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EXHIBIT 10.04
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "AGREEMENT") is entered into as of
June 24, 1998 among Symantec Corporation, a Delaware corporation, and its wholly
owned subsidiary Symantec Limited, an Ireland corporation, (collectively,
"SYMANTEC"), and Binary Research Ltd., a New Zealand corporation ("BRL") and its
wholly owned subsidiary, Binary Research International, Inc., a Wisconsin
corporation ("BRI") (collectively BRL and BRI are referred to as "BR") on the
other hand, and, solely for purposes of Section 11.2 and 11.5 hereof, the
undersigned Stockholders. Although this Agreement is entered into as of June 24,
1998, 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 April 1, 1998 (the
"EFFECTIVE DATE"), such that Symantec will have the benefits and obligations
with respect to such transferred assets and assumed liabilities from and after
the Effective Date.
RECITALS
A. BRL is in the business of developing, marketing and distributing
certain software products described in EXHIBIT A hereto (the "BUSINESS"). BRI
acts solely as a sales and service agent for BRL in the Business.
B. The parties intend that, subject to the terms and conditions
hereinafter set forth, Symantec will purchase from BR 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, Symantec will make certain payments to BR.
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, Symantec will purchase from BR and
BR will sell, assign, convey, transfer and deliver to Symantec the following
assets related to the Business (collectively the "ASSETS"):
(a) All the right, title and interest of BR in and to
all software programs of BR, including those described in EXHIBIT A-1 (the
"PROGRAMS"), and in and to all tools of BR, including those described in EXHIBIT
A-2 (the "TOOLS"), including, but not limited to, all source codes, computer
software programs, descriptions, layouts, diagrams, reports, test and other data
and programs, and all related documentation and information, for the current and
all preceding versions of the Programs and the Tools, all Intellectual Property
Rights (as defined
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in Section 3.10 below) therein, including all source code, object code,
marketing rights, patents, patent rights, 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
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.
(b) All right, title and interest of BR in and to all
software code developed on or before the date of this Agreement or in
development as of the date of this Agreement, 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 of BR.
(d) All right, title and interest of BR in and to the
following:
(i) All licenses, investments, obligations,
contracts and other agreements or commitments of BR to the extent that they are
used in connection with the Business (which licenses, contracts and other
agreements are listed by BR in EXHIBIT C hereto), excluding any licenses,
instruments, obligations, contracts or other agreements or commitments
designated in SCHEDULE 1.1 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, contract or other agreement related to the Business that has not
been disclosed to Symantec is discovered after the Closing, Symantec will have
the right to elect whether or not to have such license, contract or agreement
assigned to Symantec. The licenses and other agreements to be assigned to
Symantec hereunder are referred to herein as the "CONTRACTS".
(ii) All tangible assets used by BR in connection
with the Business including but not limited to:
(A) computers, peripherals and other
equipment, storage media,
(B) furniture, file cabinets, tools and
supplies, leasehold improvements
(C) inventories of raw material, work in
process, and finished goods;
(which tangible assets are listed by BR in detail in EXHIBIT D hereto, except
for certain items valued at less than $1,000 each which may aggregated on such
list). For purposes of allocating
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the purchase price for the Assets, the tangible assets will be valued at the net
book value therefor as of the Closing.
(iii) All end-user licenses and associated rights
related 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.
(iv) All domain names, URLs, and phone numbers
used in connection with the Business.
(e) Accurate and complete copies of BR's books and
records, including but not limited to:
(i) stock ledgers, minute books, tax returns and
other corporate documents,
(ii) marketing and sales information, pricing,
marketing plans, business plans, financial and business projections,
(iii) correspondence, production records,
employment records
(iv) contracts with vendors, distributors,
resellers, customers and other parties to the extent related to the Business;
(v) any confidential information which has been
reduced to writing relating to or arising out of the Business, and other files
and records relating to the Business (the "BUSINESS RECORDS"). Notwithstanding
the foregoing, the parties agree that BR may retain the originals of all
Business Records, provided that in the event that such originals are needed for
Symantec's operation of the Business after the Closing, the parties will
cooperate in providing access thereto.
(f) The right to enforce confidentiality,
non-disclosure, employee invention and other proprietary rights agreements
between BR and third parties, employees, consultants and contractors with
respect to the Software Programs and the Intellectual Property Rights.
(g) All cash, marketable securities, accounts, accounts
receivable, notes and notes receivable which arose out of BR's conduct of the
Business and which are payable to BR, including any security held by BR for the
payment thereof, but excluding any of the foregoing which prior to the execution
of this Agreement shall have been placed by BR in the hands of a third party for
collection (provided, however, that any proceeds thereof shall be included);
(h) All prepaid items, deposits and other similar
assets of BRI existing on the Closing Date (the prepaid items, deposits and
other similar items to be conveyed to Symantec pursuant hereto are hereinafter
collectively referred to as the "Prepaid Items");
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(i) Except as specifically provided in Section 1.2
hereof, all other assets and properties of BR whether tangible or intangible,
real or personal.
1.2 Excluded Assets. Those assets of BR listed in EXHIBIT E
hereto will be retained by BR and will not be sold and transferred to Symantec
(the "EXCLUDED ASSETS").
1.3 Conveyance of Assets. From and after the Closing, BR will
not retain any further right in or to the Assets, except (a) for the Excluded
Assets; and (b) for any licenses, contracts or other agreements not transferred
to Symantec as provided in Section 1.1(d)(i) above. BR hereby represents to
Symantec that it owns, and it will convey to Symantec at the Closing, the Assets
free and clear of any and all restrictions, except as set forth above in Section
1.1 or in SCHEDULE 1.3, and free and clear of any and all liabilities,
obligations, liens or encumbrances, except only those liabilities and
obligations which are set forth in SCHEDULE 1.3. The Assets will be delivered to
Symantec at their current locations; intangible assets will be deemed delivered
at BRL's principal place of business.
1.4 Assumption of Liabilities. Symantec will assume, effective
on the Closing, only those liabilities and obligations of BR (a) entered into or
incurred in the ordinary course of business from and after Xxxxx 0, 0000, (x)
under those Contracts transferred to Symantec pursuant to Section 1.1(d)(i)
which are incurred after the Effective Date, (c) that are listed in SCHEDULE
1.4, (d) that constitute Distributor Liabilities as defined in Section 11.2
(provided that Symantec will be entitled to indemnification for Indemnified
Distributor Claims to the extent set forth in Section 11.2 and the Escrow
Agreement), (e) that constitute taxes and charges to be paid by Symantec
pursuant to Section 7.2 (provided that any such taxes paid shall be treated as a
Loss under Section 11.2.3 hereof), (f) that arise under any Employee Plan (as
defined in Section 3.14.3 and that has been disclosed to Symantec in writing),
(g) that constitute warranty claims or service claims based on warranties
disclosed by BR to Symantec pursuant to the Schedules attached hereto, or (h)
that constitute obligations to employees arising from termination of their
employment by BR because Symantec chooses not to hire them (up to the amount of
severance pay for such employees indicated in the Transition Agreement entered
into between the parties even date herewith) other than liabilities based on
express contracts not disclosed on a Schedule hereto. Symantec will not assume
any liabilities or obligations of BR 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 3.14.3 below), or (ii) except as set forth above 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 BR by Symantec for the Assets shall be US$27,500,000.00, payable in
cash or by wire transfer ("PURCHASE PRICE"). BRI is only a sales and service
agent for BRL under an arrangement terminable at will and owns no right, title
or interest in or to any of the Software Programs, Developments or other
Intellectual Property Rights that are part of the Assets or any goodwill.
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Accordingly BRI is being paid only for the book value of its Assets; all of the
remaining Purchase Price is being paid to BRL.
2.2 Payment at Closing. The sum of US$23,500,000.00 shall be
paid to BR by Symantec at the Closing, which sum shall be credited against the
Purchase Price.
2.3 Balance of Purchase Price; Escrow. At the Closing,
Symantec will deposit US$4,000,000.00 (the "ESCROW FUNDS"), in an escrow
account, such Escrow Funds to be held in escrow pursuant to an escrow agreement
(the "ESCROW AGREEMENT") (attached hereto as EXHIBIT F) to secure the
indemnification obligations of BR and the Stockholders. The Escrow Funds will be
the sole and exclusive source for the payment of any indemnification obligations
of BR and/or the Stockholders hereunder. The balance of the Purchase Price shall
be paid to BR or the Stockholders by Symantec in accordance with the Escrow
Agreement.
3. REPRESENTATIONS AND WARRANTIES OF BR
BR hereby represents and warrants that, except as set forth on
the Schedules of Exceptions delivered by BR to Symantec herewith and referred to
below in this Article 3:
3.1 Organization and Good Standing. Each of BRL and BRI is a
corporation duly organized, validly existing and in good standing under the laws
of New Zealand and Wisconsin, respectively. Each of BRL and BRI has the
corporate power and authority to own, operate and lease its properties and to
carry on its business as now conducted and as proposed to be conducted, and is
qualified as a foreign corporation in the jurisdictions listed on SCHEDULE 3.1.
Except as listed on Schedule 3.1, neither BRL, nor BRI owns or leases any real
property, has employees or maintains a place of business in any country other
than New Zealand. The shares of voting capital stock of BRL and BRI are owned by
the persons and entities on Schedule 3.1. Except as listed on Schedule 3.1, no
other person or entity has any right to acquire any shares of capital stock of
BRL or BR. BRL has no subsidiary other than BRI and no ownership interest in any
other entity. BRI has no subsidiaries and owns no ownership interest in any
other entities.
3.2 Power, Authority and Validity.
3.2.1 Each of BRL and BRI has the corporate right, power,
legal capacity and authority to enter into and perform its respective
obligations under this Agreement. The execution, delivery and performance of
this Agreement by BRL and BRI have been duly and validly approved by the Board
of Directors of BRL and BRI, respectively, and by the required vote of the
holders of their respective capital stock.
3.2.2 Except as set forth in Schedule 3.2.2, no filing,
authorization or approval, governmental or otherwise, is necessary to enable BRL
or BRI to enter into, and to perform its respective obligations under, this
Agreement, except for consents required under the Contracts or other agreements,
instruments or commitments disclosed in Schedule 3.3 as exceptions to the
representation made in the last sentence of Section 3.3 below.
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3.2.3 This Agreement constitutes the valid and binding
obligation of BRL and BRI enforceable against it in accordance with its terms,
except as to the effect, if any, of (a) applicable bankruptcy and other similar
laws affecting the rights of creditors generally and (b) rules of law governing
specific performance, injunctive relief and other equitable remedies.
3.3 No Violation. Except as set forth on SCHEDULE 3.3, 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 BRL or BRI,
respectively, as currently in effect, (b) in any material respect, any Contract
or any other agreement, instrument or commitment to which BRL or BRI,
respectively, 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 BRL or BRI. The consummation of this Agreement and Symantec'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
based upon any matter described in subparts (a) through (c) and (x) through (y)
upon any such Assets or the exercise of any such rights, other than as set forth
in Schedule 3.3. Except as set forth in Schedule 3.3, neither BRL nor BRI is a
party to, or otherwise subject to any provision contained in, any instrument
evidencing any indebtedness, any agreement or other instrument which restricts
or otherwise limits either BRL's or BRI's right to transfer the Assets or will
restrict Symantec's use thereof after transfer to Symantec.
3.4 Litigation. Except as set forth in SCHEDULE 3.4, there is
no action, proceeding or investigation pending or threatened in writing against
BRL or BRI before any court or administrative agency that, if determined
adversely to BRL or BRI, may reasonably be expected to have a material adverse
effect on (a) the present or future value of the Assets, (b) the transfer of any
of the Assets to Symantec under this Agreement or (c) the ownership or use, in
any respect, of any of the Assets by BRL or BRI or Symantec. Except as set forth
in Schedule 3.4, to the actual knowledge of BR, there is no substantial basis
for any person, firm, corporation or entity to assert a claim against BRL or
BRI, or against Symantec as successor in interest to BRL or BRI, based upon
ownership or rights to ownership of any of the Assets.
3.5 BR Financial Information. BR has delivered to Symantec as
SCHEDULE 3.5A the audited consolidated financial statements of BR at May 31,
1997 and for the year then ended and the unaudited consolidated financial
statements of BR at March 31, 1998 and for the 10 months then ended
(collectively, the "BR FINANCIAL STATEMENTS"). The BR Financial Statements, in
all material respects, (a) are in accordance with the books and records of BR,
(b) fairly and accurately represent the financial condition of BR, and do not
misrepresent the assets of BR, and (c), have been prepared substantially in
accordance with New Zealand generally accepted accounting principles
consistently applied in accordance with past practice ("GAAP"), and fairly and
accurately represent the results of operations for the periods specified
therein, provided that the unaudited consolidated financial statements lack
notes and year end adjustments. Except as set forth in SCHEDULE 3.5C, to BR's
knowledge (after such inquiry as would be required under GAAP), BR has no
material debt, liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, that is not
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reflected, reserved against or disclosed in the BR Financial Statements, except
for (i) those that are not required to be reported in accordance with GAAP and
are disclosed by BR in writing to Symantec in Schedule 3.5C hereof and (ii)
those that may have been incurred by BR after March 31, 1998 in the ordinary
course of its business, consistent with past practice.
3.6 Taxes. BRL and BRI have filed all federal, state, local
and foreign tax and information returns related to its business or any of the
Assets that are required to be filed, and BRL and BRI has each paid all taxes
required to be paid in respect of all periods for which such returns have been
filed. True and complete copies of all such tax and information returns have
been provided to Symantec. BRL and BRI are 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. No tax return of BRL or BRI has ever been audited by any tax agency or
authority. For the 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 Schedule
3.7, neither BR 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, to BR's actual knowledge, there is no basis for any such claim or
action. Except as set forth in SCHEDULE 3.7, to BR's best knowledge, there are
no contracts for maintenance, bug fix, development or warranty obligations,
other than warranties provided in connection with BR's standard shrink-wrap end
user license agreement.
3.8 Absence of Certain Changes. Since March 31, 1998, except
as set forth in SCHEDULE 3.8, there has not been with respect to BR:
(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 can 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) to the actual knowledge (based on such inquiry as
is required under GAAP) of BR, any material obligation or liability incurred by
BR 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 properties or assets of BR or any of the Assets;
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(e) any damage, destruction or loss, whether or not
covered by insurance, materially and adversely affecting the properties, assets
or Business of BR;
(f) any material labor dispute or claim of material
unfair labor practice; any change in the compensation payable or to become
payable to any of BR's officers, directors, employees, agents, consultants or
contractors; or any bonus payment or arrangement made to or with any of such
officers, directors, employees, agents, consultants or contractors (except as
previously disclosed in writing to Symantec);
(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 by BRL or BRI
to any of its respective officers, directors, and to the best of BR's knowledge,
its employees, agents, consultants or contractors, or any loans or advances made
to any of such officers, directors, employees, agents, consultants or
contractors , 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 BR, including all licenses, instruments,
obligations, contracts and other agreements or commitments whereby BR 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. BR has provided to Symantec 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 are valid, binding,
enforceable and in full force and effect in all material respects and will
continue to be so on identical terms to Symantec'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 SCHEDULE 3.9A. Except as
indicated on Schedule 3.9A, BR is not (or, but for the passage of time, would
be) in breach of or default under any material term of any agreement,
obligation, contracts or commitment listed in 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 Symantec pursuant
to this Agreement.
(b) EXHIBIT D contains an accurate and complete list of
all the tangible assets owned by BR and used in connection with the Business
(the "TANGIBLE ASSETS"), including computers, peripherals and other equipment,
furniture, file cabinets, tools and supplies (referred to by type of item where
individual items are valued at less than $2,000 each). BR owns and has good and
marketable title to all of the Tangible Assets, free and clear of all liens,
charges or
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encumbrances (other than for taxes not yet due and payable), except as set forth
in SCHEDULE 3.9B.
3.10 Intellectual Property. As used herein the term
"INTELLECTUAL PROPERTY RIGHTS" means, collectively, all of the following
worldwide intangible legal rights, including those existing or acquired by
ownership, license (to the extent such can be sublicensed or assigned) 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 BR 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 BR 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, owned by BR as of the Closing Date, including all registrations and
applications therefor (the "TRADEMARK RIGHTS"); (iv) all trade secrets and
know-how BR owns or otherwise has the right to use and transfer to Symantec; (v)
all technology and other intellectual or industrial property and proprietary
rights of BR used in the conduct of the Business; (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) SCHEDULE 3.10 contains a complete and accurate list
of BR's Patent Rights, registered Copyright Rights and Trademark Rights. BR has
provided Symantec with copies of all such registrations and applications and any
licenses granted or received with respect thereto. BR is the sole and exclusive
owner of or has the exclusive right to use pursuant to license, sublicense,
agreement or other valid permission, the Assets and all Intellectual Property
Rights necessary for the operation of the Business as presently conducted and as
presently proposed to be conducted. BR owns and has good and marketable 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), except as set forth in Schedule 3.10.
(b) Except as indicated in Schedule 3.10, the Assets
include all assets, properties and intellectual property and proprietary rights
necessary to enable Symantec to continue to develop the Developments and to
manufacture, market, distribute, use, license and sell the Software Programs and
to otherwise conduct the Business in the manner in which such business is
conducted by BR as of this date and as it is presently proposed to be conducted
by BR.
(c) BR has taken measures which it believes are
reasonable to protect the Intellectual Property Rights. BR has no actual
knowledge of any infringement of any of the Intellectual Property Rights by any
third party or any instance in which any such measures to
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protect any of the Intellectual Property Rights have not been taken or have
failed in any material respect. To the best of BR's knowledge, BR is not aware
of any material loss, cancellation, termination or expiration of any such
Intellectual Property Rights, except as set forth in Schedule 3.10. All fees to
maintain BR'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) BR has delivered to Symantec copies of all
agreements (or the forms thereof if a standard form is used) entered into by its
present and past employees, consultants and independent contractors with respect
to the Intellectual Property Rights and protection of confidential information.
Except as set forth in Schedule 3.10, all present and past employees,
consultants and independent contractors have entered into such agreements. To
BR's best knowledge, BR is not using 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 BR prior to the Closing will not, and
the Software Programs do not and will not, and the Developments do not, cause BR
or Symantec 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, and BR 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 which could be expected to have a material adverse effect on
use or ownership of any of the Assets or the conduct of the Business by BR or
Symantec; provided that, as to Patent Rights, Trademark Rights and other
intellectual property rights that may be violated without actual or constructive
notice of such rights, the foregoing representations in this subsection (e) are
made solely to the actual knowledge of BR.
(f) To BR'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 BR and no one
other than BR has any interest therein or right thereto, including the right to
royalty or other payments.
(g) Except as set forth in Schedule 3.4, no Contracts
or other agreements of BR restrict BR's ability to do business in any
jurisdiction or with respect to any market or industry.
(h) Except as indicated in Schedule 3.10, BR 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) BR has made a full, complete and accurate
disclosure to Symantec regarding the state of development of the Developments
and the Software Programs, including a list indicating all known bugs and
deficiencies and their current status of resolution. The
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Software Programs and Developments are otherwise sold "as is", without
representation or warranty, express or implied, including the implied warranties
of merchantability and fitness for a particular purpose.
(j) All of the Software Programs and Developments 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 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 BR's actual knowledge, except
as set forth on Schedule 3.4, (a) BR has good commercial working relationships
with its suppliers and since January 1, 1997 no supplier accounting for two
percent (2%) or more of BR's purchases of supplies has canceled or otherwise
terminated its relationship with BR, decreased or limited materially its
materials supplied to BR from any corresponding period or, to BR's actual
knowledge, threatened to take any such action, and (b) no customer of BR has
threatened to cancel its agreement with BR or to bring an action or claim
against BR.
3.12 Compliance with Xxxx.Xx BR's actual knowledge, except as
set forth on Schedule 3.4, BR has complied, or prior to the Closing Date will
have complied, and is or will be at the Closing Date, in compliance, in all
respects material to BR, 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 BR, 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, pertaining to (i) the sale, licensing, leasing, ownership or management
of the Assets, (ii) employment or employment practices, terms and conditions of
employment, or wages and hours, or (iii) safety, health, fire prevention,
environmental protection (including toxic waste disposal and related matters
described in Section 3.20 hereof), building standards, zoning or other similar
matters relating to BR, the Business or any of the Assets, 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. BR has received 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.
3.13 Certain Transactions and Agreements. Except as set forth
in SCHEDULE 3.13, no person who is an officer or director of BR, or a member of
any officer's or director's immediate family, has any direct or indirect
ownership interest in any firm or corporation that competes with BR (except with
respect to any interest in less than 3% of the outstanding voting shares of any
corporation whose stock is publicly traded). Except as set forth in Schedule
3.13,
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no person who is an officer or director of BR, or any member of any officer's or
director's immediate family, is directly or indirectly interested in the
business of BR or the Assets or in any material contract or informal arrangement
with BR, except for compensation for services as an officer, director or
employee of BR.
3.14 Employees.
3.14.1 Except as set forth in SCHEDULE 3.14.1, BR 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).
3.14.2 BR 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, (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. BR has good
labor relations. BR has no knowledge that any of its employees intends to leave
BR's employ (other than to become a Symantec employee pursuant to offers made by
Symantec to selected employees of BR).
3.14.3 SCHEDULE 3.14.3 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 BR with respect to any employee, independent contractor or
consultant engaged in any aspect of its business (the "EMPLOYEE PLANS"). To the
extent requested by Symantec, BR has delivered true and complete copies of all
the Employee Plans to Symantec or Symantec's counsel. Each of the Employee
Plans, and its administration, are, to BR's actual knowledge, in compliance with
all applicable federal, state, local and other governmental laws and ordinances,
orders, rules and regulations, except where the failure to so comply could not
reasonably be expected to have a material adverse effect upon the financial
condition or results of operations of BR. No liability with respect to the
Employee Plans will pass to Symantec under the laws of New Zealand or other
applicable laws by virtue of Symantec consummating the transactions contemplated
by this Agreement. Except as set forth in Schedule 3.14.3, no employee of BR
engaged in any aspect of its business has made medical claims since January 1,
1997 for $50,000 or more, in the aggregate, or, to BR's actual knowledge without
any investigation, has any chronic illness.
3.14.4 No employee of BR is, to the actual knowledge of
BR, 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 BR or to use trade secrets of proprietary information
of others.
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3.14.5 SCHEDULE 3.14.5, which BR has delivered to
Symantec, contains a list of all employees, officers, directors, agents,
consultants and contractors of BR (the "BR EMPLOYEES"). BR has separately
delivered to Symantec information relating to the current compensation (salary
and any bonus or other special compensation arrangements), title and
responsibilities of the BR Employees as of the date of this Agreement. BR has
made no representation to any director, officer, employee, consultant or
independent contractor regarding future employment by Symantec.
3.15 Documents. BR have made available to Symantec for
examination all documents and information listed or identified in the exhibits
or schedules to this Agreement or otherwise called for by this Agreement and all
documents which have been requested in writing by Symantec or Symantec's legal
counsel, including copies of the respective charter documents of BR as currently
in effect.
3.16 Books and Records. The books, records and accounts of BR
(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 and
accurately and fairly reflect the transactions and dispositions of or related to
BR, the Business or the Assets, as the case may be, and (d) in all material
respects accurately and fairly reflect the basis for the BR Financial Statements
and the BR Financial Information.
3.17 No Brokers. BR 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, other than as
fully disclosed in SCHEDULE 3.17.
3.18 Insurance. BR has no policies of insurance in effect.
3.19 Government Contracts. BR has no actual 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 BR, the Business or any of the Assets (and/or
Symantec as successor in interest to the Assets) and any Government Contract
Party or (b) any suspension, debarment or contract termination, or proceeding
related thereto. BR has no actual knowledge of any act or omission related to
the marketing, licensing or selling to any Government Contract Party of any of
BR 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 BR's rights in and to any of the Assets. For purposes
of this Section 3.19, the term "GOVERNMENT CONTRACT PARTY" means any independent
or executive agency, division, subdivision, audit group or procuring office of
the United States, New Zealand or any other federal government, including any
prime contractor of the federal government and any higher level subcontractor of
a prime contractor of the federal government, and including any employees or
agents thereof, in each case acting in such capacity.
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3.20 Environmental Matters.
3.20.l BR 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 BR or any of its
predecessors-in-interest (collectively, the "FACILITIES"), in accordance, to
BR's actual knowledge, with and in material compliance with all Environmental
Laws (as hereinafter defined). "ENVIRONMENTAL LAWS" means all United States, New
Zealand 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.
3.20.2 For the purposes of this Section 3.20, 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 BR, the Business or the Assets.
3.20.3 To BR's actual knowledge, during the period that BR
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 BR Financial Statements. BR has no actual 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 BR
having taken possession of any of such premises).
3.20.4 To BR's actual knowledge, there are no outstanding
orders, injunctions or decrees against BR, nor are there any pending or
threatened investigations of any kind against BR, concerning any Environmental
Laws and there has been no litigation, proceeding or administrative action
brought or threatened in writing against BR, or any settlement reached by BR
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.
3.21 Disclosure. To BR's knowledge (based on the level of
scienter applied for claims under Section 10(b) of the Securities Act of 1933,
as amended), this Agreement, its exhibits and schedules, and any of the
certificates or documents to be delivered by BR to Symantec 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 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.
3.22 Solvency. BR is solvent and neither intends or expects to
file or seek relief under bankruptcy, insolvency, creditors' relief or similar
laws.
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4. REPRESENTATIONS AND WARRANTIES OF SYMANTEC
Symantec hereby represents and warrants, that, except as set
forth on the Symantec Schedule of Exceptions delivered by Symantec to BR as
SCHEDULE 4.0:
4.1 Organization and Good Standing. Symantec 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 and as
proposed to be conducted.
4.2 Power, Authorization and Validity.
4.2.1 Symantec has the corporate right, power, legal
capacity 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 Symantec's Board of Directors, and such approval,
constitutes the only corporate action required to authorize the execution,
delivery and performance by Symantec of this Agreement.
4.2.2 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 such filings as may be required to
comply with the laws of New Zealand.
4.2.3 This Agreement constitutes the valid and binding
obligation of Symantec, enforceable against Symantec in accordance with its
terms, except as to the effect, of any, of (a) applicable bankruptcy and other
similar laws, affecting the rights of creditors generally and (b) 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
certificate of incorporation or bylaws of Symantec, as currently in effect, (b)
in any material respect, any agreement, instrument or commitment to which
Symantec is a party or by which Symantec is bound, or (c) any federal, state,
local or foreign judgment, writ, decree, order, statute, rule or regulation
applicable to Symantec or its assets or properties.
4.4 No Brokers. 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 transactions provided for herein or therein.
4.5 No Reliance. Symantec is not relying on any statements,
representations, warranties, disclosures or facts not set forth in this
Agreement and the exhibits and schedules hereto in entering into or performing
its obligations under this Agreement. Symantec has had the opportunity to ask
further questions concerning the matters disclosed by BR hereunder and has made
such inquiries as it deemed appropriate.
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5. BR 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. BR will promptly advise Symantec in
writing (a) of any event occurring subsequent to the date of this Agreement
which would render any representation or warranty of BR 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, the Business or BR's results of operations or financial
condition.
5.2 Operation of Business. Commencing upon execution of this
Agreement, BR shall operate its business in the ordinary course, consistent with
past practices. If BR becomes aware of a material deterioration in the
relationship with any material customer or supplier of BR, it will promptly
bring such information to the attention of Symantec in writing and, if requested
by Symantec, will exert reasonable efforts to restore the relationship. BR will
provide Symantec with current access to all books, records and information with
respect to the Assets and the operation of BR's business.
5.3 Conduct of Business. Except as provided otherwise herein
or as approved or as recommended by Symantec, BR will not, without the prior
written consent of either the Vice President, Planning & Analysis of Symantec or
the Chief Financial Officer of Symantec:
(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 make any commitment) regarding the Business or any of the Assets
that involves an expense of BR in excess of $10,000 or a capital expenditure by
BR in excess of $10,000;
(c) encumber or permit to be encumbered any of the
Assets;
(d) sell, transfer, assign, convey or otherwise dispose
of any of the Assets;
(e) 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;
(f) except as previously disclosed to Symantec in
writing, pay any bonus, royalty, increased salary or special remuneration
(except pursuant to existing arrangements heretofore disclosed in writing to
Symantec) to any employee, consultant or independent contractor who renders or
has rendered services to BR or enter into any new employment or consulting
agreement with any such employee, consultant or independent
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contractor, or enter into any new agreement or plan of the type described in
Section 3.14.3 with respect to any such employee, consultant or independent
contractor;
(g) change accounting methods except as necessitated by
changes which BR is required to follow in generally accepted accounting
principles;
(h) amend or terminate any Contract or other agreement
or license to which it is a party (except pursuant to arrangements previously
disclosed in writing to Symantec) except for any change to any Contract,
agreement or license which has no adverse effect on BR, the Business or any of
the Assets;
(i) lend any amount to any officer, employee,
consultant or independent contractor 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) merge, consolidate or reorganize with, or acquire
any entity;
(l) amend its charter documents, to the extent such
action will adversely affect the Assets;
(m) agree to any audit assessment by any tax authority
or file any federal or state income or franchise tax authority or file any
federal or state income or franchise tax return, unless copies of such returns
have been delivered to Symantec for its review prior to filing;
(n) license any Intellectual Property Rights, except in
the ordinary course of business consistent with past practice, or license,
encumber or otherwise dispose of any of the Assets or any rights thereto;
(o) enter into any other agreements or commitments
affecting any of the Assets;
(p) hire any new BR employee or terminate the
employment of any existing BR Employee without notice of the same to Symantec or
encourage any BR Employee to accept employment with any third party (other than
Symantec with respect to those employees who are offered employment by
Symantec);
(q) effect a material change in any insurance coverage
with respect to its business or any of the Assets; or
(r) 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).
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5.4 Employee Offers. BR hereby consents to Symantec extending
offers of employment to all or any lesser number of BR Employees, such offers to
be contingent upon the Closing. To facilitate such process, BR will cooperate
with Symantec in identifying those BR Employees that Symantec may wish to hire
and will provide Symantec with reasonable access to and the opportunity to meet
and interview any BR Employee for the purpose of negotiating offers of
employment contingent upon the Closing. BR will use its reasonable efforts to
retain BR Employees as employees through the Closing Date and assist Symantec in
securing the employment, commencing on the Closing Date, of those BR Employees
to whom Symantec (or an affiliate designated by Symantec) makes offers of
employment. BR hereby waives, with respect to the employment by Symantec of such
BR Employees who accept offers of employment from Symantec, (a) any claims or
rights BR may have against Symantec with respect thereto and (b) against any
such employee under any non-competition, confidentiality or employment
agreement, to the extent such provision would otherwise apply to Symantec. BR
understands and acknowledges that any such BR Employees hired by Symantec shall
be treated as "new hires" and Symantec's sole obligation to BR or such BR
employees shall be as set forth in the Transition Agreement. If the Closing does
not occur for any reason, Symantec will not recruit, attempt to hire, solicit or
assist others in recruiting, attempting to hire or soliciting any BR Employee at
any time up to and including June 30, 2000.
5.5 Regulatory Approvals. BR 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 New Zealand, the United States or otherwise, or which
Symantec may reasonably request, in connection with the consummation of the
transactions provided for in this Agreement. BR will use reasonable efforts to
obtain or assist Symantec in obtaining all such authorizations, approvals and
consents, and Symantec agrees to pay the reasonable costs for the same.
5.6 Necessary Consents. BR will, at its own expense (other
than as provided in Section 5.5), use 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 Symantec to purchase the Assets at the Closing and to
have full use of the Assets after the Closing.
5.7 Litigation. BR 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 BR or threatened
against BR which could have a material adverse effect on the Assets or the
ability of BR to consummate the transactions contemplated by this Agreement.
5.8 No Other Negotiations. From the date hereof until the
termination of this Agreement (provided such termination is not in breach of
this Agreement) or the consummation of the sale of the Assets at the Closing, BR
will not, directly or indirectly, solicit, facilitate or encourage any offer,
inquiry or proposal received from any party other than Symantec, or enter into
any negotiations or discussions or provide any information to any third party
(including
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information with respect to this Agreement or transactions provided for herein),
concerning the possible disposition of all or any substantial portion of the
Assets by merger, sale or any other means, will otherwise solicit, facilitate or
encourage any such disposition or will authorize or permit any officer,
director, employee, affiliate, agent or representative of BR, or any other
person, on its behalf, directly or indirectly, to take any of the foregoing
actions.
5.9 Access to Information. BR will provide Symantec and its
agents with reasonable access to the files, books, records and offices of BR,
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 BR in this Agreement. BR will provide
Symantec 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 BR. BR will cause its accountants to cooperate with Symantec and
its agents in making available all financial information reasonably requested
relating to the Business or the Assets, including without limitation the right
to examine all working papers pertaining to all financial statements prepared or
audited by such accountants.
5.10 Satisfaction of Conditions Precedent. BR will use
reasonable efforts to satisfy or cause to be satisfied all the conditions
precedent which are set forth in Article 9. BR 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.
5.11 Encumbrances. BR will use its reasonable best efforts to
secure and preserve good and marketable title in BR'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.
5.12 Future Agreements. If BR enters into any material
agreement between the date of this Agreement and the Closing related to the
Business or the Assets, at the request of Symantec, BR agrees to include any
such agreement within the Contracts.
6. SYMANTEC PRECLOSING COVENANTS
Symantec covenants to and agrees with BR to comply with the
following covenants during the period from the date of this Agreement until the
Closing:
6.1 Advice of Changes. Symantec will promptly advise BR in
writing of any event occurring subsequent to the date of this Agreement that
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,
untrue or inaccurate in any material respect. In addition, Symantec will
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promptly deliver to BR a copy of each filing made with the SEC and each press
release or communication with Symantec's stockholders made prior to the Closing.
6.2 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 8, and Symantec 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. Symantec will execute and file, or
join 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 New Zealand, the United States or otherwise, or which
BR may reasonably request, in connection with the consummation of the
transactions provided for in this Agreement. Symantec will, at its own expense,
use reasonable efforts to obtain all such authorizations, approvals and
consents.
6.4 No Additional Payments. Symantec will have no obligation
to pay any expenses of BR or to fund the operations of BR with respect to the
Business, the Assets or otherwise.
6.5 Necessary Consents. Symantec will use 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. Symantec will notify BR 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 that would have a material adverse effect on
Symantec'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 Fenwick & West LLP, Two
Xxxx Xxxx Xxxxxx, 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, at such time as all
conditions to Closing have been satisfied or waived by the appropriate parties,
(x) BR will deliver to Symantec (i) instruments of transfer, in form and
substance reasonably satisfactory to Symantec and its counsel, evidencing the
sale, assignment, conveyance and transfer to Symantec of the Assets and (ii) the
certificates and other documents required pursuant to Section 9 below, and (y)
Symantec will (i) deliver to BR the
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certificates and other documents required pursuant to Section 8 below, (ii) pay
to BR the Closing Payment, and (iii) deposit the Escrow Funds in escrow.
7.2 Delivery of Documentation; Taxes. BR will deliver and
transfer to Symantec 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, and will represent at the Closing that all such
copies, work in progress, documentation and other materials have been so
delivered. Symantec 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 Symantec hereunder (the
"TRANSFER TAXES"), which Transfer Taxes will be treated as a Loss under Section
11.2.3 hereof.
7.3 Further Assurances. If, at any time after the Closing,
Symantec reasonably considers or is advised that any further deeds, assignments
or assurances are reasonably necessary or desirable to vest, perfect or confirm
in Symantec title to any of the Assets, BR 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 Symantec and
otherwise to carry out the purposes of this Agreement.
8. CONDITIONS TO OBLIGATIONS OF BR
The obligations of BR 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 BR, but only in a writing signed by BR):
8.1 Accuracy of Representations and Warranties. The
representations and warranties of Symantec set forth in Article 4 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
Symantec to BR in writing, and accepted by BR, 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. BR shall have received a certificate to such effect executed by
Symantec's Chief Financial Officer.
8.2 Covenants. Symantec shall have performed and complied in
all material respects with all of its covenants contained in Article 6 on or
before the Closing. BR shall have received a certificate to such effect executed
by Symantec's Chief Financial Officer.
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, 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 Escrow. BR shall have received the Escrow Agreement
executed by the parties thereto.
9. 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):
9.1 Accuracy of Representations and Warranties. The
representations and warranties of BR 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 BR
to Symantec in writing, and accepted by Symantec, prior to the Closing Date) as
of the Closing with the same force and effect as if they had been made at the
Closing, and Symantec shall have received a certificate to such effect executed
by the Chief Financial Officer of BR.
9.2 Covenants. BR 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 Symantec shall have received a
certificate to such effect signed by the Chief Financial Officer of BR.
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, 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.
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 Symantec's ownership and use
thereof.
9.6 No Material Adverse Change. No material adverse change
shall have occurred after March 31, 1998 in the financial or business conditions
or liabilities of BR or in the Assets.
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9.7 Requisite Approvals. The principal terms of this Agreement
shall have been approved by the stockholders of BR.
9.8 Ancillary Agreements. An Employment Agreement in the form
of EXHIBIT G hereto, with such changes as may be approved by Symantec, shall
have been executed and delivered to Symantec by Xxxxxx Xxxxxx Xxxxxxx.
9.9 Status of Software Programs. Symantec shall have received
the Software Programs.
9.10 Release of Obligations. BR shall have executed and
delivered agreements or instruments, in such form as may be reasonably
satisfactory to Symantec, releasing those BR Employees who accept employment
(either as of the Closing or thereafter) with Symantec or any of its affiliates
from any obligations of such employees to BR 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 Symantec or its subsidiaries.
9.11 Opinion of Counsel to BR. Symantec shall have received
from Blanc Xxxxxxxx Xxxxxxxx & Kronstadt, United States counsel to BR, an
opinion substantially in the form of EXHIBIT H1 hereto, from Xxxxxxx Van Dueren
Norris & Rieselbach, S.C, United States counsel to BR Xxxxxxxx. an opinion
substantially in the form of EXHIBIT H2 hereto, and from Xxxx Gully Buddle Xxxx,
New Zealand counsel to BRL, an opinion substantially in the form of EXHIBIT H3.
9.12 Documents. Symantec shall have received all written
consents, assignments, waivers, authorizations or other certificates reasonably
deemed necessary by Symantec's legal counsel to provide for the assignment to
Symantec of the Contracts and the continuation in full force and effect of the
Contracts, for the sale, assignment, and transfer to Symantec of the other
Assets, for Symantec's unrestricted and encumbered use thereof (except for those
encumbrances listed in Schedule 1.2 hereof ), and for Symantec to consummate the
transactions contemplated hereby; provided that none of the Contracts will be
adversely affected by the transactions provided for herein.
9.13 Escrow. Symantec shall have received the Escrow Agreement
executed by the parties thereto.
10. TERMINATION OF AGREEMENT
10.1 Prior to the Closing.
10.1.1 This Agreement may be terminated at any time prior
to the Closing by the mutual written consent of each of the parties hereto.
10.1.2 Unless otherwise specifically provided herein or
agreed in writing by the parties hereto, this Agreement will be terminated if
all conditions to the Closing have not
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been or cannot reasonably be satisfied or waived, on or before July 3, 1998;
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:
10.2.1 By Symantec if any of the conditions precedent to
Symantec's obligations set forth in Section 9 above have not been fulfilled or
waived at and as of the Closing or if BR is in material breach of this
Agreement; or
10.2.2 By BR 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 Symantec 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 January 30, 1998
(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.
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 operative and in full force and effect for twelve months after the
Closing in accordance with their respective terms.
11.2 Indemnification.
11.2.1 Subject to Section 11.2.6, Symantec will indemnify,
defend and hold harmless BR and its officers directors, and shareholders, and
their administrators, successors and assigns, against any Loss (as defined
below) to which any such person may become subject, insofar as such Loss (or
actions in respect thereof) arise out of or are based upon (a) any material
breach by Symantec of its obligations or warranties under this Agreement or any
material misrepresentation by Symantec under this Agreement, (b) operation of
the Business or use of the Assets after the Closing and (c) any liabilities
expressly assumed by Symantec hereunder. Symantec will reimburse any such person
or entity for any legal or any other expenses reasonably incurred by such person
in connection with investigating or defending any
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such loss, claim, damage, liability or action, to the extent that the indemnity
provided for above applies thereto. No recovery will be available under this
Section 11.2.1 for lost profits or consequential damages.
11.2.2 Subject to Section 11.2.6, BR and the stockholders
of BR executing this Agreement (the "STOCKHOLDERS") 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 material
breach by BR of its obligations or warranties under this Agreement or any
material misrepresentation by BR under this Agreement, (b) any liabilities of BR
not expressly assumed by Symantec hereunder, (c) except as expressly assumed by
Symantec herein, the operation of the Business at any time on or prior to the
Effective Date (including any taxes related to BR'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 BR employees, former
employees, agents or representatives based on claims arising prior to the
Closing Date, other than those expressly assumed by Symantec, (d) Software
Programs or other products or services sold, licensed or otherwise provided by
BR to third parties on or prior to the Closing, other than warranty and service
claims based on warranties disclosed to Symantec 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
BR's representations and warranties in Section 3.10 hereof, (f) failure of BR to
comply with any Environmental Law or (g) which constitute Indemnified
Distributor Claims (subject to the limitations herein and the provisions of
Section 11.2.6). BR and the Stockholders 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 11.2.2 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 $150,000 (the "BASKET"), in which event BR and the
Stockholders shall be liable to indemnify such indemnified party or parties for
all of the Loss. The basket shall not apply to any Indemnified Distributor Claim
and Indemnified Distributor Claims shall not apply against the Basket. The
amount of any Transfer Taxes paid by Symantec pursuant to Section 7.2 hereof
shall be included as a Loss in the calculation of the Basket for the purposes of
this Section 11.2.2. In addition to the foregoing, the Escrow Funds shall be the
sole and exclusive source of payment of any indemnification claims and the
liability of BR and the Stockholders for such claims will be limited to the
amount of Escrow Funds. In no event will BR or the Stockholders have liability
for claims under Section 11.2.2 other than out of funds in the Escrow as
provided herein and in the Escrow Agreement or for amounts in excess of such
funds.
11.2.3 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
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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. As used in this Agreement, "DISTRIBUTOR LIABILITIES" means and
includes any Loss (existing or future) arising or related in any way to or from
any actual or alleged arrangement, understanding, agreement or contract, whether
written or oral, with any distributor or reseller of the Software Programs as of
the date of the Closing, including all claims arising in connection with any
litigation or threat of litigation disclosed in the Schedules hereto (a "BR
DISTRIBUTOR"), including all transactions arising in connection with or related
to any such arrangement, understanding, agreement or contract, and whether such
Loss is based on contract, tort, statute, strict liability or other legal
theory. As used in this Agreement, "INDEMNIFIED DISTRIBUTOR CLAIMS" means any
and all Distributor Liabilities, except for claims for lost profits or
consequential damages and except for claims resulting from actions of Symantec
after the Closing taken without the consent of BR, which will not be
unreasonably withheld with respect to a BR Distributor which materially and
adversely alter the Loss that would have arisen but for such actions.
11.2.4 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 actual 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 at 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, 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.
11.2.5 No claim for indemnification under this Section
11.2 may be brought after the first (1st) anniversary of the Closing Date.
11.2.6 Notwithstanding the other provisions of this
Section 1.2, claims for Distributor Liabilities shall be handled as provided in
this Section 11.2.6. Each party shall have the right to joint participation in
and control of the defense and settlement of any claims for Distributor
Liabilities, at such party's own cost and expense. If either party has actual
knowledge of any such claim, it will promptly give notice in writing to the
other parties. No
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party may consent to any judgment or enter into any agreement or settlement of
any nature with any BR Distributor that has or may have a claim for Distributor
Liabilities without the consent and participation of the other parties. In
connection with any such claim, Symantec agrees that it will offer any BR
Distributor the right to distribute the Software Programs and Developments on
terms and conditions equivalent to those it offers to other Symantec
distributors having similar volume and other commitments, for a reasonable
period, subject to the reasonable approval of BR and the Stockholders.
11.3 No Limitation on Other Rights or Injunctive Relief. The
foregoing provisions of this Article 11, together with the other specific
allocations of liability specified in other Sections of this Agreements, are in
addition to any other remedies available to an Indemnified Party (except that
claims for damages shall be subject to the limitation of claims for
indemnification to the Escrow Funds) and nothing herein shall be deemed to
restrict a party's ability to seek and obtain injunctive relief.
11.4 Nonsolicitation of Employees. Beginning with the execution
of this Agreement and continuing until two years after the Closing Date, BR will
not recruit, attempt to hire, solicit or assist others in recruiting, attempting
to hire or soliciting any BR Employee hired by Symantec.
11.5 Noncompetition Provision. In consideration of Symantec
entering into this Agreement, BR and the undersigned Stockholders (each, a
"SELLER") each hereby severally and not jointly covenant and agree with Symantec
(and for the purposes of this clause, Symantec includes any associated,
subsidiary, related or affiliate company) that for a two year period following
the Closing (provided that with respect to Xxxxxx Xxxxxx Xxxxxxx, such period
shall be two years from the date on which his employment with Symantec ceases)
(the "NONCOMPETE PERIOD"), such Seller will not, directly or indirectly,
individually or as an employee, partner, officer, director or shareholder
(except with the prior written consent of Symantec) or in any other capacity
whatsoever of or for any person, firm, partnership, company or corporation other
than Symantec:
(a) 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 geographical areas referred to in
this Section 11.5, in the design, research, development, marketing, sale, or
licensing of computer software that is substantially similar to or competitive
with any software products or other products created, distributed or known by
Seller to be under development by BR prior to the Closing;
(b) To Seller's knowledge, directly or indirectly
develop computer software that is substantially similar to or competitive with
any other computer program or products the creation or development of which he
participated in during the Noncompete Period; or
(c) Recruit, attempt to hire, solicit, assist others in
recruiting or hiring, or refer to others concerning employment, in or with
respect to the geographical areas referred to in Section 11.5.1 below, any
person who is an employee of Symantec or any of its subsidiaries or
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induce or attempt to induce any such employee to terminate his employment with
Symantec or any of its subsidiaries.
11.5.1 Geographical Areas. The geographical areas in which
the restrictions provided for in this Section 11.5 apply include all cities,
counties and states of New Zealand, Australia, the United States, and all other
countries in which Symantec (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. Each Seller
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 Symantec and that
this Agreement accurately describes the business to which the restrictions are
intended to apply.
[11.5.2 Non-Solicitation of Customers. In addition to, and
not in limitation of, the non-competition covenants of Seller set forth above in
this Section 11.5, each Seller agrees with Symantec that, during the Noncompete
Period, such Seller will not, either for Seller or for any other person or
entity, directly or indirectly (other than for Symantec), solicit or obtain, or
attempt to solicit or obtain, the custom of any person, firm, organization,
business, corporation or other entity who is or has been a customer of Symantec
during such period, or use his/its personal knowledge or influence in relation
to any person, firm, organization, business, corporation or other entity who has
at any time during such period been a customer of Symantec or who has contracted
with or had any dealings whatsoever with Symantec.
11.5.3 Non-Solicitation of Employees or Consultants. In
addition to, and not in limitation of, the non-competition covenants of Seller
set forth above in this Section 11.5, Seller agrees with Symantec that, during
the Noncompete Period, Seller will not, either for Seller or for any other
person or entity, directly or indirectly, induce or attempt to induce any
employee, consultant or contractor of Symantec to terminate his or her
employment with Symantec and/or to terminate his or her contractual relations
with Symantec.
11.5.4 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 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.
11.5.5 Injunctive Relief. Seller acknowledges that any
breach of the covenants of this Section 11.5 will result in immediate and
irreparable injury to Symantec and, accordingly, consents to the application of
injunctive relief and such other equitable remedies for the benefit of Symantec
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
Symantec may be entitled hereunder, including, without limitation, monetary
damages.
12. MISCELLANEOUS
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12.1 Governing Law. The internal laws of the State of
California, U.S.A. (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.
12.2 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.
12.3 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.
12.4 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.
12.5 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.
12.6 Other Remedies. Except as otherwise provided herein, any
and all remedies herein expressly conferred upon a party will be deemed
cumulative with and not exclusive of any other remedy conferred hereby or by law
on such party, and the exercise of any one remedy will not preclude the exercise
of any other.
12.7 Amendment and Waivers. 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.
The waiver by a party of any breach hereof or default in the performance hereof
will not be deemed to constitute a waiver of any other default or any succeeding
breach or default.
12.8 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 the
right to enforce any of the provisions hereof on any
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occasion will not be construed to be a waiver of the right of such party to
enforce such provision on any other occasion.
12.9 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.
12.10 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.
12.11 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 deposit in the mails, addressed as follows:
(i) If to Symantec:
Symantec Corporation
00000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Vice President, Security and Assistance
with a copy to:
Symantec Corporation
00000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: General Counsel
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(ii) If to BR:
Binary Research, Ltd.
00 Xxxxxxxx Xxxxxx
Xxxxx Xxx
Xxxxxxxx, Xxx Xxxxxxx
Attention: Chief Financial Officer
with a copy to:
Blanc Xxxxxxxx Xxxxxxxx & Kronstadt
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
(iii) If to the Stockholders:
to the address indicated on the signature page hereto;
with a copy to: Blanc Xxxxxxxx Xxxxxxxx & Kronstadt at the
address indicated above
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.
12.12 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."
12.13 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.
12.14 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.
12.15 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
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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.
12.16 Public Announcement. Promptly following the Closing, the
parties will issue a press release approved by the parties announcing their
entering into this Agreement. Until the Closing Date, none of the parties will
disclose the existence or the substance of this Agreement or the transactions
provided for in this Agreement, except (a) as necessary to comply with the terms
of this Agreement and (b) Symantec 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 BR. Symantec and BR will take reasonable precautions to prevent
any trading in Symantec Common Stock by officers, directors, employees and
agents of Symantec or BR, as the case may be, having knowledge of any material
information regarding this Agreement or the matters provided for hereunder, or
by others having knowledge of such information, until the information in
question has been publicly disclosed.
12.17 Confidentiality. Except as expressly authorized by
Symantec in writing, BR will not directly or indirectly divulge to any person or
entity or use any Symantec Confidential Information. Except as expressly
authorized by BR in writing, Symantec will not directly or indirectly divulge to
any person or entity or use any BR Confidential Information until after the
Closing Date (or at, if the Closing does not occur). As used herein, "SYMANTEC
CONFIDENTIAL INFORMATION" consists of (a) any information designated by Symantec
as confidential whether developed by Symantec or disclosed to Symantec by a
third party, (b) any information relating to Symantec's product plans, product
designs, product costs, product prices, product names, finances, marketing
plans, business opportunities, personnel, research development or know-how or
any proprietary or confidential information included in or associated with the
Assets. As used herein, "BR CONFIDENTIAL INFORMATION" consists of (x) any
information designated by BR as confidential whether developed by BR or
disclosed to BR by a third party (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 BR, and all rights in software and developments (except that nothing
herein will restrict Symantec's use and disclosure of information included in
the Assets after the Closing). "SYMANTEC CONFIDENTIAL INFORMATION" and "BR
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 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
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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.
12.18 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.
12.19 Actual Knowledge. For purposes of this Agreement, the term
"actual knowledge" or "best knowledge" shall mean the actual knowledge of Xxxxxx
Xxxxxx Haszard or Xxxx Xxxxxxxxx, 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 BINARY RESEARCH, LTD.
By: /s/ XXXXXX XXXX III By:
------------------------------ --------------------------------
Name: Name:
----------------------------- -------------------------------
Its: Its:
----------------------------- -------------------------------
SYMANTEC LIMITED BINARY RESEARCH INTERNATIONAL, INC.
By: /s/ XXXXXX XXXX III By:
------------------------------ --------------------------------
Name: Name:
----------------------------- -------------------------------
Its: Its:
----------------------------- -------------------------------
34
35
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SYMANTEC CORPORATION BINARY RESEARCH, LTD.
By: By: /s/ XXXXXX XXXXXXX
------------------------------ --------------------------------
Name: Name: Xxxxxx Xxxxxxx
----------------------------- -------------------------------
Its: Its: President
----------------------------- -------------------------------
SYMANTEC LIMITED BINARY RESEARCH INTERNATIONAL, INC.
By: By: /s/ XXXXXX XXXXXXX
------------------------------ --------------------------------
Name: Name: Xxxxxx Xxxxxxx
----------------------------- -------------------------------
Its: Its:
----------------------------- -------------------------------
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36
SOLELY FOR PURPOSES OF SECTION 11.2 AND 11.5:
STOCKHOLDERS
----------------------------------
By: /s/ XXXXXX XXXXXXX
----------------------------------
Name:
----------------------------------
Address for Notice:
----------------------------------
----------------------------------
----------------------------------
---------------------------------- -----------------------------------
By: By:
------------------------------- --------------------------------
Name: Name:
----------------------------- ------------------------------
By: By:
------------------------------- --------------------------------
Name: Name:
----------------------------- ------------------------------
Address for Notice: Address for Notice:
---------------------------------- -----------------------------------
---------------------------------- -----------------------------------
---------------------------------- -----------------------------------
36
37
SOLELY FOR PURPOSES OF SECTION 11.2 AND 11.5:
STOCKHOLDERS
----------------------------------
By:
----------------------------------
Name:
----------------------------------
Address for Notice:
----------------------------------
----------------------------------
----------------------------------
Xxxx Xxxxxxxxx Family Trust Xxxxxx Family Trust
---------------------------------- -----------------------------------
By: /s/ XXXX XXXXXXXXX By: /s/ GRAEME XXXXXX XXXXX
------------------------------- --------------------------------
Name: Xxxx Xxxxxxxxx Name: Graeme Xxxxxx Xxxxx
----------------------------- ------------------------------
By: /s/ XXXXX XXXXX XXXXXXXXX By: /s/ RAYLENE XXXXXXXX XXXXX
------------------------------- --------------------------------
Name: Xxxxx Xxxxx Xxxxxxxxx Name: Raylene Xxxxxxxx Xxxxx
----------------------------- ------------------------------
Address for Notice: Address for Notice:
00x Xxxxx Xx
---------------------------------- -----------------------------------
Ellerslie Ellerslie
---------------------------------- -----------------------------------
Auckland, N.Z. Auckland, New Zealand
---------------------------------- -----------------------------------
/s/ Graeme Xxxxxx Xxxxx
----------------------------------
Graeme Xxxxxx Xxxxx
(for Xxxx Xxxxxxxxx Trust)
37
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EXHIBITS
A-1 Programs
A-2 Tools
B Developments
C Contracts
D Tangible Assets
E Excluded Assets
F Form of Escrow Agreement
G Form of Employment and Noncompetition Agreement
H1 Opinion of BR US Counsel
H2 Opinion of BR NZ Counsel
39
SCHEDULES
1.1 Exclusions from assigned Contracts
1.3 Restrictions on the Assets; Encumbrances
1.4 Assumed Obligations and Liabilities
3.1 Jurisdictions in which BR has Qualified as Foreign Corporation;
Jurisdictions in which BR Owns or Leases Real Property, Etc.
3.2.2 Necessary filings, authorizations and approvals
3.3 Required Consents and Other Disclosures Required by Section 3.3
3.4 Litigation
3.5A BR Financial Statements
3.5C BR Debts, Liabilities or Obligation's Not Reflected in BR Financial
Statements
3.7 Warranty, Development and Bug Fix Obligations
3.8 Certain Changes
3.9A Disclosures Concerning Licenses, Instruments, Obligations and Other
Agreements or Commitments Used in Connection with any Software Programs
3.9B Encumbrances on Tangible Assets
3.10 Intellectual Property Rights; Disclosure of Personnel Who Have Not
Entered Into Assignment and Confidentiality Agreements
3.13 Disclosures Concerning BR Officers, Directors and Family Members
3.14.1 BR Employment Contracts and Consulting Agreements Not Terminable at Will
3.14.3 Employee Plans and Related Information
3.14.5 BR Employees, Officers, Directors, Agents, Consultants and Contractors
3.17 Investment Banker, Broker or Finder Fees and Compensation
4.0 Symantec Schedule of Exceptions
