentation and information, for the current versions of the Programs and the
Tools, including all source code, object code, marketing rights, patents,
patent rights,
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patent applications, copyrights, copyright registrations, copyright
applications, trademarks, trademark registrations, trademark applications,
trade secrets, rights of priority, technology, know-how, inventions, moral
rights, vendors lists, confidential and proprietary information related
thereto, including the right to secure renewals, reissuances and extensions of
the foregoing, and all Derivative Works prepared by or on behalf of Symantec
from any of the Programs or Tools. As used in this Agreement, "DERIVATIVE WORK"
includes any translation, adaptation, modification, extension, upgrade,
improvement, compilation, abridgment or other form in which any of the Programs
or Tools may be recast, transformed or adapted where such derivative work would
infringe any of the copyrights, including audio-visual copyrights, in any of
the Programs or Tools. Notwithstanding the foregoing, Symantec shall retain all
rights to, and the term "Assets" shall not include, the software programs
specifically described in Exhibit A-3, except to the extent such software
programs (the "LICENSED PROGRAMS") are licensed to Buyer pursuant to the
License Agreement between the parties entered into concurrently herewith (the
"LICENSE"). Symantec will also transfer to Buyer, to the extent available, on
an AS-IS basis, without warranty, all of the right, title and interest of
Symantec in and to all prior versions of the Programs, Tools and Derivative
Works, each of which is described in Exhibit A-4 (the "SUPERSEDED PROGRAMS").
(b) All right, title and interest of Symantec in and to all
software code under development or in use by Symantec on the date of this
Agreement to the extent such software code pertains directly and primarily to
the Business, including the software code described in Exhibit B (the
"DEVELOPMENTS"). The Programs, the Tools and the Developments are collectively
referred to herein as the "SOFTWARE PROGRAMS".
(c) All Intellectual Property Rights (as defined in Section
3.10 below) of Symantec, other than as specified in Section 1.1(c) of the
Symantec Exception Letter.
(d) All right, title and interest of Symantec in and to the
following:
(i) All licenses, obligations, contracts and other
agreements or commitments of Symantec pertaining directly and primarily to the
Business (all such licenses, contracts and other agreements are listed by
Symantec in Exhibit C hereto), excluding any licenses, obligations, contracts
or other agreements or commitments listed in Section 1.1 of the Symantec
Exception Letter (as defined below) or otherwise excluded by agreement of the
parties in writing prior to the Closing (as defined in Section 7 below). To the
extent that any license, obligation, contract or other agreement or commitment
pertaining directly and primarily to the Business that has not been disclosed
to Buyer is discovered after the Closing, Buyer will have the right to elect
whether or not to have such license, contract or other agreement or commitment
assigned to Buyer. The licenses, obligations, contracts and other agreements
and commitments to be assigned to Buyer hereunder are referred to herein as the
"CONTRACTS."
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(ii) The tangible assets used by Symantec in connection with
the Business to be transferred to Buyer, which are listed by Symantec in
reasonable detail in Exhibit D hereto (the "TANGIBLE ASSETS"). For purposes of
allocating the purchase price for the Assets, such tangible assets will be
valued at the net book value therefor as of the Closing.
(iii) All end-user licenses and associated rights to
"off-the-shelf" commercial software products used in connection with computer
and data processing equipment included in the tangible assets described in (ii)
above as set forth in Exhibit D, excluding any licenses, obligations, contracts
or other agreements or commitments listed in Section 1.1 of the Symantec
Exception Letter or otherwise excluded by agreement of the parties in writing
prior to the Closing.
(iv) All domain names, URLs, web site contents, and phone
numbers owned by Symantec pertaining directly and primarily to the Business.
Each such domain name, URL, web site content, and phone number is set forth in
Section 1.1(d) of the Symantec Exception Letter.
(e) Accurate and complete copies of Symantec's books and records, or
any part thereof, pertaining directly and primarily to the Business, including
but not limited to:
(i) marketing and sales information, pricing, marketing
plans, business plans, financial and business projections;
(ii) correspondence, production records, employment records;
(iii) contracts with vendors, distributors, resellers,
customers and other parties; and
(iv) any confidential information which has been reduced to
writing, and other files and records (the "BUSINESS RECORDS"). Notwithstanding
the foregoing, the parties agree that Symantec may retain the originals of all
Business Records, provided that in the event that such originals are needed for
Buyer's operation of the Business after the Closing, the Symantec will cooperate
in providing Buyer access thereto.
(f) The right to enforce confidentiality, non-disclosure, employee
invention and other proprietary rights agreements between Symantec and third
parties, employees, consultants and contractors with respect to the Software
Programs and the Intellectual Property Rights.
(g) All prepaid items (including, but not limited, to those
described in Section 1.1(g) of the Symantec Exception Letter), deposits and
other similar assets of Symantec resulting from the Business and associated with
obligations to be
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assumed by Buyer existing on the Closing Date (the prepaid items, deposits and
other similar items to be conveyed to Buyer pursuant hereto are hereinafter
collectively referred to as the "PREPAID ITEMS").
(h) Except as specifically provided in Section 1.2 of the
Symantec Exception Letter, all other intangible assets pertaining directly and
primarily to the Business.
1.2 EXCLUDED ASSETS. Those assets of Symantec related to the
Business and listed in Section 1.2 of the Symantec Exception Letter will be
retained by Symantec, will not be included in the term "Assets" and will not be
sold and transferred to Buyer (the "EXCLUDED ASSETS").
1.3 CONVEYANCE OF ASSETS. From and after the Closing, Symantec will
not retain any further right in or to the Assets. Symantec hereby represents to
Buyer that it owns, and it will convey to Buyer at the Closing, the Assets free
and clear of any and all restrictions, except as set forth above in Section 1.1
of the Symantec Exception Letter, and free and clear of any and all
liabilities, obligations, liens or encumbrances. The Assets will be delivered
to Buyer at their current locations; intangible assets will be deemed delivered
at Symantec's principal place of business.
1.4 ASSUMPTION OF LIABILITIES. Buyer will assume, effective on the
Closing, only those liabilities and obligations of Symantec which pertain
directly and primarily the conduct of the Business and which are (a) entered
into or incurred by Buyer from and after the Effective Date, (b) under those
Contracts transferred to Buyer pursuant to Section 1.1(d)(i) which are validly
assigned to Buyer, (c) that are listed in Section 1.4 of the Symantec Exception
Letter, (d) that constitute taxes and charges to be paid by Buyer pursuant to
Section 7.2, (e) that arise under any Employee Plan (as defined in Section
3.13(c) and that has been disclosed to Buyer in writing), (f) that constitute
warranty claims or service claims arising from and after the Effective Date
which are based on warranties or service commitments disclosed by Symantec to
Buyer pursuant to the Symantec Exception Letter, or (g) which are Retention
Bonuses (as defined in Section 2.1 below). Buyer will not assume any
liabilities or obligations of Symantec of any nature whatsoever, except as
expressly provided in the first sentence of this Section 1.4, whether now
existing or hereafter arising, including those (i) arising under ERISA (as
defined in Section 3.13(c) below), or (ii) except as set forth in this Section
1.4, arising under any claim existing, accrued or accruing, contingent or
otherwise, before the Closing.
2. PAYMENT FOR PURCHASE AND SALE OF ASSETS
2.1 AGGREGATE PURCHASE PRICE. The aggregate purchase price to be
paid to Symantec by Buyer for the Assets shall be (i) Seventy-Five Million
Dollars ($75,000,000.00) less (ii) fifty percent (50%) of the amount of
retention bonuses listed in Section 2.1 of the Symantec Exception Letter or
Three Hundred Fifty Thousand Dollars
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($350,000) whichever is less (the "RETENTION BONUSES"), payable in cash or by
wire transfer ("PURCHASE PRICE").
2.2 PAYMENT AT CLOSING. The Purchase Price shall be paid to Symantec
by Buyer at the Closing.
3. REPRESENTATIONS AND WARRANTIES OF SYMANTEC
Symantec hereby represents and warrants, except as set forth in the
exception letter, delivered by Symantec to Buyer (the "SYMANTEC EXCEPTION
LETTER") herewith (including, without limitation, the section and subsections
of the Symantec Exception Letter referred to below in this Article 3) as set
forth below. The designation of an item in the Symantec Exception Letter as an
exception to any section or subsection of this Agreement shall not cause such
item to be an exception to any other applicable section or subsection unless it
is evident from the language of the exception itself (as distinguished from the
content of any documents listed in the Symantec Exception Letter) that such
exception would be applicable to another section or subsection of this
Agreement.
3.1 ORGANIZATION AND GOOD STANDING. Symantec is a corporation
duly organized, validly existing and in good standing under the laws of
Delaware. Symantec Limited is a corporation duly organized and validly existing
and in good standing under the laws of the Republic of Ireland. Symantec is
qualified as a foreign corporation in each jurisdiction where the Business is
conducted, except where failure to obtain such qualification would not have a
material adverse affect on the Business.
3.2 POWER, AUTHORITY AND VALIDITY.
(a) Symantec has the corporate right, power and authority
to enter into and perform its obligations under this Agreement. The execution,
delivery and performance of this Agreement by Symantec have been duly and
validly approved by the Board of Directors of Symantec. No vote of the holders
of Symantec's capital stock is required for Symantec to enter into and perform
its obligations under this Agreement.
(b) Except as set forth in Section 3.2(b) of the Symantec
Exception Letter, no filing, authorization or approval, governmental or
otherwise, is necessary to enable Symantec to enter into, and to perform its
obligations under, this Agreement, except for consents required under the
Contracts or other agreements, instruments or commitments disclosed in Section
3.3 of the Symantec Exception Letter as exceptions to the representation made
in the last sentence of Section 3.3, and except for filings (the "HSR FILINGS")
as may be required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976 and the rules and regulations thereunder (the "HSR ACT").
(c) This Agreement constitutes the valid and binding
obligations of Symantec enforceable against it in accordance with its terms,
except as to the effect, if any, of (a) applicable bankruptcy, insolvency and
other similar laws
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affecting the rights of creditors generally and (b) the effect of general
principles of equity, including rules of law governing specific performance,
injunctive relief and other equitable remedies.
3.3 NO VIOLATION. Except as set forth on Section 3.3 of the
Symantec Exception Letter, neither the execution and delivery of this Agreement
nor the consummation of the transactions provided for herein, will conflict
with, or (with or without notice or lapse of time, or both) result in a
termination, breach, impairment or violation of, (a) any provision of the
charter documents of Symantec as currently in effect, (b) in any material
respect, any Contract or any other agreement, instrument or commitment
pertaining directly and primarily to the Business to which Symantec is a party
or by which it is bound or (c) any federal, state, local or foreign judgment,
writ, decree, order, statute, rule or regulation applicable to Symantec. The
consummation of this Agreement and Buyer's acquisition of the Assets and
exercise of the rights hereunder in and of themselves will not (x) result in
the creation of any lien upon the Assets, (y) require the consent of any third
party or (z) have a material adverse effect upon any such Assets or the
exercise of any such rights. Except as set forth in Section 3.3 of the Symantec
Exception Letter, Symantec is not a party to, or otherwise subject to any
provision contained in any instrument or agreement which restricts or otherwise
limits either Symantec's rights to transfer the Assets or will restrict Buyer's
use thereof after transfer to Buyer.
3.4 LITIGATION. Except as set forth in Section 3.4 of the
Symantec Exception Letter, there is no action, proceeding or investigation
pending or threatened in writing against Symantec before any court or
administrative agency that, if determined adversely to Symantec, would have a
material adverse effect on (a) the present or future value of the Assets, (b)
the transfer of any of the Assets to Buyer under this Agreement or (c) the
ownership or use, in any respect, of any of the Assets by Symantec or Buyer.
There is no valid basis for any person, firm, corporation or entity to assert a
claim against Symantec, or against Buyer as successor in interest to Symantec,
based upon ownership or rights to ownership of any of the Assets.
3.5 SYMANTEC FINANCIAL INFORMATION. True and complete copies of
certain financial data statements for the Business, as listed in Section 3.5 of
the Symantec Exception Letter, have been delivered by Symantec to Buyer
(collectively, the "SYMANTEC FINANCIAL STATEMENTS"). The Symantec Financial
Statements: (1) are in accordance with the books and records of Symantec, and
(2) present fairly in all material respects the financial data and revenue
summary disclosed therein for the periods indicated in such statements.
Symantec makes no representations whatsoever regarding any projections, pro
forma information or forward-looking information that may have been shared with
Buyer. Except as set forth in Schedule 3.5, Symantec has no debt, liability or
obligation of any nature, whether accrued, absolute, contingent or otherwise,
and whether due or to become due, secured by the Assets.
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3.6 TAXES. Symantec has filed all federal, state, local and
foreign tax and information returns related to the Business or any of the Assets
that are required to be filed, and Symantec has paid all taxes required to be
paid in respect of all periods for which such returns have been filed. With
respect to the Business, Symantec is not delinquent in the payment of any tax or
in the filing of any tax returns, and no deficiencies for any tax have been
threatened, claimed, proposed or assessed which have not been settled or paid.
For purposes of this Section 3.6, the terms "tax" and "taxes" include all
federal, state, local and foreign income, gains, franchise, excise, property,
sales, use, employment, license, payroll, occupation, recording, value added or
transfer taxes, governmental charges, fees, levies or assessments (whether
payable directly or by withholding), and, with respect to such taxes, any
estimated tax, interest and penalties or additions to tax and interest on such
penalties and additions to tax.
3.7 NO PRODUCT OR SERVICE WARRANTY CLAIMS. Except for service and
warranty claims pursuant to contract and warranties disclosed in Section 3.7 of
the Symantec Exception Letter, neither Symantec nor any of the Software
Programs or any other Asset is the subject of any pending or threatened claim
for breach of warranty or product liability and there is no valid basis for any
such claim or action. Except as set forth in Section 3.7 of the Symantec
Exception Letter, there are no contracts for maintenance, bug fix, development
or warranty obligations related to the Assets, other than warranties provided
in connection with Symantec's standard shrink-wrap end user license agreement
and support agreements, which support agreements are listed in Section 3.7 of
the Symantec Exception Letter.
3.8 ABSENCE OF CERTAIN CHANGES. Since October 31, 1999, except as
set forth in Section 3.8 of the Symantec Exception Letter, there has not been
with respect to Symantec:
(a) any change in the financial condition, properties,
assets, liabilities, business or operations which change by itself or in
conjunction with all other such changes, whether or not arising in the ordinary
course of business, has had or could reasonably be expected to have a material
adverse effect on the Business or the ownership or use of any of the Assets;
(b) any mortgage, encumbrance or lien placed on any of the
Assets;
(c) any material obligation or liability incurred by
Symantec with respect to the Business or any of the Assets;
(d) any purchase or sale or other disposition, or any
agreement or other arrangement for the purchase, sale or other disposition, of
any of the Assets or related to the operation of the Business, other than sales
of licenses of the Software Programs in the ordinary course of business,
consistent with past practice, for an amount, with respect to each such sale,
of less than $50,000;
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(e) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the Assets or the Business;
(f) with respect to the Business, any change in the compensation
payable or to become payable to the Business Employees, as defined in Section
3.12(e) below; or any bonus payment or arrangement made to or with any of such
Business Employees;
(g) any payment or discharge of a material lien or liability thereof
related to the Business or any of the Assets, which lien or liability was not
incurred in the ordinary course of business, consistent with past practices; or
(h) any obligation or liability incurred, or loan or advance made,
by Symantec to any of the Business Employees, except normal compensation and
expense allowances in accordance with past practice.
3.9 CONTRACTS; TANGIBLE ASSETS.
(a) Exhibit C includes a true and complete list and summary of all
licenses, instruments, obligations, contracts and other agreements or
commitments of Symantec pertaining directly and primarily to the Business or any
of the Assets, including all licenses, instruments, obligations, contracts and
other agreements or commitments whereby Symantec has acquired ownership or
license rights to software code or Intellectual Property Rights used or to be
used in any Software Programs or the development thereof or has granted to third
parties any license rights to any Software Programs, any Assets or any
Intellectual Property Rights. Symantec has provided to Buyer true and complete
copies of such licenses, instruments, obligations, contracts and other
agreements or commitments. All licenses, instruments, obligations, contracts and
other agreements or commitments listed in Exhibit C(i) are valid, binding,
enforceable and in full force and effect except as to the effect, if any, of (A)
applicable bankruptcy, insolvency and other similar laws affecting the rights of
creditors generally and (B) the effect of general principles of equity,
including rules of law governing specific performance, injunctive relief and
other equitable remedies and (ii) will continue to be so on identical terms to
Buyer's benefit immediately following the Closing and all consents or
permissions needed to assign any such license, sublicense, contract, agreement
or permission has been obtained or will be obtained prior to the Closing, except
as indicated in Section 3.9(a) of the Symantec Exception Letter. Except as
indicated on Section 3.9(a) of the Symantec Exception Letter, Symantec is not
(or, but for the passage of time, would not be) in breach of or default under
any material term of any agreement, obligation, contracts or commitment listed
on Exhibit C. No penalty or additional payment is required in connection with
the sale, assignment or other transfer of any of the Contracts, the Assets or
other items to Buyer pursuant to this Agreement.
(b) Exhibit D contains an accurate and complete list of the computer
clients used primarily by employees of the Business and computer servers used
primarily in the operation of the Business. Symantec owns all of the Tangible
Assets,
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free and clear of all liens, mortgages, charges or encumbrances (other than for
taxes not yet due and payable).
3.10 INTELLECTUAL PROPERTY. As used herein the term "INTELLECTUAL
PROPERTY RIGHTS" means, collectively, all of the following worldwide intangible
legal rights pertaining directly and primarily to the Business, including those
existing or acquired by ownership, license (but only to the extent such license
is the effective equivalent of ownership) or other legal operation, whether or
not filed, perfected, registered or recorded, existing as of the Closing Date
(as defined in Section 7 below) in or to: (i) all patents, patent applications,
patent disclosures and related patent rights, including any and all
continuations, divisions, reissues, reexaminations, or extensions thereof which
have been filed, issued or acquired by Symantec as of the Closing Date, and all
inventions conceived of or reduced to practice as of the Closing Date (the
"PATENT RIGHTS"); (ii) all copyrights, whether or not registered, owned by
Symantec as of the Closing Date, including all registrations and applications
therefor and all moral rights relating thereto (the "COPYRIGHT RIGHTS"); (iii)
all trademarks, trade names and service marks, whether or not registered,
including all registrations and applications therefor (the "TRADEMARK RIGHTS");
(iv) all trade secrets and know-how; (v) all technology and other intellectual
and proprietary rights; (vi) all rights relating to the protection of the
foregoing; and (vii) all rights to xxx or make any claims for any past, present
or future infringement, misappropriation or unauthorized use of the any of the
foregoing rights and the right to all income, royalties, damages and other
payments that are now or may hereafter become due or payable with respect to
any of the foregoing rights, including damages for past, present or future
infringement, misappropriate or unauthorized use thereof.
(a) Section 3.10 of the Symantec Exception Letter contains a
complete and accurate list of Symantec's Patent Rights, registered Copyright
Rights and Trademark Rights pertaining directly and primarily to the Business.
Symantec has provided Buyer with copies of all such registrations and
applications and any licenses granted or received with respect thereto.
Symantec is the sole and exclusive owner of or has the exclusive right to use
pursuant to license, sublicense, agreement or other valid permission, all
Intellectual Property Rights necessary for the operation of the Business as
presently conducted (the present conduct of the Business includes, without
limitation, all Software Programs currently under development, whether or not
they are currently being marketed by Symantec). Symantec owns and has good
title to all of the Software Programs and all of the Intellectual Property
Rights, free and clear of all liens, charges, claims or encumbrances (other
than for taxes not yet due and payable).
(b) The Assets, together with the rights granted to Buyer under
the License, include all assets, and intellectual property and proprietary
rights necessary to enable Buyer to continue to develop the Developments and to
manufacture (except that no manufacturing assets are included, other than
intellectual property and proprietary rights), market, distribute, use, license
and sell the Software Programs and to otherwise conduct the Business in the
manner in which the Business is conducted by Symantec as
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of this date and as it is presently proposed to be conducted by Symantec, and
such Assets will be owned or available for use by Buyer immediately following
the Closing in the same manner and on the same terms and conditions enjoyed by
Symantec prior to the Closing.
(c) Symantec has taken all reasonable measures to protect the
Intellectual Property Rights. Symantec has no knowledge of any infringement of
any of the Intellectual Property Rights by any third party or any instance in
which any such measures to protect any of the Intellectual Property Rights have
not been taken or have failed in any material respect. There has not been any
material loss, cancellation, termination or expiration of any such Intellectual
Property Rights. All fees to maintain Symantec's registered rights in the
Intellectual Property Rights that are due on or before the Closing Date,
including registration, maintenance and prosecution fees, and all professional
fees incurred in connection therewith, have been paid.
(d) Symantec has delivered to Buyer the standard form of
agreement entered into by its present and past employees, consultants and
independent contractors with respect to the Intellectual Property Rights and
protection of confidential information related to the Business. All present and
past employees, consultants and independent contractors have entered into
agreements in substantially such form. Symantec is not using in the conduct of
the Business any confidential information or trade secrets of any former
employer of any of its past or present employees, consultants or independent
contractors.
(e) The Business, as conducted on the date hereof, does not,
and the Business to be conducted by Symantec prior to the Closing will not, and
the manufacture, marketing, licensing, sale or other use of Software Programs
and all other Assets, as they exist on the Closing Date, do not and will not,
cause Symantec or Buyer to infringe, violate or misappropriate any patents,
trademarks, service marks, trade names, copyrights, trade secrets, proprietary
rights or other intellectual property of any other person or entity. Symantec
has not received any written or oral claim or notice of infringement or
potential infringement of the intellectual property or proprietary rights of
any other person or entity.
(f) To Symantec's best knowledge, no third party has interfered
with, infringed upon, misappropriated, or otherwise come into conflict with any
of the Intellectual Property Rights. None of the Intellectual Property Rights
is registered in the name of anyone other than Symantec and no one other than
Symantec has any interest therein or right thereto, including the right to
royalty or other payments.
(g) Except as set forth in Section 3.4 of the Symantec
Exception Letter, no Contracts or other agreements of Symantec restrict
Symantec's or Buyer's ability to operate the Business in any jurisdiction or
with respect to any market or industry.
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(h) Except as indicated in Section 3.10 of the Symantec Exception
Letter, Symantec is not obligated to pay any royalties or other payments or
compensation to any third parties, employees, consultants, contractors,
officers, directors, stockholders or others with respect to the Assets or the
Intellectual Property Rights.
(i) Symantec has made a full, complete and accurate disclosure to
Buyer regarding the state of development of the Development and the Software
Programs, including access to the database of all known bugs and deficiencies
and their current status of resolution.
(j) For the longer of 13 months from the date of this Agreement or
the useful life of the Software Programs, all of the Software Programs will
perform (including but not limited to the processing of data) in the same
manner during and after the year 2000 as they do before the year 2000, without
the need to modify or alter any of them in any respect, provided that the
foregoing in no event will extend to any affect that non-year 2000 compliant
third party hardware, software or data will have on such performance.
(k) No governmental or third party funding, grants or resources were
utilized in connection with designing, developing, or manufacturing the
Software Programs or the Developments or otherwise in conducting the Business
and no governmental entity has any rights in or to any of the Assets or the
Intellectual Property Rights.
3.11 SUPPLIERS AND CUSTOMERS. To Symantec's actual knowledge, except as
set forth on Section 3.4 of the Symantec Exception Letter, (a) with respect to
the Assets and the Business, Symantec has good commercial working relationships
with its suppliers and since January 1, 1999 no supplier accounting for two
percent (2%) or more of Symantec's purchases of supplies has canceled or
otherwise terminated its relationship with Symantec, decreased or limited
materially its materials supplied to Symantec from any corresponding period or,
to Symantec's best knowledge, threatened to take any such action, and (b)
with respect to the Assets and the Business, no customer of Symantec has
threatened to cancel its agreement with Symantec or to bring an action or claim
against Symantec.
3.12 COMPLIANCE WITH LAWS. Except as set forth on Section 3.4 of the
Symantec Exception Letter, with respect to the operation of the Business,
Symantec has complied, and will be at the Closing Date, in compliance, in all
respects material to the Business or any of the Assets, with all applicable
laws, ordinances, regulations and rules, and all orders, writs, injunctions,
awards, judgments and decrees, applicable to the Business or any of the Assets,
including: (a) all applicable federal, state and local laws, ordinances and
regulations, and all orders, writs, injunctions, awards, judgments and decrees,
and (b) the U.S. Export Administration Act and regulations promulgated
thereunder or other laws, regulations, rules, orders, writs, injunctions,
judgments or decrees applicable to the export or re-export of any of the
Assets. Symantec has received
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all permits and approvals from, and has made all filing with, third parties,
including government agencies and authorities, that are necessary to the
conduct of the Business as presently conducted and as presently proposed by
Symantec to be conducted.
3.3 EMPLOYEES.
(a) Except as set forth in Section 3.13(a) of the Symantec
Exception Letter, Symantec has no employment contract or material consulting
agreement with any person engaged in any respect in the Business that is
currently in effect and is not terminable at will upon thirty (30) days or less
notice (other than agreements with the sole purpose of providing for the
confidentiality of proprietary information or assignment of inventions).
(b) With respect to the Business, Symantec has never been
and is not now (a) subject to a union organizing effort, (b) subject to any
collective bargaining agreement with respect to any of its employees employed
in the Business, (c) subject to any other contract, written or oral, with any
trade or labor union, employees' association or similar organization or (d) a
party to any material current labor dispute. Symantec has good labor relations
with respect to the Business. Symantec has no knowledge that any Business
Employee intends to leave Symantec's employ (other than to become a Buyer
employee pursuant to offers made by Buyer to selected employees of Symantec
engaged in the Business).
(c) Section 3.13(c) of the Symantec Exception Letter
contains a list of all pension, retirement, disability, medical, dental or
other health plans, life insurance or other death benefit plans, profit
sharing, deferred compensation agreements, stock, option, bonus or other
incentive plans, vacation, sick, holiday or other paid leave plans, severance
plans or other similar employee benefit plans maintained by Symantec with
respect to Business Employees (as defined below) (the "EMPLOYEE PLANS"). To the
extent requested by Buyer, Symantec has delivered true and complete copies of
all the Employee Plans to Buyer or Buyer's counsel. No liability with respect
to the Employee Plans will pass to Buyer under the laws of the United States or
other applicable laws by virtue of Buyer consummating the transactions
contemplated by this Agreement.
(d) No Business Employee is, to the best knowledge of
Symantec, in material violation of (a) any term of any employment contract,
patent disclosure agreement or noncompetition agreement or (b) any other
contract or agreement, or any restrictive covenant, relating to the rights of
any such employee to be employed by Symantec or to use trade secrets of
proprietary information of others.
(e) Section 3.13(e) of the Symantec Exception Letter
contains a list of all employees, consultants and contractors of Symantec who
are, or were at any time during the 6 month period prior to the date of this
Agreement, engaged directly and primarily of the Business or who have
materially contributed to the development of the Software Programs (the
"BUSINESS EMPLOYEES"). Symantec has separately delivered to Buyer information
relating to the current compensation (salary and any bonus or other
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special compensation arrangements), title and responsibilities of the Business
Employees as of the date of this Agreement. Symantec has made no representation
to any director, officer, employee, consultant or independent contractor
regarding future employment by Buyer.
3.14 DOCUMENTS. Symantec has made available to Buyer for
examination all documents and information listed or identified in the exhibits
or schedules to this Agreement or the Symantec Exception Letter, or otherwise
called for by this Agreement.
3.15 BOOKS AND RECORDS. The books, records and accounts of Symantec
which relate to the Business and Assets (a) are in all material respects true
and complete, (b) have been maintained in accordance with good business
practices, (c) are stated in reasonable detail (in the context of Symantec's
business) and accurately and fairly reflect the financial data and cash flows
of or related to the Business or the Assets, as the case may be, and (d) in all
material respects accurately and fairly reflect the basis for the Symantec
Financial Statements.
3.16 NO BROKERS. Except as disclosed in Section 3.16 of the
Symantec Exception Letter, Symantec is not obligated for the payment of fees or
expenses of any investment banker, Broker or finder in connection with the
negotiation, execution, delivery or performance of this Agreement or in
connection with any transaction provided for herein or therein.
3.17 INSURANCE. Symantec has provided to Buyer a summary of
Symantec's insurance policies and coverages in effect applicable to the Assets
and the Business.
3.18 GOVERNMENT CONTRACTS. Symantec has no knowledge of any acts,
omissions or noncompliance with regard to any applicable public contracting
statute, regulation or contract requirement (whether express or incorporated by
reference) relating to any of the Contracts, the Business or any of the Assets
with any Government Contract Party (as defined below) in either case that have
led to or could lead to, either before or after the Closing Date, (a) any claim
or dispute involving Symantec, the Business or any of the Assets (and/or Buyer
as successor in interest to the Assets) and any Government Contract Party or
(b) any suspension, debarment or contract termination, or proceeding related
thereto. Symantec has no knowledge of any act or omission related to the
marketing, licensing or selling to any Government Contract Party of any of
Symantec technical data or computer software, the Business or any of the Assets
and that has led to or could lead to, either before or after the Closing Date,
any material cloud on any of Symantec's rights in and to any of the Assets. For
purposes of this Section 3.18, the term "GOVERNMENT CONTRACT PARTY" means any
independent or executive agency, division, subdivision, audit group or
procuring office of the United States, or any other federal government,
including any prime contractor of the federal government and any higher
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level subcontractor of a prime contractor of the federal government, and
including any employees or agents thereof, in each case acting in such capacity.
3.19 ENVIRONMENTAL MATTERS.
(a) Symantec is conducting, and at all times has conducted, the
Business and its operations at the facilities or sites at which the Business is
now or has previously been conducted by Symantec or any of its
predecessors-in-interest (collectively, the "FACILITIES"), in accordance with
and in material compliance with all Environmental Laws (as hereinafter
defined). "ENVIRONMENTAL LAWS" means all United States, and other federal,
state, and local laws and regulations relating to pollution, the protection of
human health or the environment (including ambient air, surface water, ground
water, land surface or subsurface strata), including laws and regulations
relating to emissions, discharges, releases or threatened releases of Hazardous
Materials, or otherwise relating to the manufacture, processing, distribution,
use, treatment, disposal, transport or handling of Hazardous Materials (as
defined below) or relating to occupational health and safety.
(b) For the purposes of this Section 3.19, the term "HAZARDOUS
MATERIALS" means any hazardous or toxic substance, material or waste which is
or becomes prior to the Closing Date regulated under, or defined as a
"hazardous substance," "pollutant," "contaminant," "toxic chemical," "hazardous
material," "toxic substance" or "hazardous chemical" under the Environmental
Laws or any other laws applicable to the Business or the Assets.
(c) During the period that Symantec has owned or leased the
Facilities, there have been no disposals, releases or threatened releases of
Hazardous Materials from or any presence thereof on such premises which would
have a material adverse effect upon the Business, the Assets or the Symantec
Financial Statements. Symantec has no knowledge of any presence, disposals,
releases or threatened releases of Hazardous Materials on or from any of the
Facilities (including any that may have occurred prior to Symantec having taken
possession of any of such premises).
(d) There are no outstanding orders, injunctions or decrees
against Symantec, nor are there any pending or threatened investigations of any
kind against Symantec, concerning any Environmental Laws and there has been no
litigation, proceeding or administrative action brought or threatened in
writing against Symantec, or any settlement reached by Symantec with, any party
or parties alleging the presence, disposal, release or threatened release of
any Hazardous Materials on, from or under any of the facilities which could
have a material adverse effect on the Business or the Assets.
3.20 DISCLOSURE. This Agreement, its exhibits and schedules, and any
of the certificates or documents to be delivered by Symantec to Buyer under
this Agreement, taken together, (a) contain, and as of the Closing will
contain, no untrue statement of a material fact or (b) omit, and as of the
Closing will omit, to state no
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material fact necessary in order to make the statements contained herein and
therein, in light of the circumstances under which such statements were made,
not misleading.
3.21 SOLVENCY. Symantec is solvent and neither intends or expects to
file or seek relief under bankruptcy, insolvency, creditors' relief or similar
laws.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants that, except as set forth on the
exception letter delivered by Buyer to Symantec (the "BUYER EXCEPTION LETTER")
herewith and referred to below in this Article 4:
4.1 ORGANIZATION IN GOOD STANDING. Each of BEA and Acquisition Sub is
a corporation duly organized and validly existing and in good standing under the
laws of the State of Delaware, and has the corporate power and authority to own,
operate and lease its properties and to carry on its business as now conducted.
No vote of the holders of capital stock of BEA or Acquisition Sub is required to
enter into and perform its obligations under this Agreement.
4.2 POWER, AUTHORIZATION AND VALIDITY.
(a) Each of BEA and Acquisition Sub has the corporate right,
power and authority to enter into and perform its obligations under this
Agreement. The execution, delivery and performance of this Agreement have been
duly and validly approved by the Board of Directors of each of BEA and
Acquisition Sub, and such approval, constitutes the only corporate action
required to authorize the execution, delivery and performance by each of BEA
and Acquisition Sub of this Agreement.
(b) No filing, authorization or approval, governmental or
otherwise, is necessary to enable Buyer to enter into, and to perform its
obligations under, this Agreement, except for such filings as may be required
to comply with the laws of Delaware and except for the HSR Filings.
(c) This Agreement constitutes the valid and binding obligation
of each of BEA and Acquisition Sub, enforceable against BEA and Acquisition Sub
in accordance with its terms, except as to the effect, of any, of (a) applicable
bankruptcy, insolvency and other similar laws, affecting the rights of creditors
generally and (b) the effect of general principles of equity, including rules of
law governing specific performance, injunctive relief and other equitable
remedies.
4.3 NO VIOLATION. Neither execution and delivery of this Agreement
nor the consummation of any of the transactions provided for herein, will
conflict with, or (with or without notice or lapse of time, or both) result in a
termination, breach, impairment or violation of, (a) any provision of the
charter documents of either BEA or Acquisition Sub, as currently in effect or
(b) any federal, state, local or foreign judgment, writ, decree, order, statute,
rule or regulation applicable to either BEA or Acquisition
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Sub. Neither BEA nor Acquisition Sub are a party to, or otherwise subject to
any provision contained in, any instrument or agreement which prohibits either
from entering into this Agreement or consummating the transactions contemplated
hereby.
5. SYMANTEC PRECLOSING COVENANTS
The following covenants and conditions will apply during the period
from the date of this Agreement until the Closing.
5.1 ADVICE OF CHANGES. Symantec will promptly advise Buyer in
writing (a) of any event occurring subsequent to the date of this Agreement
which would render any representation or warranty of Symantec contained in this
Agreement, if made on or as of the date of such event or the Closing Date, to
be untrue or inaccurate in any material respect, and (b) of any material
adverse change in the Assets or the Business.
5.2 OPERATION OF BUSINESS. Commencing upon execution of this
Agreement, Symantec shall operate the Business in the ordinary course,
consistent with past practices. If Symantec becomes aware of a material
deterioration in the relationship with any material customer or supplier of the
Business, it will promptly bring such information to the attention of Buyer in
writing and, if requested by Buyer, will exert reasonable efforts to restore
the relationship. Symantec will provide Buyer with current access to all books,
records and information, or parts thereof, pertaining directly and primarily to
the Assets and/or the operation of the Business.
5.3 CONDUCT OF BUSINESS. Except as provided otherwise herein or as
approved or as recommended by Buyer, Symantec, with respect to the Assets and
the Business, will not, without the prior written consent of Buyer:
(a) borrow any money secured by any interest in any of the
Assets;
(b) enter into any transaction regarding the Business or any
of the Assets not in the ordinary course of business or enter into any
transaction or capital expenditure (or make any commitment to such) regarding
the Business or any of the Assets that involves an expense in excess of $50,000
whether or not in the ordinary course of business;
(c) encumber or permit to be encumbered any of the Assets;
(d) sell, license, transfer, assign, convey, encumber, or
otherwise dispose of any of the Assets or any rights thereto, other than (i)
the sale of licenses of Software Programs in the ordinary course of business,
consistent with past practice, for an amount, with respect to each such sale,
of less than $50,000, and (ii) sales and licenses under Symantec's "value
program";
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(e) take any action to encourage a customer to purchase
software programs under Symantec's "value program", other than keeping such
program in place without taking action to accelerate purchases under such
program;
(f) enter into any material lease or contract for the purchase
or sale of any property, real or personal, tangible or intangible, used in
connection with the Business or any of the Assets;
(g) except as previously disclosed to Buyer in writing in
Section 3.8(f) of the Symantec Exception Letter, pay any bonus, royalty,
increased salary or special remuneration (except pursuant to existing
arrangements heretofore disclosed in writing to Buyer) to any Business Employee
or enter into any new employment or consulting agreement with any Business
Employee, or enter into any new agreement or plan of the type described in
Section 3.13(c) with respect to any Business Employee;
(h) amend or terminate any Contract or other agreement or
license pertaining directly and primarily to the Business to which it is a
party (except pursuant to arrangements previously disclosed in writing to
Buyer) except for any change to any Contract, agreement or license which has no
adverse effect on the Business or any of the Assets;
(i) lend any amount to any Business Employee other than
advances for travel and expenses which are incurred in the ordinary course of
business consistent with past practice, not material in amount, which travel
and expenses shall be documented by receipts for the claimed amounts;
(j) waive or release any material right or claim with respect
to the Business or any of the Assets;
(k) amend its charter documents, to the extent such action will
adversely affect the Business or the Assets;
(l) license any Intellectual Property Rights or any rights
thereto, except in the ordinary course of business, consistent with past
practice;
(m) enter into any other agreements or commitments affecting
any of the Assets, other than agreements or commitments relating to
manufacturing, sales or other similar matters entered into in the ordinary
course of business, consistent with past practice;
(n) hire any new Business Employee or terminate the employment
of any existing Business Employee without notice of the same to Buyer or
encourage any Business Employee to accept employment with any third party
(other than Buyer with respect to those employees who are offered employment by
Buyer);
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(o) effect a material change in any insurance coverage with
respect to the Business or any of the Assets, or
(p) agree or otherwise commit or create any obligation to do
any of the things described in the preceding clauses 5.3(a) through 5.3(q).
5.4 EMPLOYEE OFFERS. Symantec hereby consents to Buyer extending
offers of employment to all or any lesser number of Business Employees, such
offers (i) to include (a) comparable salary, seniority, and job title terms as
the Business Employees currently have with Symantec and (b) comparable benefits
to those offered to similarly situated employees of BEA, and (ii) to be
contingent upon the Closing. To facilitate such process, Symantec will
cooperate with Buyer in identifying those Business Employees that Buyer may
wish to hire and will provide Buyer with reasonable access to and the
opportunity to meet and interview any Business Employee for the purpose of
negotiating offers of employment contingent upon the Closing. Symantec will use
its reasonable efforts to retain Business Employees as employees through the
Closing Date and assist Buyer in securing the employment, commencing on the
Closing Date, of those Business Employees to whom Buyer (or an affiliate
designated by Buyer) makes offers of employment. Symantec hereby waives, with
respect to the employment by Buyer of such Business Employees who accept offers
of employment from Buyer, any claims or rights Symantec may have against Buyer
with respect to such offer of employment. Symantec understands and
acknowledges that any such Business Employees hired by Buyer shall be treated
as "new hires" and Buyer's sole obligation to Symantec or such Business
Employees shall be as set forth in the Transition Agreement (as defined below).
5.5 REGULATORY APPROVALS. Symantec will execute and file, or assist
in the execution and filing, of any application or other document that may be
necessary in order to obtain the authorization, approval or consent of any
governmental body, federal, state, local or foreign which may be reasonably
required under the laws of the United States or otherwise, or which Buyer may
reasonably request, in connection with the consummation of the transactions
provided for in this Agreement. Symantec will use reasonable efforts to obtain
or assist Buyer in obtaining all such authorizations, approvals and consents,
and Buyer agrees to pay the reasonable costs for the same. Without limiting the
generality of the foregoing, Symantec and Buyer shall, promptly after the date
of this Agreement, prepare and file the notifications required under the HSR Act
in connection with the transactions contemplated by this Agreement. Symantec and
Buyer shall respond as promptly as practicable to (i) any inquiries or requests
received from the Federal Trade Commission or the Department of Justice for
additional information or documentation and (ii) any inquiries or requests
received from any state attorney general or other governmental body in
connection with antitrust or related matters. Each of Symantec and Buyer shall
(1) give the other party prompt notice of the commencement of any proceeding by
or before any governmental body with respect to the transactions contemplated by
this Agreement, (2) keep the other party informed as to the status of any such
proceeding, and (3) promptly inform the other party of any communications to or
from the Federal Trade Commission, the Department of Justice or any other
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governmental body regarding the transactions contemplated by this Agreement.
Symantec and Buyer will consult and cooperate with one another, and will
consider in good faith the views of one another, in connection with any
analysis, appearance, presentation, memorandum, brief, argument, opinion or
proposal made or submitted in connection with any proceeding under or relating
to the HSR Act or any other federal or state antitrust or fair trade law. In
addition, except as may be prohibited by any governmental body, in connection
with any proceeding under or relating to the HSR Act or any other federal or
state antitrust or fair trade law or any other similar proceeding, each of
Symantec and Buyer will permit authorized Representatives of the other party to
be present at each meeting or conference relating to any such proceeding and to
have access to and be consulted in connection with any document, opinion or
proposal made or submitted to any governmental body in connection with any such
proceeding.
5.6 NECESSARY CONSENTS. Symantec will, at its own expense (other
than as provided in Section 5.5), use all commercially reasonable efforts to
obtain such written consents and take such other actions as may be necessary or
appropriate to facilitate or allow the consummation of the transactions
provided for herein and to facilitate and allow Buyer to purchase the Assets at
the Closing and to have full use of the Assets after the Closing.
5.7 LITIGATION. Symantec will notify Buyer in writing promptly after
learning of any action, suit, proceeding or investigation by or before any
court, board or governmental agency, initiated by or against Symantec or
threatened against Symantec which could have a material adverse effect on the
Business, the Assets or the ability of Symantec to consummate the transactions
contemplated by this Agreement.
5.8 ACCESS TO INFORMATION. Symantec will provide Buyer and its
agents with reasonable access to the files, books, records and offices of
Symantec associated with the Business and the Assets, including, without
limitation, any and all information relating to the Assets, taxes, commitments,
contracts, leases and licenses relating to the Business or the Assets and the
representations made by Symantec in this Agreement. Symantec will provide Buyer
with full access to all documents, materials and information embodying or
relating to the Software Programs and other Assets, including the source codes,
object codes, descriptions, layouts, diagrams, reports, test and other data and
programs, and all related documentation and information that is owned, used or
held by Symantec relating to the Business or the Assets and the representations
made by Symantec in this Agreement. Symantec will cause its accountants to
cooperate with Buyer and its agents in making available all financial
information reasonably requested relating to the Business or the Assets.
5.9 SATISFACTION OF CONDITIONS PRECEDENT. Symantec will use
reasonable efforts to satisfy or cause to be satisfied all the conditions
precedent which are set forth in Article 9. Symantec will use its reasonable
efforts to cause the transactions provided for in this Agreement to be
consummated, and, without limiting the generality of the foregoing, to obtain
all consents and authorizations of third parties and to make all
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filings with, and give all notices to, third parties that may be necessary or
reasonably required on its part in order to effect the transactions provided
for herein.
5.10 ENCUMBRANCES. Symantec will use all commercially reasonable
efforts to secure and preserve good title in Symantec's name in and to all of
the Assets, free of material encumbrances, and to terminate or cause to be
released all encumbrances on the Assets prior to Closing.
5.11 FUTURE AGREEMENTS. If Symantec enters into any material
agreement between the date of this Agreement and the Closing pertaining
directly and primarily to the Business or the Assets, at the request of Buyer,
Symantec agrees to include any such agreement within the Contracts.
5.12 NO SOLICITATION.
(a) Symantec shall not directly or indirectly, and shall not
authorize or permit any Representative directly or indirectly, to, (i) solicit,
initiate, encourage or induce the making, submission or announcement of any
Acquisition Proposal or take any action that could reasonably be expected to
lead to an Acquisition Proposal, (ii) furnish any information regarding the
Business or any of the Assets to any Person in connection with or in response
to an Acquisition Proposal, (iii) engage in discussions or negotiations with
any Person with respect to any Acquisition Proposal, (iv) approve, endorse or
recommend any Acquisition Proposal or (v) enter into any letter of intent or
similar document or any contract contemplating or otherwise relating to any
Acquisition proposal; unless Symantec's Board of Directors concludes in good
faith, after consultation with outside legal counsel, that such action is
required in order for Symantec's Board of Directors to comply with its
fiduciary obligations to Symantec's stockholders under applicable law. Without
limiting the generality of the foregoing, the Company acknowledges and agrees
that any violation of any of the restrictions set forth in the preceding
sentence by any Representative whether or not such Representative is purporting
to act on behalf of Symantec, shall be deemed to constitute a breach of this
Section 5.13.
(b) Symantec shall promptly advise Buyer orally and in writing
of any Acquisition Proposal (including the identity of the Person making or
submitting such Acquisition Proposal and the terms thereof) that is made or
submitted by any Person prior to Closing. Symantec shall keep Buyer fully
informed with respect to the status of any such Acquisition Proposal and any
modification or proposed modification thereto.
(c) Symantec shall immediately cease and cause to be terminated
any existing discussions with any Person that relate to any Acquisition
Proposal.
(d) For purposes of this Agreement, the term "ACQUISITION
PROPOSAL" shall mean any offer, proposal or inquiry (other than an offer or
proposal by Buyer) contemplating or otherwise relating to the acquisition of
the Business or any of
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the Assets and the Term "REPRESENTATIVES" shall mean officers, directors,
employees, agents, attorneys, accountants and representatives of the entity in
question.
6. BUYER PRECLOSING COVENANTS
Buyer covenants to and agrees with Symantec to comply with the
following covenants during the period from the date of this Agreement until the
Closing:
6.1 ADVICE OF CHANGES. Buyer will promptly advise Symantec in
writing of any event occurring subsequent to the date of this Agreement that
would render any representation or warranty of Buyer contained in this
Agreement, if made on or as of the date of such event or the Closing Date,
untrue or inaccurate in any material respect.
6.2 SATISFACTION OF CONDITIONS PRECEDENT. Buyer will use reasonable
efforts to satisfy or cause to be satisfied all the conditions precedent which
are set forth in Article 8, and Buyer will use reasonable efforts to cause the
transactions provided for in this Agreement to be consummated, and, without
limiting the generality of the foregoing, to obtain all consents and
authorizations of third parties and to make all filings with, and give all
notices to, third parties that may be necessary or reasonably required on its
part in order to effect the transactions provided for herein.
6.3 REGULATORY APPROVALS. Buyer will execute and file, or assist in
the execution and filing, of any application or other document that may be
necessary in order to obtain the authorization, approval or consent of any
governmental body, federal, state, local or foreign which may be reasonably
required under the laws of the United States or otherwise, or which Symantec may
reasonably request, in connection with the consummation of the transactions
provided for in this Agreement. Buyer will use reasonable efforts to obtain or
assist Symantec in obtaining all such authorizations, approvals and consents,
and Buyer agrees to pay the reasonable costs for the same. Without limiting the
generality of the foregoing, Buyer and Symantec shall, promptly after the date
of this Agreement, prepare and file the notifications required under the HSR Act
in connection with the transactions contemplated by this Agreement. Buyer and
Symantec shall respond as promptly as practicable to (i) any inquiries or
requests received from the Federal Trade Commission or the Department of Justice
for additional information or documentation and (ii) any inquiries or requests
received from any state attorney general or other governmental body in
connection with antitrust or related matters. Each of Buyer and Symantec shall
(1) give the other party prompt notice of the commencement of any proceeding by
or before any governmental body with respect to the transactions contemplated by
this Agreement, (2) keep the other party informed as to the status of any such
proceeding, and (3) promptly inform the other party of any communications to or
from the Federal Trade Commission, the Department of Justice or any other
governmental body regarding the transactions contemplated by this Agreement.
Buyer and Symantec will consult and cooperate with one another, and will
consider in good faith the views of one another, in connection with any
analysis, appearance, presentation, memorandum, brief, argument, opinion or
proposal made or submitted in
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connection with any proceeding under or relating to the HSR Act or any other
federal or state antitrust or fair trade law. In addition, except as may be
prohibited by any governmental body, in connection with any proceeding under or
relating to the HSR Act or any other federal or state antitrust or fair trade
law or any other similar proceeding, each of Buyer and Symantec will permit
authorized Representatives of the other party to be present at each meeting or
conference relating to any such proceeding and to have access to and be
consulted in connection with any document, opinion or proposal made or
submitted to any governmental body in connection with any such proceeding.
6.4 NO ADDITIONAL PAYMENTS. Except as otherwise specifically
provided in this Agreement or the Transition Plan (defined below), Buyer will
have no obligation to pay any expenses of Symantec or to fund the operations of
Symantec with respect to the Business, the Assets or otherwise.
6.5 NECESSARY CONSENTS. Buyer will use all commercially
reasonable efforts to obtain such written consents and take such other actions
as may be necessary or appropriate, in addition to those referred to in Section
6.3, to facilitate or allow the consummation of the transactions provided for
herein at the Closing.
6.6 LITIGATION. Buyer will notify Symantec in writing promptly
after learning of any action, suit, proceeding or investigation by or before
any court, board or governmental agency, initiated by or against Buyer or
threatened against Buyer that would have a material adverse effect on Buyer's
ability to consummate the transactions provided for herein.
7. CLOSING MATTERS
7.1 THE CLOSING. Subject to termination of this Agreement as
provided in Article 10 below, the consummation of the transactions provided for
herein (the "CLOSING") will take place at the offices of Xxxxxxxx & Xxxxxxxx
LLP, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 at 10:00 a.m. as soon as
practicable (and in no event later than three (3) business days) following the
date on which all conditions to closing have been satisfied or waived by the
appropriate parties, or at such other place, time and date as the parties may
mutually select (the "CLOSING DATE"). At the Closing, (x) Symantec will deliver
to Buyer (i) instruments of transfer, in form and substance reasonably
satisfactory to Buyer and its counsel, evidencing the sale, assignment,
conveyance and transfer to Buyer of the Assets and (ii) the certificates and
other documents required pursuant to Section 9 below, and (y) Buyer will (i)
deliver to Symantec the certificates and other documents required pursuant to
Section 8 below, and (ii) pay to Symantec the Purchase Price by wire transfer
of immediately available funds to an account designated by Symantec.
7.2 DELIVERY OF DOCUMENTATION; TAXES. Symantec will deliver and
transfer to Buyer on or before the Closing all copies of the Software Programs,
work in progress and documentation with respect to the Software Programs and
the other Assets, in accordance with Buyer's instructions on manner and
location of delivery, and will
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represent at the Closing that all such copies, work in progress, documentation
and other materials have been so delivered. Buyer will pay all sales, transfer,
ad valorem, use and stamp taxes, if any, that may be payable in connection with
the sale, assignment, conveyance, transfer and delivery of the Assets to Buyer
hereunder (the "TRANSFER TAXES").
7.3 FURTHER ASSURANCES. If, at any time after the
Closing, Buyer reasonably considers or is advised that any further deeds,
assignments or assurances are reasonably necessary or desirable to vest,
perfect or confirm in Buyer title to any of the Assets, Symantec will promptly
execute and deliver all such proper deeds, assignments and assurances and do
all other things necessary or desirable to vest, perfect or confirm title to
such Assets in Buyer and otherwise to carry out the purposes of this Agreement.
8. CONDITIONS TO OBLIGATIONS OF SYMANTEC
The obligations of Symantec hereunder are subject to the
fulfillment or satisfaction, on and as of the Closing, of each of the following
conditions (any one or more of which may be waived by Symantec, but only in a
writing signed by Symantec):
8.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Buyer set forth in this Agreement shall be
true and accurate in every material respect on and as of the date of this
Agreement and (as supplemented or amended by any supplements or amendments
delivered by Buyer to Symantec in writing, and accepted by Symantec, prior to
the Closing Date) as of the Closing Date with the same force and effect as if
they had been made at the Closing. Symantec shall have received a certificate
to such effect executed by BEA's Chief Executive Officer on behalf of BEA.
8.2 COVENANTS. Buyer shall have performed and complied in
all material respects with all of its covenants contained in Article 6 on or
before the Closing. Symantec shall have received a certificate to such effect
executed by BEA's Chief Executive Officer on behalf of BEA.
8.3 COMPLIANCE WITH LAW. There shall be no order, decree,
or ruling by any court or governmental agency or threat thereof, or any other
fact or circumstance, which would prohibit or render illegal the transactions
contemplated by this Agreement.
8.4 GOVERNMENT CONSENTS. There shall have been obtained at
or prior to the Closing Date such permits or authorizations by any regulatory
authority having jurisdiction over the parties and the actions herein proposed
to be taken, including, without limitation, approval or early termination of
the review of the HSR Filings (the "HSR APPROVAL"), and there shall have been
taken such other action, as may be required to consummate the transactions
provided for herein in compliance with applicable laws.
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8.5 NO LITIGATION. No litigation or proceeding shall be
pending which has the probable effect of enjoining or preventing the
consummation of any of the transactions provided for in this Agreement.
8.6 TRANSITION PLAN. The parties shall have signed a
Transition Plan in the form attached as Exhibit E (the "TRANSITION PLAN").
8.7 OPINION OF COUNSEL. Symantec shall have received from
Xxxxxxxx & Xxxxxxxx, LLP, an opinion substantially in the form attached hereto
as Exhibit F.
9. CONDITIONS TO OBLIGATIONS OF BUYER
The obligations of Buyer hereunder are subject to the
fulfillment or satisfaction, on and as of the Closing, of each of the following
conditions (any one or more of which may be waived by Buyer, but only in a
writing signed by Buyer):
9.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Symantec set forth in this Agreement shall be
true and complete in every material respect, on and as of the date of this
Agreement and (as supplemented or amended by any supplements or amendments
delivered by Symantec to Buyer in writing, and accepted by Buyer, prior to the
Closing Date) as of the Closing with the same force and effect as if they had
been made at the Closing, except for such representations and warranties that
are otherwise qualified by materiality and the representations and warranties
contained in Sections 3.7, 3.9, 3.10, 3.11, 3.14 and 3.20 hereof, each of which
shall be true and correct in all respects on and as of the date of this
Agreement and (as supplemented or amended by any supplements or amendments
delivered by Symantec to Buyer in writing, and accepted by Buyer, prior to the
Closing Date) as of the Closing with the same force and effect as if they had
been made at the Closing. Buyer shall have received a certificate to such
effect executed by the Chief Executive Officer of Symantec on behalf of
Symantec.
9.2 COVENANTS. Symantec shall have performed and complied
in all material respects with all of its covenants contained in Article 5 and
in Section 7.2 on or before the Closing, and Buyer shall have received a
certificate to such effect signed by the Chief Executive Officer of Symantec on
behalf of Symantec.
9.3 COMPLIANCE WITH LAW. There shall be no order, decree,
or ruling by any court or governmental agency or threat thereof, or any other
fact or circumstance, which would prohibit or render illegal the transactions
provided for in this Agreement.
9.4 GOVERNMENT CONSENTS. There shall have been obtained at
or prior to the Closing Date such permits or authorizations by any regulatory
authority having jurisdiction over the parties and the actions herein proposed
to be taken including, without limitation, the HSR Approval, and there shall
have been taken such other action,
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as may be required to consummate the transactions provided for herein in
compliance with applicable laws.
9.5 NO LITIGATION. No litigation or proceeding shall be pending
which has the probable effect of (a) enjoining or preventing the consummation
of any of the transactions provided for in this Agreement or (b) having a
material adverse effect on the Assets or Buyer's ownership and use thereof.
9.6 NO MATERIAL ADVERSE CHANGE. No material adverse change shall
have occurred after October 31, 1999 in the Business or the Assets.
9.7 ANCILLARY AGREEMENTS. An Offer Letter in the form of Exhibit G
hereto, with such changes as may be approved by Buyer, shall have been executed
and delivered to Buyer by the people listed on Section 9.7 of the Buyer
Exception Letter.
9.8 STATUS OF SOFTWARE PROGRAMS. Buyer, or its agent, shall have
received the Software Programs.
9.9 RELEASE OF OBLIGATIONS. Symantec shall have executed and
delivered agreements in a form reasonably satisfactory to Buyer, releasing
those Business Employees who have accepted employment (either as of the Closing
or thereafter) with Buyer or any of its affiliates from any obligations of such
employees to Symantec under employment agreements, confidentiality agreements,
invention agreements or other similar agreements to the extent that such
obligations would restrict or inhibit the employees' performance of their
duties as employees of Buyer or its subsidiaries.
9.10 OPINION OF COUNSEL TO SYMANTEC. Buyer shall have received from
Fenwick & West, an opinion substantially in the form attached hereto as
Exhibit H.
9.11 DOCUMENTS. Buyer shall have received all written consents,
assignments, waivers, authorizations or other certificates reasonably deemed
necessary by Buyer's legal counsel to provide for the assignment to Buyer of
all Contracts (other than the Contracts listed in Section 9.11 of the Symantec
Exception Letter) and the continuation in full force and effect of the
Contracts, for the sale, assignment, and transfer to Buyer of the other Assets,
including, without limitation, the domain name "xxx.xxxxxxxxxx.xxx", for
Buyer's unrestricted and encumbered use thereof (except for those encumbrances
listed in Section 1.2 of the Symantec Exception Letter), and for Buyer to
consummate the transactions contemplated hereby; provided that none of the
Contracts will be adversely affected by the transactions provided for herein.
9.12 TRANSITION PLAN. The parties shall have signed the Transition
Plan.
9.13 LICENSE AGREEMENT. The parties shall have executed the License.
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10. TERMINATION OF AGREEMENT
10.1 PRIOR TO THE CLOSING.
(a) This Agreement may be terminated at any time prior to the
Closing by the mutual written consent of each of the parties hereto.
(b) Unless otherwise specifically provided herein or agreed in
writing by the parties hereto, this Agreement will be automatically terminated
if all conditions to the Closing have not been or cannot reasonably be
satisfied or waived, on or before December 31, 1999; provided, however, that
the parties may agree in writing to extend this date.
10.2 AT THE CLOSING. At the Closing, this Agreement may be terminated
and abandoned:
(a) By Buyer if any of the conditions precedent to Buyer's
obligations set forth in Section 9 above have not been fulfilled or waived at
and as of the Closing or if Symantec is in material breach of this Agreement; or
(b) By Symantec if any of the conditions precedent to their
obligations set forth in Section 8 above have not been fulfilled or waived at
and as of the Closing or if Buyer is in material breach of this Agreement.
Except as otherwise provided herein, any termination of this Agreement
under this Section 10.2 will be effective upon the delivery of notice of the
terminating party to the other party hereto.
10.3 CONFIDENTIALITY AGREEMENT. The parties respective obligations
under that certain Confidentiality Agreement dated _________, 1999 (the
"CONFIDENTIALITY AGREEMENT") will remain in full force and effect, in
accordance with the terms of such Confidentiality Agreement, after the
termination of this Agreement for any reason.
10.4 CERTAIN CONTINUING OBLIGATIONS. Following any termination of
this Agreement pursuant to this Article 10, the parties hereto will continue to
perform their respective obligations under Sections 10.3 and 12.17, but the
parties will not be required to continue to perform their other covenants under
this Agreement and the representations and warranties made by each party will
terminate and be of no further force or effect.
11. SURVIVAL OF REPRESENTATIONS, INDEMNIFICATION AND REMEDIES, CONTINUING
COVENANTS
11.1 SURVIVAL OF REPRESENTATIONS. The parties' respective
representations, warranties and covenants contained in this Agreement will
remain
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operative and in full force and effect for twelve months after the Closing in
accordance with their respective terms.
11.2 INDEMNIFICATION.
(a) After the Closing, and subject to Section 11.2(e),
Symantec will indemnify, defend and hold harmless Buyer and each of its
directors, and shareholders, and officers, and their administrators, successors
and assigns against any Loss to which any such person or entity may become
subject insofar as such Loss (or actions in respect thereof) arise out of or are
based upon: (a) any breach by Symantec of its obligations, representations or
warranties under this Agreement or any material misrepresentation by Symantec
under this Agreement, (b) any liabilities of Symantec not expressly assumed by
Buyer hereunder, (c) except as expressly assumed by Buyer herein, the operation
of the Business at any time on or prior to the Effective Date (including any
taxes related to Symantec's operations), the operation of the Business other
than in the ordinary course between the Effective Date and the Closing Date, and
any claims or actions brought by Symantec employees, former employees, agents or
representatives based on claims arising prior to the Closing Date, other than
those expressly assumed by Buyer, (d) Software Programs or other products or
services sold, licensed or otherwise provided by Symantec to third parties on or
prior to the Closing, other than warranty and service claims based on warranties
disclosed to Buyer hereunder, (e) any claim of infringement, misappropriation or
violation of any patent, copyright, trademark, service xxxx, or other
intellectual or industrial property or proprietary right of any third party by
the Intellectual Property Rights or the Software Programs as such claim relates
to the period prior to the Closing or exists in breach of Symantec's
representations and warranties in Section 3.10 hereof, or (f) failure of
Symantec to comply with any Environmental Law. Symantec will reimburse any such
person or entity for any legal or any other expenses reasonably incurred by such
person or entity in connection with investigating or defending any such loss,
claim, damage, liability or action, to the extent that the indemnity provided
for above applies. No recovery will be available under this Section 11.2(a) for
lost profits or consequential damages. As to any claim for indemnification
provided for in this Section 11.2 other than with respect to an Indemnified
Distributor Claim, such claim shall not apply unless and until the Loss for
which one or more indemnified party seeks indemnification under this Section,
exclusive of legal fees, exceeds $300,000 (the "BASKET"), in which event
Symantec shall be liable to indemnify such indemnified party or parties for all
of the Loss. Symantec liability under Section 11.2(a) and otherwise under this
Agreement shall be limited to Seven Million Five Hundred Thousand Dollars
($7,500,000.00) in the aggregate.
(b) After the Closing, and subject to Section 11.2(e),
Buyer will indemnify, defend and hold harmless Symantec and each of its
directors, and shareholders, and officers, and their administrators, successors
and assigns against any Loss to which any such person or entity may become
subject insofar as such Loss (or actions in respect thereof) arise out of or are
based upon: (a) any breach by Buyer of its obligations, representations or
warranties under this Agreement or any material
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misrepresentation by Buyer under this Agreement, (b) any liabilities assumed by
Buyer hereunder, or (c) the operation of the Business at any time after the
Effective Date (including any taxes related to Buyer's operations). Buyer will
reimburse any such person or entity for any legal or any other expenses
reasonably incurred by such person or entity in connection with investigating
or defending any such loss, claim, damage, liability or action, to the extent
that the indemnity provided for above applies. No recovery will be available
under this Section 11.2(b) for lost profits or consequential damages. As to any
claim for indemnification provided for in this Section 11.2(b), such claim
shall not apply unless and until the Loss for which one or more indemnified
party seeks indemnification under this Section, exclusive of legal fees,
exceeds $300,000 (the "BASKET"), in which event Buyer shall be liable to
indemnify such indemnified party or parties for all of the Loss. Buyer
liability under Section 11.2(b) and otherwise under this Agreement shall be
limited to Seven Million Five Hundred Thousand Dollars ($7,500,000.00) in the
aggregate.
(c) As used in this Article 11, "LOSS" means and includes any
and all liabilities, losses, damages, claims, expenses, costs, fines, fees,
penalties, obligations, injuries or amounts paid in settlement, including those
resulting from any and all claims, actions, suits, demands, assessments,
investigations, judgments, orders, awards, arbitrations, settlements or other
proceedings, together with reasonable costs and expenses, including the
reasonable attorneys' and experts' fees, court costs, arbitration costs, filing
fees and other legal costs and expenses relating thereto.
(d) Each person entitled to indemnification under this Section
11.2 (the "INDEMNIFIED PARTY") will give notice in writing to the party
required to provide such indemnification (the "INDEMNIFYING PARTY") promptly
after such Indemnified Party has knowledge of any claim as to which indemnity
may be sought, and will permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom; provided, that counsel
for the Indemnifying Party, which will conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (which approval must not
be unreasonably withheld); and, provided, further, that the failure of any
Indemnified Party to give notice as provided herein will not relieve the
Indemnifying Party of its obligations under this Section 11.2 except to the
extent the Indemnifying Party is actually prejudiced thereby. The Indemnified
Party may participate in such defense as such party's cost and expense. The
Indemnifying Party will not, in the defense of any such claim or litigation,
except with the consent of each Indemnified Party (which consent will not be
unreasonably withheld or delayed), consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation, and no Indemnified Party
will consent to entry of any judgment or settle such claim or litigation (or
enter into any agreement related to the same with the claimants) without the
prior written consent of the Indemnifying Party.
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(c) No claim for indemnification under this Section 11.2 may be
brought after the first (1st) anniversary of the Closing Date.
11.3 NO LIMITATION ON INJUNCTIVE RELIEF. The foregoing provisions of
this Article 11 shall be the exclusive monetary remedies available to an
Indemnified Party but nothing herein shall be deemed to restrict a party's
ability to seek and obtain injunctive relief in an appropriate case.
11.4 NONSOLICITATION OF EMPLOYEES. Beginning with the execution of
this Agreement and continuing until two years after the Closing Date, Symantec
will not directly or indirectly recruit, attempt to hire, solicit or assist
others in recruiting, attempting to hire or soliciting any Business Employee
hired by Buyer.
11.5 NONCOMPETITION PROVISION.
(a) In consideration of Buyer entering into this Agreement,
Symantec hereby agrees with Buyer (and for the purposes of this clause, Buyer
includes an associated, subsidiary, related or affiliate company) that for a
two year period following the Closing (the "NONCOMPETE PERIOD"), Symantec will
not, directly or indirectly, (except with the prior written consent of Buyer)
or in any other capacity whatsoever of or for any person, firm, partnership,
company or corporation other than Buyer:
(i) Own, manage, operate, sell, control or participate in
the ownership, management, operation, sales or control of or be connected in
any manner with any business engaged, in the design, research, development,
marketing, sale, or licensing of computer software that is substantially
similar to or competitive with the Business, other than in connection with a
non-controlling interest in a public company or a private company primarily
engaged in another business; or
(ii) Directly or indirectly develop computer software that
is substantially similar to or competitive with any of the Programs.
(b) GEOGRAPHICAL AREAS. The geographical areas in which the
restrictions provided for in this Section 11.5 apply include all cities,
counties and states of Europe, Japan, China, Taiwan, Korea, Australia, the
United States, and all other countries in which Buyer (or any of its
subsidiaries) has engaged in licensing or sales or otherwise conducted business
or selling or licensing efforts at any time up to and including the date of the
Closing. Symantec acknowledges that the scope and period of restrictions and
the geographical area to which the restrictions imposed in this Section 11.5
applies are fair and reasonable and are reasonably required for the protection
of Buyer and that this Agreement accurately describes the business to which the
restrictions are intended to apply.
(c) AMENDMENT TO RETAIN ENFORCEABILITY. It is the intent of the
parties that the provisions of this Section 11.5 will be enforced to the
fullest extent
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permissible under applicable law. If any particular provision or portion of
this Section is adjudicated to be invalid or unenforceable, this Agreement will
be deemed amended to revise that provision or portion to the minimum extent
necessary to render it enforceable. Such amendment will apply only with respect
to the operation of this paragraph in the particular jurisdiction in which such
adjudication was made.
(d) INJUNCTIVE RELIEF. Seller acknowledges that any breach of
the covenants of this Section 11.5 will result in immediate and irreparable
injury to Buyer and, accordingly, consents to the application of injunctive
relief and such other equitable remedies for the benefit of Buyer as may be
appropriate in the event such a breach occurs or is threatened. The foregoing
remedies will be in addition to all other legal remedies to which Buyer may be
entitled hereunder, other than monetary damages which are specifically limited
to indemnification pursuant to Section 11.2 above.
11.6 COOPERATION ON TAX AUDITS. The parties shall also cooperate in
making information available as needed in the event of a tax audit, whether in
the United States or any other country; provided, however, that the party being
audited shall reimburse the other party for any of its out of pocket costs
incurred in connection with providing such information. The obligation pursuant
to this paragraph to cooperate in making information available as needed in the
event of a tax audit shall survive the expiration of this Agreement.
12. UNASSIGNED CONTRACTS. The parties hereto agree to cooperate with
respect to obtaining consents to the assignment of the Contracts. To the extent
that Symantec has made a good faith effort to obtain a consent to assign a
Contract to Buyer and has been unable to do so, Symantec agrees to subcontract
to Buyer with respect to such Contract or otherwise cooperate with Buyer in
order to provide Buyer the benefits of such Contract.
13. MISCELLANEOUS.
13.1 GOVERNING LAW. The internal laws of the State of California,
(irrespective of its conflicts of law principles) will govern the validity of
this Agreement, the construction of its terms, and the interpretation and
enforcement of the rights and duties of the parties hereto.
13.2 CONSULTATIONS. The parties each acknowledge that they have
consulted with their respective accounting and tax advisors in connection with
the accounting and tax treatment for this transaction, that each such party
will bear all risk in connection with its accounting and tax treatment of the
transactions contemplated hereby and that no party is relying on any other party
in connection with the same.
13.3 ASSIGNMENT; BINDING UPON SUCCESSORS AND ASSIGNS. Neither party
hereto may assign any of its rights or obligations hereunder, by operation of
law or otherwise, without the prior written consent of the other party hereto.
This Agreement will be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
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13.4 SEVERABILITY. If any provision of this Agreement, or the application
thereof, is for any reason held to any extent to be invalid or unenforceable,
the remainder of this Agreement and application of such provision to other
persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of the void or unenforceable provision.
13.5 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which will be an original as regards any party whose signature appears
thereon and all of which together will constitute one and the same instrument.
This Agreement will become binding when one or more counterparts hereof,
individually or taken together, bear the signatures of all the parties
reflected hereon as signatories.
13.6 AMENDMENT. Any term or provision of this Agreement may be amended,
and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only by a writing signed by the party to be bound thereby.
13.7 NO WAIVER. The failure of any party to enforce any of the provisions
hereof will not be construed to be a waiver of the right of such party
thereafter to enforce such provisions. The waiver by any party of any breach
hereof or any default in the performance hereof or of the right to enforce any
of the provisions hereof on any occasion will not be deemed to constitute a
waiver of any other default or any succeeding breach or default or of the right
of such party to enforce such provision on any other occasion.
13.8 EXPENSES. Each party will bear its respective expenses and fees of
its own accountants, attorneys, investment bankers and other professionals
incurred with respect to this Agreement and the transactions contemplated
hereby.
13.9 ATTORNEYS' FEES. Should any legal action or proceeding be brought to
enforce or interpret any part of this Agreement, the prevailing party will be
entitled to recover, as an element of the costs of suit and not as damages,
reasonable attorneys' fees, costs and expenses in connection with such legal
action or proceeding (including all appeals) in addition to all other relief to
which such party may be entitled.
13.10 NOTICES. Any notice or other communication required or permitted to
be given under this Agreement will be in writing, will be delivered personally
or by mail or express delivery, postage prepaid, and will be deemed given upon
actual delivery or, if mailed by first class mail, on the third business day
following deposits in the mails, addressed as follows:
(i) If to Buyer:
Buyer Corporation
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0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
(ii) if to Symantec:
Symantec Corporation
00000 Xxxxxxx Xxxxx Xxxx.
Xxxxxxxxx, XX 00000
Attention: General Counsel
with a copy to:
Fenwick & Xxxx
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxx
or to such other address as the party in question may have furnished to the
other party by written notice given in accordance with this Section 12.11.
13.11 CONSTRUCTION OF AGREEMENT. This Agreement has been
negotiated by the respective parties hereto and their attorneys, and the
language hereof will not be construed for or against either party. A reference
to an article, section or exhibit will mean an article or section in, or an
exhibit to, this Agreement, unless otherwise explicitly set forth. The titles
and headings in this Agreement are for reference purposes only and will not in
any manner limit the construction of this Agreement. For the purposes of such
construction, this Agreement will be considered as a whole. The terms
"including" and "include" as used in this Agreement will be deemed to include
the phrase "without limitation."
13.12 NO JOINT VENTURE. Nothing contained in this Agreement will be
deemed or construed as creating a joint venture or partnership between the
parties hereto. No party is by virtue of this Agreement authorized as an agent,
employee or legal representative of any other party. No party will have the
power to control the activities and operations of any other, and the parties'
status is, and at all times, will continue to be, that of independent
contractors with respect to each other. No party will have any power or
authority to bind or commit any other. No party will hold itself out as having
any authority or relationship in contravention of this Section.
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13.13 FURTHER ASSURANCES. Each party agrees to cooperate fully with
the other party and to execute such further instruments, documents and
agreements and to give such further written assurances as may be reasonably
requested by the other party to evidence and reflect the transactions provided
for herein and to carry into effect the intent of this Agreement.
13.14 ABSENCE OF THIRD PARTY BENEFICIARY RIGHTS. No provisions of
this Agreement are intended, nor will be interpreted, to provide or create any
third party beneficiary rights or any other rights of any kind in any client,
customer, affiliate, partner or employee of any party hereto or any other
person or entity, unless specifically provided otherwise herein, and, except as
so provided, all provisions hereof will be personal solely between the parties
to this Agreement.
13.15 PUBLIC ANNOUNCEMENT. At a mutually agreed time following the
execution of this Agreement and prior to the earliest possible date for HSR
Approval, if practicable, the parties will issue a press release approved by
the parties announcing their entering into this Agreement. Until such time,
none of the parties will disclose the existence or substance of this Agreement
or the transactions provided for in this Agreement; provided, however, each
party may issue such press releases, and make such other disclosures, as it
determines to be required or appropriate under applicable securities laws or
NASD rules, after reasonable consultation where possible with the other parties.
13.16 CONFIDENTIALITY. Except as expressly authorized by Buyer in
writing, Symantec will not directly or indirectly divulge to any person or
entity or use any Buyer Confidential Information. Except as expressly
authorized by Symantec in writing, Buyer will not directly or indirectly
divulge to any person or entity or use any Symantec Confidential Information.
As used herein, "BUYER CONFIDENTIAL INFORMATION" consists of (a) any
information designated by Buyer as confidential whether developed by Buyer or
disclosed to Buyer by a third party, (b) any information relating to Buyer's
product plans, product designs, product costs, product prices, product names,
finances, marketing plans, business opportunities, personnel, research,
development or know-how or (c) on or after the Closing Date, any proprietary or
confidential information included in or associated with the Assets or the
Business. As used herein, "SYMANTEC CONFIDENTIAL INFORMATION" consists of (x)
any information designated by Symantec as confidential whether developed by
Symantec or disclosed to Symantec by a third party (on or after the Closing
Date such information will not include any information included in the Assets),
(y) any information relating to the product plans, product designs, product
costs, product prices, product names, finances, marketing plans, business
opportunities, personnel, research, development or know-how of Symantec, and
all rights in software and developments (except that nothing herein will
restrict Buyer's use and disclosure of information included in the Assets after
the Closing). "BUYER CONFIDENTIAL INFORMATION" and "SYMANTEC CONFIDENTIAL
INFORMATION" also include the terms and conditions and existence of this
Agreement, except as disclosed in accordance with Section 12.15 above. The
foregoing restrictions will apply to information about a party whether or not
it was
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obtained from such party's employees, acquired or developed by the other party
during such other party's performance under this Agreement, or otherwise
learned, including all information obtained through due diligence, and by a
party's accountants, attorneys and other agents under or as the result of this
Agreement. The foregoing restrictions will not apply to information that (i)
has become publicly known through no wrongful act of the receiving party, (ii)
has been rightfully received from a third party authorized by the party which
is the owner, creator or compiler to make such disclosure without restriction,
(iii) has been approved for release by written authorization of the party which
is the owner, creator or compiler, or (iv) is being or has theretofore been
disclosed pursuant to a valid court order after a reasonable attempt has been
made to notify the party which is the owner, creator or compiler.
13.17 ENTIRE AGREEMENT. This Agreement, the exhibits hereto and the
Confidentiality Agreement constitute the entire understanding and agreement of
the parties hereto with respect to the subject matter hereof and thereof and
supersede all prior and contemporaneous agreements, understandings,
negotiations and discussions, express or implied, written or oral, of the
parties with respect to the subject matter hereof. The express terms hereof
control and supersede any course of performance or usage of trade inconsistent
with any of the terms hereof.
13.18 BEST KNOWLEDGE. For purposes of this Agreement, the term "best
knowledge" of Symantec shall mean the actual knowledge of Symantec's officers,
directors and managers, as well as any facts that such individuals would have
had if they made reasonable inquiry as to any matters where they have knowledge
of facts that would make a reasonable man conduct a further inquiry.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SYMANTEC CORPORATION
By: /s/ XXXXXXX XXXXX
-------------------------------------
Name: Xxxxxxx Xxxxx
-------------------------------
Its: Chief Financial Officer
-------------------------------
SYMANTEC LIMITED
By: /s/ XXXXXX XXXXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
-------------------------------
Its: Director
-------------------------------
BEA SYSTEMS, INC.
By:
-------------------------------------
Name:
-------------------------------
Its:
-------------------------------
WB INFORMATION CORPORATION
By:
-------------------------------------
Name:
-------------------------------
Its:
-------------------------------
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SYMANTEC CORPORATION
By:
--------------------------------------
Name:
--------------------------------
Its:
--------------------------------
SYMANTEC LIMITED
By:
--------------------------------------
Name:
--------------------------------
Its:
--------------------------------
BEA SYSTEMS, INC.
By: /s/ XXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------
Its: VP, General Counsel & Secretary
--------------------------------
WB INFORMATION CORPORATION
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------
Its: CFO & Secretary
-------------------------------
35
37
LIST OF SCHEDULES AND EXHIBITS*
Exhibit A -- The Business
Exhibit A-1 -- The Programs
Exhibit A-2 -- The Tools
Exhibit A-3 -- The Licensed Programs
Exhibit A-4 -- The Superseded Programs
Exhibit B -- The Developments
Exhibit C -- Licenses, Contracts and Other Obligations
Exhibit D -- The Tangible Assets
Exhibit E -- Transition Plan
Exhibit F -- MoFo Opinion of Counsel
Exhibit G -- Offer Letter
Exhibit H -- F & W Opinion of Counsel
Exhibit I -- Release of Obligations
Exhibit J -- License
Schedule 1.1 -- Excluded Licenses, Obligations, Contracts, Agreements or
Commitments
Schedule 1.1(c) -- Excluded Intellectual Property Rights
Schedule 1.1(d) -- Domain Names, etc.
Schedule 1.2 -- Excluded Assets
Schedule 1.4 -- Assumption of Liabilities
Schedule 2.1 -- Retention Bonuses
Schedule 3.2(b) -- Power, Authority and Validity
Schedule 3.3 -- No Violation
Schedule 3.4 -- Litigation
Schedule 3.5(a) -- Financial Information
Schedule 3.7 -- No Product or Service Warranty Claims
Schedule 3.8 -- Absence of Certain Changes
Schedule 3.9 -- Contracts, Tangible Assets
38
Schedule 3.10 -- Intellectual Property
Schedule 3.13(a) -- Employments Contracts
Schedule 3.13(c) -- Employee Plans
Schedule 3.13(e) -- Employees
Schedule 9.7 -- Offerees
Schedule 9.11 -- Documents
*Omitted Schedules and Exhibits will be furnished supplementally to the
Commission upon request.
39
ASSIGNMENT AND ASSUMPTION AGREEMENT
The Assignment and Assumption Agreement (this "Assignment") is entered
into as of December 29, 1999 between WB Information Corporation, a Delaware
corporation ("WB") and BEA Systems, Inc., a Delaware corporation ("BEA").
R E C I T A L S
A. WB and BEA are partners to that certain Asset Purchase Agreement dated
as of December 10, 1999, (the "Asset Purchase Agreement") relating to the
purchase from Symantec Corporation and Symantec Limited (together "Symantec")
of the Visual Cafe Product line of Symantec.
B. BEA desires to assign and WB desires to accept the assignment from BEA
of all of BEA's rights and obligations under the Asset Purchase Agreement.
AGREEMENT
NOW, THEREFORE, for consideration heretofore delivered by WB to BEA, WB
and BEA agree that all of BEA's right, title and interest in and to any of the
assets being transferred to either of them under the Asset Purchase Agreement
and all of BEA's rights in and obligations under the Asset Purchase Agreement
are hereby assigned to WB and WB hereof accepts the assignment to it of all
such assets or rights and, to the extent permitted by Symantec the Asset
Purchase Agreement, accepts all of BEA's obligations under the Asset Purchase
Agreement.
40
IN WITNESS WHEREOF, the parties have executed this Assignment as of the
29th day of December, 1999.
WB INFORMATION CORPORATION
By: /s/ XXXXXX XXXXXX
---------------------------------
Name: Xxxxxx Xxxxxx
Title: President and CEO
BEA SYSTEMS, INC.
By: XXXXXX X. XXXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: [TITLE ILLEGIBLE]
