EXHIBIT 99.10
XXXX OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS XXXX OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT ("XXXX OF SALE,
ASSIGNMENT AND ASSUMPTION AGREEMENT") is being entered into as of February 12,
2003, by and between VERSO TECHNOLOGIES, INC., a Minnesota corporation
("Purchaser") and CLARENT CORPORATION, a Delaware corporation ("Seller"). Seller
and Purchaser are referred to collectively in this Xxxx of Sale, Assignment and
Assumption Agreement as the "Parties." Capitalized terms used herein without
definition shall have the meanings assigned to them in the Asset Purchase
Agreement (as defined below).
RECITALS
The Parties have entered into an Asset Purchase Agreement dated as of
December 13, 2002, as amended by that certain First Amendment to the Asset
Purchase Agreement dated as of February 4, 2003 (the "Asset Purchase Agreement")
which provides for the purchase by Purchaser of the Assets from Seller and for
certain related transactions.
This Xxxx of Sale, Assignment and Assumption Agreement is being entered
into pursuant to Section 7.4 of the Asset Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and conditions set forth below, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties to this Xxxx of Sale, Assignment and Assumption Agreement, intending to
be legally bound, agree as follows:
1. SALE AND ASSIGNMENT.
(A) Subject to the terms of the Asset Purchase Agreement,
Seller does hereby sell, transfer, convey and assign to Purchaser all of
Seller's right, title and interest as of the Closing Date in and to the Assets.
(B) Purchaser hereby accepts the transfer, assignment and
conveyance of the Assigned Contracts and Assumed Leases and agrees from and
after the date hereof to perform the obligations of Seller under the Assigned
Contracts and Assumed Leases.
2. ASSUMPTION OF LIABILITIES. Purchaser hereby assumes, and agrees to
cause to be timely discharged, duly paid and duly satisfied, each of the Assumed
Liabilities.
3. NO ADDITIONAL RIGHTS, OBLIGATIONS OR LIMITATION OF REMEDIES. Nothing
contained in this Xxxx of Sale, Assignment and Assumption Agreement is intended
to provide any rights to Purchaser or Seller beyond those rights expressly
provided to such Party in the Asset Purchase
Agreement. Nothing contained in this Xxxx of Sale, Assignment and Assumption
Agreement is intended to impose any obligations or liabilities on Purchaser or
Seller beyond those obligations and liabilities imposed on such Party in the
Asset Purchase Agreement. Nothing contained in this Xxxx of Sale, Assignment and
Assumption Agreement is intended to limit or restrict in any manner any of the
rights or remedies available to Purchaser or Seller under the Asset Purchase
Agreement.
4. INDEMNIFICATION BY PURCHASER. Purchaser shall hold harmless and
indemnify Seller and Seller's agents, directors, officers, employees,
affiliates, successors and assigns (together with Seller, the "Indemnitees")
from and against, and shall compensate and reimburse the Indemnitees for, any
loss, damage, injury, liability, claim, demand, settlement, judgment, award,
fine, penalty, tax, or reasonable fee, (including any reasonable legal, expert,
accounting or advisory fee), charge, cost (including any reasonable cost of
investigation) or expense of any nature that is directly or indirectly suffered
or incurred by any Indemnitee or to which any Indemnitee may otherwise become
subject (whether or not relating to any third-party claim) and which arises from
or as a result of, or is directly or indirectly caused by to: (a) any failure by
Purchaser to timely discharge, duly pay or duly satisfy any of the Assumed
Liabilities; or (b) any suit or other proceeding related to any matter set forth
in clause (a) of this Section 4 (including any proceeding commenced by any
Indemnitee for the purpose of enforcing any of its rights under this Section 4).
5. FURTHER ASSURANCES.
(A) It is the intent of the parties that all of the
Seller's right, title and interest in and to each of the Assets be transferred,
assigned and conveyed to Purchaser as set forth above. Each party will, to the
extent reasonably requested by the other party and at such other party's sole
expense, execute and/or cause to be delivered to each other party hereto such
instruments and other documents, and shall take such other actions, as such
other party may reasonably request for the purpose of carrying out or evidencing
the intent of this Xxxx of Sale, Assignment and Assumption Agreement.
(B) Each party will use commercially reasonable efforts
to effect the assignment of all non-U.S. patents, patent applications,
trademarks and trademark applications comprising the Assets pursuant to this
Xxxx of Sale, Assignment and Assumption Agreement and the Asset Purchase
Agreement.
(C) After the Closing, if Seller files, pursuant to
Section 1.9 of the Asset Purchase Agreement, an additional motion to provide for
the assumption and assignment of the Additional Agreements pursuant to Sections
365(a), 365(b) and 365(f) of the Bankruptcy Code, then Purchaser and Seller
shall execute a Xxxx of Sale, Assignment and Assumption Agreement covering the
Additional Agreements in the form of this Agreement.
6. MISCELLANEOUS PROVISIONS.
(A) GOVERNING LAW. This Xxxx of Sale, Assignment and Assumption
Agreement will be construed in accordance with, and governed in all respects by,
the laws of the State of California (without giving effect to principles of
conflicts of law).
(B) VENUE AND JURISDICTION. If any legal proceeding or other legal
action relating to this Xxxx of Sale, Assignment and Assumption Agreement is
brought or otherwise initiated, the venue therefor will be the Bankruptcy Court,
which will be deemed to be a convenient forum.
(C) NOTICES. Any notice or other communication required or
permitted to be delivered to either Party under this Agreement must be in
writing and will be deemed properly delivered, given and received when delivered
(by hand, by registered mail, by courier or express delivery service or by
facsimile) to the address or facsimile telephone number set forth beneath the
name of such Party below (or to such other address or facsimile telephone number
as such Party shall have specified in a written notice given to the other
Party):
if to Purchaser:
Verso Technologies, Inc.
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Hardin LLP
2700 International Tower
000 Xxxxxxxxx Xxxxxx XX
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxx and Xxxxxx X. Hussle
Facsimile: (000) 000-0000
if to Seller:
Clarent Corporation
000 Xxxxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx and Xxxxxxxx Xxxxxx XxXxxxx
Facsimile: (000) 000-0000
(D) ASSIGNMENT. Purchaser may not delegate any of its obligations
under this Xxxx of Sale, Assignment and Assumption Agreement (whether
voluntarily, involuntarily, by way of merger or otherwise) to any other Person
without the prior written consent of Seller, which consent shall not be
unreasonably withheld.
(E) SEVERABILITY. In the event that any provision of this Xxxx of
Sale, Assignment and Assumption Agreement, or the application of such provision
to any Person or set of circumstances, shall be determined to be invalid,
unlawful, void or unenforceable to any extent, the remainder of this Xxxx of
Sale, Assignment and Assumption Agreement, and the application of such provision
to Persons or circumstances other than those as to which it is determined to be
invalid, unlawful, void or unenforceable, will not be affected and will continue
to be valid and enforceable to the fullest extent permitted by law.
(F) ENTIRE AGREEMENT. This Xxxx of Sale, Assignment and Assumption
Agreement, the Asset Purchase Agreement, the Confidentiality Agreements (which
remain in full force and effect) and the Ancillary Agreements together set forth
the entire understanding of the Parties, and supersede all other agreements and
understandings between the Parties, relating to the subject matter hereof and
thereof.
(G) WAIVER. No failure on the part of either Party to exercise any
power, right, privilege or remedy under this Xxxx of Sale, Assignment and
Assumption Agreement, and no delay on the part of either Party in exercising any
power, right, privilege or remedy under this Xxxx of Sale, Assignment and
Assumption Agreement, will operate as a waiver thereof; and no single or partial
exercise of any such power, right, privilege or remedy will preclude any other
or further exercise thereof or of any other power, right, privilege or remedy.
(H) AMENDMENTS. This Xxxx of Sale, Assignment and Assumption
Agreement may not be amended, modified, altered or supplemented except by means
of a written instrument executed on behalf of both Parties.
(I) COUNTERPARTS. This Xxxx of Sale, Assignment and Assumption
Agreement may be executed in several counterparts, each of which will constitute
an original and all of which, when taken together, will constitute one
agreement.
(J) INTERPRETATION OF AGREEMENT.
(I) Each Party acknowledges that it has participated in
the drafting of this Xxxx of Sale, Assignment and Assumption Agreement, and any
applicable rule of construction to the
effect that ambiguities are to be resolved against the drafting party will not
be applied in connection with the construction or interpretation of this Xxxx of
Sale, Assignment and Assumption Agreement.
(II) Whenever required by the context hereof, the singular
number will include the plural, and vice versa.
(III) As used in this Xxxx of Sale, Assignment and
Assumption Agreement, the words "include" and "including," and variations
thereof, will not be deemed to be terms of limitation, and will be deemed to be
followed by the words "without limitation."
(IV) Unless the context otherwise requires, references in
this Xxxx of Sale, Assignment and Assumption Agreement to "Sections" are
intended to refer to Sections of this Xxxx of Sale, Assignment and Assumption
Agreement.
(V) The bold-faced headings contained in this Xxxx of
Sale, Assignment and Assumption Agreement are for convenience of reference only,
will not be deemed to be a part of this Xxxx of Sale, Assignment and Assumption
Agreement and will not be referred to in connection with the construction or
interpretation of this Xxxx of Sale, Assignment and Assumption Agreement.
IN WITNESS WHEREOF, the Parties have caused this Xxxx of Sale,
Assignment and Assumption Agreement to be executed as of the date first written
above.
VERSO TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Chief Executive Officer
CLARENT CORPORATION
By: /s/ X. X. Xxxx
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Name: Xxxxx X. Xxxx
Title: President
