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Exhibit 4.(a)(xii)
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement"), dated as of 29 SEPTEMBER,
2000, by and between Xxxxx Networks (New Jersey) Inc., a Delaware corporation,
with principal offices at 000 Xxxxxxxxxx Xxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx, 00000
(the "Seller") and Freedom Vertical Technologies Inc, a New Jersey corporation,
with principal offices also at 000 Xxxxxxxxxx Xxx West, aforesaid (the "Buyer").
RECITALS
A. The Seller is engaged in the ISDN video networking business which
involves the development, manufacture and sale of ISDN based switches
primarily used for building video networks; supplying ISDN network
simulation equipment used by network vendors in the development and
testing of their ISDN products; research and development; and providing
and supplying ISDN based video networking solutions.
B. The Seller and the Seller's Affiliates (as defined below) desire to
sell and the Buyer desires to purchase the part of the business
referred to in Recital A which carries out the manufacturing function
(the "Video Manufacturing Business") and, simultaneous with this sale,
the Seller and the Seller's Affiliates are proposing to sell the
remainder of the business (the"Video Business") to YorkTelecom
Acquisition Corporation, a New Jersey Corporation with principal
offices at 0 Xxxxxxxxxx Xxx Xxxx, Xxxxxxxx X, Xxxxxxxxx, Xxx Xxxxxx
("YorkTel").
C. On the close of both of the sales referred to in Recital B, the Buyer
and YorkTel are proposing to enter into a supply agreement (the "Supply
Agreement") whereby the Buyer will manufacture and supply the products
of the Video Business to YorkTel and will also supply RMA services (to
be more particularly defined in the Supply Agreement) in respect of
these products to YorkTel.
D. Subject to this Agreement becoming unconditional, the Seller and the
Seller's Affiliates have agreed to sell, and the Buyer has agreed to
purchase, certain of the Seller's assets and the assets of the Seller's
Affiliates used in the conduct of Video Manufacturing Business in
accordance with the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual promises,
representations, warranties and covenants herein contained and the mutual
benefits to be derived herefrom, the Parties hereby agree as follows:
ARTICLE 1
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DEFINITIONS
Unless elsewhere defined herein, the following terms shall have the
meanings set forth in this Article 1.
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"ADDITIONAL ASSETS AND EQUIPMENT" means the manufacturing tools,
equipment, furniture, fixtures and fittings of the Seller and of the Seller's
Affiliates which are not required to run the Video Manufacturing Business but
which the Buyer has agreed to purchase, as listed in Schedule 1a.
"AFFILIATE" means, with respect to any Person, at the time in question,
any other Person controlling, controlled by or under common control with such
Person. For purposes of this definition, "control" (including the terms
"controlling," "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract, employment, position or otherwise.
"AGREEMENT" means this Asset Purchase Agreement.
" ASSETS AND EQUIPMENT" means the manufacturing tools, equipment,
furniture, fixtures and fittings of the Seller and of the Seller's Affiliates
which are required to run the Video Manufacturing Business, as listed in
Schedule 1.
"ASSUMED LIABILITIES" has the meaning set forth in Section 3.02.
"BUYER" has the meaning set forth in the introductory paragraph of this
Agreement.
"BUYER INDEMNITEES" shall have the meaning set forth in Section 10.01.
"CLOSING" means the closing of the transactions contemplated by this
Agreement.
"CLOSING CONDITIONS" has the meaning set forth in section 2.02.
"CLOSING DATE" has the meaning set forth in Section 8.01.
"DISCLOSURE SCHEDULES" or "SCHEDULE" mean the schedules attached to
this Agreement.
"EMPLOYEE PENSION BENEFIT PLAN" has the meaning set forth in ERISA
Section 3(2).
"EMPLOYEE WELFARE BENEFIT PLAN" has the meaning set forth in ERISA
Section 3(2).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
."GOVERNMENTAL AUTHORITY" means any federal, state, local or foreign
government, political subdivision or governmental or regulatory authority,
agency, board, bureau, commission, instrumentality or court, or
quasi-governmental authority in whatever jurisdiction.
"HIBBINGS AGREEMENT" means the arrangement that the Seller has with
KByte Hibbing Manufacturing (which shall be referred to as "Hibbings" in this
Agreement), as at the Closing, pursuant to which the Seller (by way of purchase
order) sells certain inventory items to Hibbings which Hibbings then
incorporates into boards manufactured by Hibbings for onward sale to the Seller
as a finished product of the Business.
"HIBBINGS BOARDS" has the meaning set forth in section 4.06.
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"HIBBINGS INVENTORY" has the meaning set forth in section 4.06.
"HIBBINGS MONTHLY REPORT" has the meaning set forth in section 4.06.
"INITIAL PERIOD" means the period of six months from the Closing Date.
"INVENTORY" means all the inventory of the Video Manufacturing Business
and the Video Business which includes (i) component and subassembly items; (ii)
spare parts and refurbished products (RMA); and (iii) last time buy items, which
is to be delivered by the Seller to the Buyer in accordance with section
4.02(a).
"INVENTORY COMPONENT LIST" means the price list of all items of
Inventory to be agreed between the Seller and YorkTel pursuant to the terms of
the Sale Agreement as at the Closing.
"LIEN(S)" means any lien, mortgage, charge, pledge, hypothecation,
security interest, or other encumbrance of a similar nature.
"LOSS" means all liabilities, obligations, damages of any kind
(including, without limitation, general, special, incidental and consequential
damages), judgments, liens, injunctions, charges, orders, decrees, rulings,
demands, claims, losses, dues, assessments, Taxes, fines, expenses, fees, costs,
penalties and amounts paid in settlement (including reasonable attorneys' and
expert fees and disbursements in connection with investigating, defending or
settling any action or threatened action).
"MONTHLY REPORT" has the meaning set forth in section 4.03.
"PARTY" means the Buyer or the Seller, referred to individually, and
"Parties" means the Buyer and the Seller referred to collectively.
"PERSON" means an individual, corporation, limited liability company,
partnership, association, estate, trust, unincorporated organization,
Governmental Authority, or other entity or organization.
"PURCHASED ASSETS" has the meaning set forth in Section 2.01.
"PURCHASE ORDERS" means the open purchase orders relating to the Video
Manufacturing Business as at the Closing Date, placed by the Seller on a third
party as listed in Schedule 2.
"RECORDS" means the records related to the Video Manufacturing Business
and all employment records related to the Transferring Employees apart from any
financial, accounting and tax records of the Video Manufacturing Business which
shall be retained by the Seller.
"RETAINED ASSETS" has the meaning set forth in Section 2.03.
"RETAINED LIABILITIES" has the meaning set forth in Section 3.01.
"SALE AGREEMENT" means the agreement to be entered into at the Closing
between the Seller and YorkTel in relation to the sale of the Video Business to
YorkTel.
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"SELLER" has the meaning set forth in the introductory paragraph of
this Agreement.
"SELLER EMPLOYEE BENEFIT PLANS" has the meaning set forth in Section
5.09.
"SELLER INDEMNITEES" shall have the meaning set forth in Section 10.02.
"SIX MONTH PRODUCTION SCHEDULES" means the two production schedules,
each covering a period of six months, to be delivered by YorkTel to the Seller
pursuant to the terms of the Sale Agreement, the first one to be delivered at or
prior to the Closing and the second one to be delivered at least one month prior
to the end of the Initial Period.
"SOFTWARE LICENSES" means the software licenses that comprise the Test
Assets, as referred to in Schedule 3.
"SUPPLY AGREEMENT" has the meaning set forth in Recital C.
"TAX" means any federal, state or local tax or any foreign tax together
with any interest, addition to tax, or penalty.
"TAX CODE" means the Internal Revenue Code of 1986, as amended.
TEST ASSETS" means all test diagnostic procedures and associated
software, as listed in Schedule 3.
"TOKEN RING BUSINESS" means the manufacture and sale of certain token
ring products and ATM equipment carried out by the Seller, for and on behalf of
Xxxxx Logistics Limited, in the US and Canada.
"TOTAL UTILISED INVENTORY COST" has the meaning set forth in section
4.03.
"TOTAL UTILISED HIBBINGS INVENTORY COST" has the meaning set forth in
section 4.06.
"TOTAL PURCHASED INVENTORY COST" has the meaning set forth in section
4.03.
"TRANSFERRING EMPLOYEES" means the employees listed in Schedule 4.
"VIDEO BUSINESS" has the meaning set forth in Recital B.
"VIDEO MANUFACTURING BUSINESS" has the meaning set forth in Recital B.
"YORKTEL" has the meaning set forth in Recital B
ARTICLE 2
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SALE AND PURCHASE OF ASSETS
2.01 PURCHASED ASSETS. On the terms and subject to the conditions of
this Agreement, and in consideration of the mutual promises, representations,
warranties and covenants given pursuant to this Agreement and the sum of $11,250
(eleven thousand and two hundred and fifty dollars) in respect of the Additional
Assets and Equipment, at the Closing Date, the Seller shall
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sell, assign, transfer and convey, and shall cause the Seller's Affiliates to
sell, assign, transfer and convey on the Closing Date to the Buyer, free and
clear of all Liens, and the Buyer shall purchase all of the right, title and
interest of the Seller or the Seller's Affiliates in and to the following assets
(together the "Purchased Assets"):
(a) the Assets and Equipment;.
(b) the Additional Assets and Equipment;
(c) the Test Assets;
(d) the Purchase Orders;
(e) the Records (provided that the Seller shall not transfer any
employment records to the Buyer until such Transferring Employees have formally
accepted an offer of employment from the Buyer);
(f) the Transferring Employees; and
(g) all rights of the Seller or any of the Seller's Affiliates against
third parties for claims, actions, suits, proceedings and demands of any nature
in respect of the Purchased Assets, relating to any period after the Closing
Date.
2.02 CLOSING CONDITIONS. The sale and purchase of the Purchased Assets shall be
conditional on (x) the simultaneous close of the sale of the Video Business by
the Seller to YorkTel and (y) the Supply Agreement containing terms and
conditions acceptable to the Seller (the "Closing Conditions"). Each of the
Parties shall use their best endeavours to procure that the Closing Conditions
are satisfied at the Closing. In the event that the Closing Conditions are not
satisfied, all the obligations and liabilities of the Parties under this
Agreement (other than pursuant to sections 7.04 (Payment of Transaction Fees),
11.08 (Governing Law), 11.10 (Public Announcements) and 11.12 (Confidential
Information)) shall cease and determine and neither of the Parties shall have a
claim against the other.
2.03 RETAINED ASSETS. Notwithstanding the foregoing and for the avoidance of
doubt, the following assets shall be retained by the Seller or any of the
Seller's Affiliates (as the case may be) and shall not be included in the
Purchased Assets (the "Retained Assets"):
(a) the Video Business and all assets, properties and rights of the
Video Business (which shall be sold by the Seller to YorkTel pursuant to the
Sale Agreement);
(b) the Token Ring Business and all assets, properties and rights of
the Token Ring Business;
(c) all Inventory of the Video Business and the Video Manufacturing
Business (which shall be purchased by YorkTel pursuant to the Sale Agreement);
(d) any assets and equipment of the Seller and of the Seller's
Affiliates used in the Video Manufacturing Business which the Buyer does not
purchase at the Closing Date; and
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(e) all claims and rights of, related to or arising from, any of the
Retained Assets or Retained Liabilities.
ARTICLE 3
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LIABILITIES
3.01 RETAINED LIABILITIES. Except for those specific liabilities and
obligations provided for in Section 3.02, the Buyer shall not assume, be liable
for or pay, and the Seller or the Seller's Affiliates (as the case may be) shall
retain, be liable for and pay (or shall transfer to YorkTel pursuant to the Sale
Agreement), any liability or obligation of the Seller or the Seller's Affiliates
accruing with respect to, or arising from or relating to, the operation of the
Video Manufacturing Business or the ownership of the Purchased Assets prior to
the Closing (the "Retained Liabilities"), including, without limitation, the
following:
(a) all liabilities and obligations of the Video Business;
(b) all liabilities and obligations of the Token Ring Business;
(c) any liability or obligation under or in connection with the
Retained Assets.
(d) any federal, state, local or other foreign Tax payable with respect
to the Video Manufacturing Business or the Purchased Assets for any period prior
to the Closing;
(e) all liabilities of the Seller or the Seller's Affiliates with
respect to any claim, litigation or proceeding accruing with respect to, or
arising from or relating to the operation of the Video Manufacturing Business or
the ownership of the Purchased Assets prior to the Closing; and
(f) all liabilities, obligations, payments, benefits, costs and
expenses: (i) accruing, or arising from or relating to any period, prior to the
Closing with respect to the Transferring Employees and all former employees of
the Business whose employment terminated before the Closing including any
salary, wage, bonus, severance or other benefit which accrues prior to the
Closing, but is payable after the Closing; or (ii) accruing under any Seller
Employee Benefit Plan, whether before or after the Closing, including in
connection with the termination of any Transferring Employee's participation
under such plan.
3.02 ASSUMPTION OF LIABILITIES. As further consideration for the
acquisition of the Purchased Assets, the Buyer shall assume and agrees to pay,
perform and discharge only the following liabilities and obligations of the
Seller or the Seller's Affiliates (as the case may be) with respect to the Video
Manufacturing Business (the "Assumed Liabilities"):
(a) all liabilities and obligations under the Software Licenses to the
extent that such liabilities and obligations, accrue with respect to, arise
from, or relate to the operation of the Video Manufacturing Business by the
Buyer after the Closing;
(b) all liabilities, obligations, costs and expenses accruing after the
Closing with respect to the employment of the Transferring Employees;and
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(c) all liabilities and obligations under the Purchase Orders.
ARTICLE 4
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INVENTORY TERMS AND CONDITIONS
4.01 INVENTORY. Notwithstanding that the Inventory is excluded from the sale
and purchase of the Video Manufacturing Business pursuant to section
2.03 of this Agreement (as it is to be purchased by YorkTel pursuant to
the terms of the Sale Agreement), from the Closing Date, the Buyer has
agreed to keep the Inventory at it's premises and to use the Inventory
in accordance with the terms and conditions set out in this section 4.
4.02 GENERAL TERMS AND CONDITIONS.
The Buyer agrees to comply with the following terms and conditions in relation
to the Inventory:
(a) At the Closing the Seller shall deliver the Inventory to the Buyer's
premises at (a)625 Industrial Way West aforesaid and (b) 0000 Xxxx Xxxx
Xxxxxx, Xxxxxx Xxxxx, 00000. For the avoidance of doubt, the Seller
shall not be responsible for assisting with or paying any costs of any
subsequent moving of the Inventory after the Closing Date as a result
of a change in the premises at which the Buyer wishes to keep the
Inventory;
(b) Title in the Inventory shall at all times vest in the Seller until such
time as it is purchased and paid for by YorkTel pursuant to the terms
and conditions set out in the Sale Agreement;
(c) Risk in the Inventory shall pass to the Buyer upon delivery by the
Seller to the premises referred to in 4.02 (a) and the Buyer shall be
responsible for properly and safely storing such Inventory in accordance with
these terms and conditions provided that the Seller shall take out, at it's own
expense, a policy of insurance in respect of destruction or loss or damage to
the Inventory while in the custody of Freedom as a result of catastrophic events
usually found in such cover. Freedom shall be liable for all other stock loss or
damage. YorkTel shall be responsible for insuring any Inventory which it may
purchase after the date of this Agreement and the Buyer accordingly acknowledges
that the Seller shall not be liable in any manner whatsoever in respect of such
purchased Inventory;
(d) The Buyer shall keep the Inventory separate from any other inventory or
property owned by it, YorkTel, or any other third party so that it is
clearly identifiable as the property of the Seller;
(e) The Buyer is hereby authorised to use the Inventory in accordance
with the Six Month Production Schedules and with the orders placed by YorkTel on
the Buyer in respect of finished goods of the Video Business. The Buyer is not
authorised to use the Inventory for any other purpose including, without
limitation, building finished goods for any other third party;
(f) The Buyer shall use the Inventory in priority to other third party
inventory or components to build the finished goods of YorkTel in
accordance with the Six Month Production Schedules and the orders
referred to in 4.02 (e) above;
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(g) The Buyer shall not purchase the Inventory from the Seller (as the
Inventory is to be purchased by YorkTel in accordance with the terms of
the Sale Agreement) unless agreed in writing between the Buyer, YorkTel
and the Seller. The Buyer shall accordingly not be entitled to sell the
Inventory to a third party or otherwise deal with it except as
authorised pursuant to the terms and conditions set out in this section
4; and
(h) The Buyer shall allow the Seller access to it's premises and the
Inventory at any time and from time to time upon prior reasonable
notice from the Seller to enable the Seller to carry out the physical
inventory check referred to in section 4.05 and such other stock checks
as the Seller may require from time to time, in such detail and for
such periods as the Seller shall in it's sole discretion determine and
to take possession of any items of Inventory which the Seller so
wishes. The Buyer shall provide the Seller with reasonable assistance
in carrying out any stock check and/or identifying any items of
Inventory.
4.03MONTHLY REPORTS Within five(5) working days of the last day of each
month the Buyer shall deliver to the Seller (with a copy to YorkTel) an
inventory usage report, a full inventory listing, and a report of
finished goods delivered by the Buyer (together the "Monthly Report")
for the previous month together with a calculation of the total cost of
the items of Inventory used by the Buyer during that month calculated
using the Inventory Component List (the "Total Utilized Inventory
Cost") and a calculation of the total cost of the items of Inventory
used by the Buyer with respect to finished goods (the "Total Purchased
Inventory Cost"). In the event that the Monthly Report illustrates a
difference between the Total Utilized Inventory Cost and the Total
Purchased Inventory Cost (the "Inventory Difference"), the Buyer shall
also include in such report a sufficiently detailed explanation of the
reasons for the Inventory Difference. The Monthly Report shall also
list separately all items of Inventory used by the Buyer to repair or
replace any defective products returned by end users and/or YorkTel to
the Buyer, together with the total cost of such items calculated using
the Inventory Component List (the "Defective Product Cost").
Subject to section 4.04 below, the Seller shall issue the following
invoices in accordance with the Monthly Report:
(a) to YorkTel (against the relevant purchase order), in respect
of the Total Purchased Inventory Cost, such invoice being due
and payable by YorkTel in accordance with the terms and
conditions of the Sale Agreement;
(b) to the Buyer, in respect of the Inventory Difference (provided
that the Seller may, at it's discretion decide whether to
invoice all, part or none of the Inventory Difference (if
any)); and
(c) to the Buyer, in respect of the Defective Product Cost.
The invoices referred to in (b) and (c) shall be due and payable by the
Buyer within thirty days of the invoice date.
For the purposes of producing the Monthly Report and for recording all
Inventory transactions, the Seller shall at the Closing grant the Buyer
access to the Seller's Oracle applications. The Buyer shall use it's
best endeavours to accurately record all transactions
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in the Inventory using Oracle and shall nominate Xxx XxXxxxx (or his
designated representative) to be responsible for this task. The Buyer
shall record the Inventory transactions using Oracle on a weekly basis
(the "Inventory Recording"), until such time as the Inventory has been
depleted. The Seller shall pay the Buyer $2000 per month for the four
months following the Closing Date (the "Set Up Period"), in recognition
of the costs to the Buyer of setting up the logistics required to
produce the Monthly Report. Following the Set Up Period, the Buyer
shall be responsible for carrying out the Inventory Recording at it's
own cost.
4.04 DISPUTE RESOLUTION PROCEDURE. In the event that either the Seller or
YorkTel does not agree with the Monthly Report and the Total Purchased Inventory
Cost, the Seller or YorkTel shall advise the Buyer and the other party of any
discrepancies within ten (10) working days following delivery of the Monthly
Report. The Buyer shall immediately allow the Seller and YorkTel access to it's
premises and the Inventory to carry out any stock check either of them may
require and the Buyer shall provide the Seller and YorkTel with copies of any
documentation the Seller and YorkTel may reasonably require to verify the
discrepancies. The Seller, the Buyer and YorkTel shall use their best endeavours
to agree the Monthly Report and the Total Purchased Inventory Cost within ten
(10) days of the Seller or YorkTel advising the Buyer and the other party of the
discrepancies. In the event that the Monthly Report and the Total Purchased
Inventory Cost cannot be agreed by the Director of Business of Operations of
YorkTel and the General Manager of Xxxxx.connect and the Vice President of Sales
of the Buyer, or their designated representative then the dispute shall be
escalated to the CFO or other appropriate senior officer of each of the Buyer,
the Seller and YorkTel to finally resolve such dispute. The Seller shall issue
an invoice to YorkTel in respect of the Total Purchased Inventory Cost and an
invoice to the Buyer in respect of the Inventory Difference as soon as the Total
Purchased Inventory Cost has been agreed, the invoice in respect of the Total
Purchased Inventory Cost being due and payable by YorkTel in accordance with the
terms of the Sale Agreement and the invoice in respect of the Inventory
Difference being due and payable by the Buyer within thirty days of the date of
invoice.
4.05 PHYSICAL INVENTORY. The Seller shall carry out a physical inventory stock
take of the Inventory on an annual basis either in April or July (as mutually
agreed between the parties). The Buyer shall provide the Seller with such
assistance as it may reasonably require to carry out such physical inventory
stock take.
4.06 RELATIONSHIP WITH HIBBINGS. After the Closing, the Buyer shall comply with
the following terms and conditions in relation to the Hibbings Agreement (and
the Seller shall notify Hibbings accordingly):
(a) Hibbings shall place all orders for items of Inventory (the
"Hibbings Inventory") it requires to manufacture the boards
(the "Hibbings Boards") in accordance with the Hibbings
Agreement, on the Buyer (the Buyer being appointed as the
Seller's agent for these purposes), with a copy of such orders
being sent to the General Manager of Xxxxx.connect;
(b) The Buyer is accordingly authorized by the Seller, as the
Seller's agent, to supply the Hibbings Inventory to Hibbings
in accordance with the orders referred to in 4.05 (a);
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(c) Within five (5) working days of the last day of each month the
Buyer shall deliver to the Seller an inventory usage report of
the Hibbings Inventory together with a calculation of the
total cost of the Hibbings Inventory used by the Buyer during
that month (the "Total Utilised Hibbings Inventory Cost")
calculated using the Inventory Component List (together the
"Hibbings Monthly Report"). The Buyer shall use the Seller's
oracle applications for the purposes of producing the Hibbings
Monthly Report and for recording all Hibbings Inventory
transactions. The Buyer shall use it's best endeavours to
accurately record all transactions in the Hibbings Inventory
using Oracle and shall nominate Xxx XxXxxxx(or his designated
representative) to be responsible for this task. The monthly
payment by the Buyer to the Seller during the Set Up Period
referred to in section 4.03 takes into account the costs of
preparing the Hibbings Report and the Seller shall not pay the
Buyer any contribution towards the Buyer's costs of preparing
the Hibbings Xxxxxx.Xx the event of a dispute in relation to
the Hibbings Monthly Report and the Total Utilized Hibbings
Inventory Cost, the dispute procedure set out in section 4.04
shall be followed (except that YorkTel shall not be involved
in any procedure). Subject to the resolution of any dispute in
accordance with section 4.04, the Seller shall issue an
invoice to Hibbings in respect of the Total Utilized Hibbings
Inventory Cost, such invoice being due and payable by Hibbings
within thirty days of it's date.
(d) Hibbings shall sell the Hibbings Boards to the Buyer who shall
use the Hibbings Boards as components in the products of the
Video Business to be manufactured by the Buyer for YorkTel
pursuant to the Supply Agreement.
(e) In the event that YorkTel chooses to purchase the Hibbings
Inventory pursuant to the Sale Agreement, the Seller shall
procure that the Hibbings Agreement is duly assigned to
YorkTel and the terms and conditions in paragraphs 4.06 (a) -
(d) shall be replaced with a direct relationship between
YorkTel, the Buyer and Hibbings.
4.07 BINDING OBLIGATIONS ON FREEDOM. The Buyer agrees to be bound by, subject
to, and obligated under all of the terms governing the purchase of Inventory by
YorkTel as set out in the Sale Agreement.
4.08 MATERIAL RETURN PROCESS. The Buyer shall operate a material return process
(such process to be agreed with the Seller as soon as reasonably practicable
following the Closing Date) whereby the Buyer shall, as agent for the Seller,
either return any defective Inventory directly to the supplier of the Seller or
assist the Seller in otherwise disposing of such defective Inventory. For the
avoidance of doubt, the Buyer shall be responsible and liable for all defects in
the Inventory and/or finished goods which may arise directly or indirectly as a
result of the Buyer incorporating the Inventory into finished goods.
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ARTICLE 5
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REPRESENTATIONS AND WARRANTIES OF THE SELLER
In order to induce Buyer to enter into this Agreement, Seller hereby represents
and warrants as follows:
5.01 ORGANIZATION, QUALIFICATION AND CORPORATE POWER. The Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. The Seller is duly qualified to conduct business and
is in good standing under the laws of the State of New Jersey. The Seller has
full corporate power and authority to carry on the Video Manufacturing Business
as presently being conducted and to own, lease, use, possess or dispose of the
Purchased Assets, and to enter into this Agreement and to consummate the
transactions contemplated hereby and thereby.
5.02 CORPORATE AUTHORITY. The execution, delivery and performance of this
Agreement has been duly and validly authorized and approved by all necessary
corporate action of the Seller and, assuming the due authorization, execution
and delivery by the Buyer, constitutes the legal, valid, and binding obligation
of the Seller, enforceable against the Seller in accordance with it's terms,
except as enforcement may be limited by bankruptcy, insolvency or other similar
laws of general applicability affecting the enforcement of creditors' rights and
remedies and to general principles of equity.
5.03 NON-CONTRAVENTION. The execution, delivery and performance by the Seller of
this Agreement and the consummation of any of the transactions contemplated
hereby does not and will not: (i) conflict with or violate any provision of the
Articles of Incorporation or By-laws of the Seller; (ii) result in the
imposition of a Lien upon any of the Purchased Assets; (iii) violate any order,
writ, injunction or decree, applicable to the Seller, any of the Purchased
Assets, or any of the Assumed Liabilities; or (iv) violate in any material
respect any statute, law, rule or regulation applicable to the Seller, or any of
the Purchased Assets, or any of the Assumed Liabilities.
5.04 TITLE TO PURCHASED ASSETS. The Seller has good title to all of the
Purchased Assets and valid leasehold interests in all Assets and Equipment
and/or Additional Assets and Equipment leased by them under any personal
property lease, in each case free and clear of Liens except (a) Liens for
current Taxes not yet due and payable or (b) Liens set forth on Schedule 5, if
any.
5.05 PURCHASE ORDERS. Except as set forth in Schedule 2, as at the Closing there
are no open purchase orders in relation to the Video Manufacturing Business
placed by the Seller on a third party.
5.06 LITIGATION. Except as set forth on Schedule 5: (a) there are no claims,
actions, suits or proceedings pending with respect to the Video Manufacturing
Business, the Purchased Assets or the Assumed Liabilities, at law or in equity,
before or by any Governmental Authority or any third party, and (b) there is no
outstanding judgment, order, injunction or decree of any Governmental Authority
or any third party against or affecting the Purchased Assets, and the Seller has
not been a party to or bound by, any such judgment, order, injunction or decree.
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5.07 EMPLOYEES.
Schedule 4 contains a complete list as of the Closing Date, of the name,
position, salary, and length of service of all persons employed by the Seller or
the Seller's Affiliates in the conduct of the Video Manufacturing Business who
are Transferring Employees. As of the Closing Date, the Seller has paid in full
all wages, salaries, commissions, bonuses, benefits, and other compensation due
to any Transferring Employee or otherwise arising under any employment related
policy, practice, agreement, plan, program, statute or law.
5.08 EMPLOYEE BENEFIT PLANS.
(a) Schedule 6 contains a complete list of Seller's Employee Pension Benefit
Plans, Employee Welfare Benefit Plans and any other plans, agreements, policies
or arrangements to which the Seller or any of the Seller's Affiliates
contributes or is obligated to contribute, or under which the Seller or any of
the Seller's Affiliates has or may have any liability for premiums or benefits,
and which benefits any Transferring Employee (the "Seller Employee Benefit
Plans").
(b) To the best of the Seller's knowledge, no circumstance exists and no event
(including any action or the failure to do any act) has occurred with respect to
any Seller Employee Benefit Plan maintained or formerly maintained or
contributed to by the Seller or any of Seller's Affiliates, or to which the
Seller or any of Seller's Affiliates is or has been required to contribute, that
would subject Buyer to liability, or the Purchased Assets to any lien, under
ERISA, the Tax Code, or otherwise, nor will the transactions contemplated by
this Agreement or the Related Agreements give rise to any such liability or
lien.
ARTICLE 6
---------
REPRESENTATIONS AND WARRANTIES OF THE BUYER
In order to induce the Seller to enter into this Agreement the Buyer
makes the following representations and warranties to the Seller.
6.01 ORGANIZATION, QUALIFICATION AND CORPORATE POWER. The Buyer is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New Jersey. The Buyer has full corporate power to enter into this
Agreement and to consummate the transactions contemplated hereby and thereby.
6.02 CORPORATE AUTHORITY. The execution, delivery and performance of this
Agreement has been duly and validly authorized and approved by all necessary
corporate action of the Buyer and, assuming the due authorization, execution and
delivery by the Seller, constitutes the legal, valid, and binding obligation of
the Buyer, enforceable against the Buyer in accordance with their terms, except
as enforcement may be limited by bankruptcy, insolvency or other similar laws of
general applicability affecting the enforcement of creditors' rights and
remedies and to general principles of equity.
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6.03 NON-CONTRAVENTION. The execution, delivery and performance by the Buyer of
this Agreement and the consummation of any of the transactions contemplated
hereby or thereby does not and will not: (i) conflict with or violate any
provision of the Certificate of Incorporation or By-laws of the Buyer; (ii)
require on the part of the Buyer the filing with, or any permit, authorization,
consent or approval of any Governmental Authority; or (iv) violate any order,
writ, injunction, decree, statute, law, rule or regulation applicable to the
Buyer.
6.04 LITIGATION. No action investigation, audit, review, claim, suit or
proceeding by any Governmental Authority or third party is pending or, to the
knowledge of the Buyer, threatened against the Buyer which seeks to delay or
prevent the consummation of the transactions contemplated by this Agreement or
which may adversely affect or restrict the Buyer's ability to consummate the
transactions contemplated hereby or thereby. The Buyer is not bound by any
outstanding judgment, order, injunction or decree of any Governmental Authority
or any third party which would prevent the Buyer from consummating the
transactions contemplated by this Agreement or the Related Agreements.
6.05 SUPPLY AGREEMENT. The Buyer has supplied the Seller with a true and
complete copy of the Supply Agreement to be entered into by the Buyer and
YorkTel as at the Closing and there are no other agreements or arrangements
between the Buyer and YorkTel in relation to the Inventory other than those set
out in the Supply Agreement.
ARTICLE 7
---------
CERTAIN COVENANTS
7.01 ASSIGNMENT OF SOFTWARE LICENSES. At the Closing the Seller shall assign to
the Buyer the Software Licenses which are assignable. Where any Software License
by its terms cannot be assigned, the parties shall discuss other arrangements in
relation to such software license. The Buyer shall assume, perform and be liable
for the liabilities and obligations under the Software Licenses which are
assigned to, or otherwise undertaken by the Buyer which accrue after the Closing
and the Seller shall be responsible and liable for all liabilities and
obligations under the Software Licenses which accrue prior to the Closing.
7.02 TRANSFER OF WARRANTIES. If any of the Purchased Assets are under any
warranty or vendor's indemnification agreement from the manufacturer or the
original seller thereof, the Buyer shall be entitled to the benefit of the
warranty or vendor's indemnification agreement to the extent that it is
available to the transferee of the Seller, and the Seller shall execute such
instruments as may be reasonably required to transfer the warranty to the Buyer.
7.03 FURTHER ASSURANCES AND ACTIONS. From time to time after the Closing, the
Buyer and the Seller shall execute and deliver, or cause to be executed and
delivered, all such other instruments, including instruments of conveyance,
assignment and transfer and to make all filings with and to obtain all approvals
or authorizations of any Governmental Authority and take all other actions as
may be reasonably required or requested within a reasonable time following the
Closing Date in order to effectuate this Agreement and the transactions
contemplated herein.
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7.04 PAYMENT OF TRANSACTION FEES.
(a) Each of the Seller and the Buyer shall be responsible and liable
for the payment of its respective expenses and fees incurred (with the Seller
responsible and liable for the expenses and fees of the Seller's Affiliates) in
connection with the negotiation, preparation, execution or performance of this
Agreement , including, without limitation, all legal, accounting, consulting and
other professional fees and expenses.
(b) The Buyer shall be responsible for the payment of all fees
(including, without limitation, license fees), expenses and other charges
related to the legal transfer of the title (where applicable) of Purchased
Assets to the Buyer. The Buyer shall be responsible for the payment of any fees,
expenses and other charges incurred in relation to providing any required notice
or soliciting or obtaining any consent or authorization with respect to the
transactions contemplated by this Agreement, including, without limitation, any
consent to or authorization for the assignment to the Buyer of any Software
License or the novation of any Software License in favour of the Buyer.
7.05 EMPLOYEES.
(a) The Buyer shall offer immediate employment (so that no period of
unemployment shall occur between employment with the Seller or any of the
Seller's Affiliates prior to the Closing and employment with the Buyer on or
after the Closing) to each of the Transferring Employees identified on Schedule
4, with such employment to commence immediately after the Closing. The terms and
conditions of such employment shall be on no less favourable terms than those
terms and conditions provided by the Seller to the Transferring Employees as at
the Closing provided that the Buyer shall not be required to provide (a) prior
service credit and (b) stock option, stock purchase or other equity plan to the
Transferring Employees.
(b) The Buyer further agrees to offer participation in the Buyer's existing
employee benefit plans generally available to the Buyer's employees as of the
Closing, to the Transferring Employees, and to cause, without interruption in
coverage, the Transferring Employees to become participants in such employee
benefit plans.
(c) Neither the Buyer nor the Seller intend that this Section 7.05 create any
rights or interests, except as between the Buyer, the Seller and the Seller's
Affiliates, and no present or future employees (or any dependents or
beneficiaries of such employees) of either Party (or any of the Seller's
Affiliates) will be treated or deemed as third party beneficiaries in or under
this Agreement.
ARTICLE 8
---------
CLOSING
8.01 THE CLOSING DATE. If the sale and purchase becomes unconditional in
accordance with section 2.02, the Closing shall take place at the offices of the
Seller at 000 Xxxxxxxxxx Xxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx on 29 SEPTEMBER, 2000
or at such other place and time as the Buyer and
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the Seller shall agree upon. Such date is herein called the "Closing Date". On
the Closing Date, the Buyer and the Seller shall make the following deliveries.
8.02 DELIVERIES BY THE BUYER. Subject to the terms and conditions of this
Agreement, at the Closing the Buyer shall deliver or cause to be delivered to
the Seller:
(a) this Agreement;
(b) the sum of $11,250 (eleven thousand, two hundred and fifty dollars) in
cash or immediately available funds in respect of the Additional Assets
and Equipment;
(c) copies of the Buyer's Certificate of Incorporation and By-laws; and
(d) Certificate of Good Standing of the Buyer issued by the Department of
Treasury of the State of New Jersey.
8.03 DELIVERIES BY THE SELLER. Subject to the terms and conditions of this
Agreement, at the Closing the Seller shall deliver to the Buyer:
(a) this Agreement;
(b) copies of the Seller's Articles of Incorporation and By-laws; and
(c) Certificate of Good Standing of the Seller issued by the Secretary of
State of Delaware and the Department of Treasury of the State of New Jersey;
8.04 RIGHTS TO POSSESSION. The Buyer's rights to possession of the Purchased
Assets shall commence once Closing has been completed in accordance with this
Article 8 and the Buyer shall take possession of the Purchased Assets (apart
from the Inventory which shall be delivered to Freedom in accordance with
section 4.02(a)) at the places they are located on the Closing Date.
ARTICLE 9
---------
SURVIVAL OF REPRESENTATIONS WARRANTIES AND COVENANTS
9.01 SURVIVAL. Unless otherwise expressly stated or implied, the
representations, warranties, covenants and agreements of the Parties contained
in this Agreement shall survive the Closing only for a period of twelve months
from the Closing Date.
9.01 NOTICE OF CLAIM. No Party shall have an obligation to indemnify the other
for breach of any representation, warranty, covenant or agreement unless notice
of a claim for indemnification with respect to such breach has been submitted in
accordance with Article 10 prior to the end of the period referred to in 9.01.
If written notice of a claim for breach of any representation, warranty,
covenant or agreement has been given by a party within the notice periods of
Article 10, and prior to the expiration of the survival period referred to in
section 9.01, then the relevant representation, covenant or agreement shall
survive until the claim has been finally resolved.
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ARTICLE 10
----------
INDEMNIFICATION
10.01 INDEMNIFICATION OF THE BUYER. The Seller hereby agrees to indemnify, and
hold harmless each of the Buyer, its Affiliates and their respective officers,
directors, employees, agents, advisors and representatives (the "Buyer
Indemnitees") from and against any Loss incurred by any of the Buyer Indemnitees
arising out of, resulting from or relating to (a) any breach of any
representation or warranty made by Seller in this Agreement (b) any breach or
default in performance by the Seller of any covenant or agreement of the Seller
in this Agreement (c) the Retained Liabilities, (d) the operation of the
Business by the Seller or any of the Seller's Affiliates prior to the Closing.
10.02 INDEMNIFICATION OF THE SELLER. The Buyer hereby agrees to indemnify, and
hold harmless each of the Seller, its Affiliates, including each Seller's
Affiliate, and their respective officers, directors, employees, agents, advisors
and representatives (the "Seller Indemnitees") from and against any Loss
incurred by any of the Seller Indemnitees arising out of, resulting from or
relating to (a) any breach of any representation or warranty made by the Buyer
in this Agreement (b) any breach or default in performance by the Buyer of any
covenant or agreement of the Buyer in this Agreement (d) the Assumed
Liabilities, or (e) the operation of the Business by the Buyer after the Closing
(e) the manufacture by the Buyer of defective finished goods.
10.03 LIMITS ON INDEMNIFICATION.
(a) Neither Party shall be liable to the other under the terms and provisions of
this Article 10 unless and until the aggregate amount of liability for
indemnification claims made by the other party exceeds two thousand five hundred
dollars ($2,500) at which time the defaulting Party shall be liable for the full
amount (and not just the excess) of all indemnification claims made by suffering
Party up to an aggregate amount of twenty five thousand dollars ($25,000).
(b) The amount of any indemnified loss suffered by any Buyer Indemnitee or
Seller Indemnitee shall be reduced by the net effect of any tax-related benefits
related to the claim and/or insurance coverage and/or claim against a third
party which is realized by such indemnified party following the date of such
loss in respect of or as a result of such indemnified loss. Notwithstanding the
foregoing, it is understood and agreed that the determination of the net tax
effect and/or insurance coverage benefit of any indemnified loss and/or third
party claim, if any, shall not delay payment or indemnification of such
indemnified loss by the indemnifying party.
(c) A Buyer Indemnitee or Seller Indemnitee shall provide written notice of any
indemnification claim under Article 9 to the indemnifying party within ten (10)
working days of such party becoming aware of the existence of such
indemnification claim, stating the amount claimed to be due and payable, the
basis of the claim and the provision(s) of the Agreement under which such claim
is asserted. Failure to give notice as required in this Section 10.03 shall not
affect the indemnification obligations of the indemnifying party except to the
extent the indemnifying party can demonstrate such failure materially prejudiced
such party's ability to successfully defend the matter giving rise to the claim.
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10.04 DISCLOSURES. The Buyer shall not be entitled to claim that any fact or
combination of facts constitutes a breach of any of the representations,
warranties, covenants and agreements in this Agreement to the extent that such
fact or combination of facts has been disclosed in the Disclosure Schedules
(including, without limitation, disclosed as exceptions to the Seller's
representations and warranties as set out in schedule 5) or is apparent from any
document which is expressly identified in the Disclosure Schedule and delivered
therewith.
10.05 ENTIRE AGREEMENT. Neither the Buyer nor the Seller have relied on any
representation, warranty or covenant of the other Party or any other person
except as expressly set forth in this Agreement. No representation, warranty or
covenant which is not contained in this Agreement shall give rise to any
liability under this Agreement.
10.06 KNOWLEDGE, SEARCHES AND PUBLIC DOMAIN. The Buyer shall not be entitled to
claim that any fact or combination of facts constitute a breach of any of the
representations, warranties, covenants and agreements in this Agreement and
thereby assert a claim under this Article 10, to the extent that such fact or
combination of facts is (a) within the actual or constructive knowledge of the
Buyer and/or (b) is revealed by the searches or investigations carried out by
the Buyer's attorney or by searches and investigation which should have been
carried out by a prudent Buyer and/or (c) within the public domain
10.07 SUBJECT TO THE AGREEMENT . The Buyer and the Seller acknowledge and agree
that the representations, warranties, covenants and agreements in this Agreement
are given subject to the Agreement and all exhibits, schedules and annexes
thereto and all other documents, acts and transactions entered into or to be
entered into in pursuance or referred to in the Agreement and the provisions of
and all information contained in any such documents.
10.08 DISCLOSURE SCHEDULES The contents of each Disclosure Schedule and all
documents referred to and attached to such Disclosure Schedules shall be deemed
to have been disclosed in relation to every provision of the Agreement to which
they relate so that the Seller is not obliged to cross reference items disclosed
on a Disclosure Schedule to items disclosed on one or more of the other
Disclosure Schedules to this Agreement.
ARTICLE 11
----------
MISCELLANEOUS
11.01 NOTICES. All notices, requests, demands, consents and communications
necessary or required under this Agreement shall be deemed duly given (i) when
personally delivered, (ii) upon receipt of a telephonic facsimile transmission
with a confirmed facsimile receipt, (iii) seven (7) days after having been
deposited, certified or registered mail, return receipt requested, postage
prepaid, or (iv) two (2) business days after having been dispatched by a
nationally recognized overnight courier service, addressed to the Seller or the
Buyer at the following address (or at such other address or number as is given
in writing by the Seller or the Buyer) as follows:
If to the Buyer: Freedom Vertical Technologies Inc
000 Xxxxxxxxxx Xxx West
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Eatontown
New Jersey
USA
Attention: Xxxxx Xxxxx
-------------------------------------
Facsimile No.: 000 000 0000
---------------------------------
If to the Seller: Xxxxx Networks (New Jersey) Inc.
Wexham Springs
Xxxxxxxxx Xxxx
Xxxxxx
Xxxxxx, XX0 0XX
Xxxxxxx
Attention: Legal Department (Kirstie Hallgate)
------------------------------------
Facsimile No.: x00 0000 000000
---------------------------------
11.02 SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the Parties hereto; provided, however, that this Agreement may not be
assigned by any Party without the prior written consent of the other Party.
11.03 WAIVER. None of the terms or conditions of this Agreement may be waived
except in writing, specifically so stating, at any time by the Party which is
entitled to the benefits thereof. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of such provision at any
time in the future or a waiver of any other provision hereof.
11.04 CAPTIONS. The captions set forth in this Agreement are for convenience
only and shall not be considered as part of this Agreement, and shall not affect
in any way the meaning of the terms and provisions hereof.
11.05 ENFORCEABILITY. If any provision of this Agreement as applied to any Party
or to any circumstance shall be adjudged by a court to be invalid or
unenforceable, the same shall in no way affect any other provision of this
Agreement. The Parties intend this Agreement to be enforced as written. If any
provision of this Agreement shall otherwise finally be determined to be
unlawful, then such provision shall be deemed to be severed from this Agreement
and every other provision of this Agreement shall remain in full force and
effect.
11.06 NO THIRD PARTY BENEFICIARY OR RIGHT TO RELY. Except under Article 10, this
Agreement is not intended nor shall it confer any rights or remedies upon any
Person other than the Parties to this Agreement. No third party is entitled to
rely on any representations, warranties, covenants or agreements contained
herein and no Party hereto shall incur any liability or obligation to any third
party because of any reliance by such third party.
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11.07 COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument
11.08 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall in all
respects be interpreted, construed and governed by and in accordance with the
laws of the state of New Jersey. Any judicial proceeding commenced with respect
to this Agreement shall be brought in any court of competent jurisdiction in
Monmouth County, New Jersey or in the United States District Court for the
District of New Jersey, and by execution and delivery of this Agreement, the
Parties hereby consent to the exclusive jurisdiction of any such applicable
court and waive any defense or opposition to such jurisdiction.
11.09 NO STRICT CONSTRUCTION. The language used in this Agreement shall be
deemed the language chosen by the Parties hereto to express their mutual intent,
and no rule of strict construction shall be applied against either Party.
11.10 PUBLIC ANNOUNCEMENTS. The Buyer and the Seller shall mutually agree on the
terms of all press releases, other public announcements, and announcements
relating to this Agreement and the transactions contemplated hereby.
11.11 ENTIRE AGREEMENT; AMENDMENT. This Agreement, including all Schedules
hereto constitute the sole understanding of the Parties with respect to the
matters contemplated hereby and thereby and supercedes and renders null and void
all other prior agreements and understandings, oral or written, between the
Parties with respect to such matters. No amendment, modification or alteration
of the terms and provisions of this Agreement, including the Schedules and
hereto, shall be binding unless the same shall be in writing, specifically so
stating, and duly executed by the Party against whom such would apply.
11.12 CONFIDENTIAL INFORMATION.
(a) For a period of five (5) years after the Closing, Seller will treat and hold
as confidential (and will use its best efforts to cause all Affiliates of Seller
to treat and hold as confidential) all information in its possession concerning
the Buyer, and the Video Manufacturing Business, and refrain from using any such
information, except that Seller may disclose information that becomes public
other than through the act of Seller or an Affiliate of Seller and to the extent
required by applicable law or legal process.
(b) For a period of five (5) years after the Closing, Buyer will treat and hold
as confidential (and will use its best efforts to cause all Affiliates of Buyer
to treat and hold as confidential) all information with respect to the Seller or
the Seller's Affiliates in its possession, other than information concerning the
Video Manufacturing Business, and refrain from using any such nformation, except
that Buyer may disclose information that becomes public other than through the
act of Buyer and to the extent required by applicable law or legal process.
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IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
duly executed and delivered by its duly authorized representative as of the date
first written above.
XXXXX NETWORKS (NEW JERSEY) INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
----------------------------------
Title: General Manager
---------------------------------
FREEDOM VERTICAL TECHNOLOGIES, INC
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
----------------------------------
Title: Vice President
---------------------------------
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SCHEDULE 1
----------
ASSETS AND EQUIPMENT
SCHEDULE 1a
-----------
ADDITIONAL ASSETS AND EQUIPMENT
SCHEDULE 2
----------
PURCHASE ORDERS
SCHEDULE 3
----------
TEST ASSETS
SCHEDULE 4
----------
TRANSFERRING EMPLOYEES
SCHEDULE 5
----------
DISCLOSURES AGAINST THE REPRESENTATIONS AND WARRANTIES OF THE
SELLER: ARTICLE 5
SCHEDULE 6
----------
SELLER'S EMPLOYEE BENEFIT PLANS
SCHEDULES AVAILABLE ON REQUEST
