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Exhibit 10.1
ASSET PURCHASE AGREEMENT dated as of May 14, 1997 (this
"Agreement"), between TOC HOLDING COMPANY formerly known as XXXXXX.XXX, INC., a
Delaware corporation ("Seller"), and QUARTERDECK CORPORATION, a Delaware
corporation ("Purchaser").
WHEREAS, Seller is engaged in the business (the "Business") of
operating an Internet site that provides certain services to subscribers and
developing software that will provide similar services to end users;
WHEREAS, Seller is unable to continue operating the Business
and intends to commence a case under Chapter 11 of the Bankruptcy Code by
filing a voluntary petition with the U.S. Bankruptcy Court for the Northern
District of California (the "Bankruptcy Court");
WHEREAS, Seller wishes to sell to Purchaser, and Purchaser
wishes to purchase from Seller, certain of the assets relating to the Business,
upon the terms and subject to the conditions of this Agreement, and subject to
the entry of an order of the Bankruptcy Court authorizing the transactions
contemplated hereby; and
WHEREAS, pursuant to a letter agreement dated April 29, 1997
by and between Seller and Purchaser (the "Letter Agreement"), Seller and
Purchaser have executed and delivered (i) a License Agreement (the "License
Agreement"), (ii) a Reimbursement Agreement (the "Reimbursement Agreement") and
(iii) a Management Agreement (the "Management Agreement" and collectively with
the License Agreement, the Reimbursement Agreement and this Agreement, the
"Transaction Documents"), each dated as of May 9, 1997.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties agree as follows:
ARTICLE I
Purchase and Sale of Acquired Assets
SECTION 1.1. Purchase and Sale.
Upon the terms and subject to the conditions of this
Agreement, Seller hereby sells, assigns, transfers, conveys and delivers to
Purchaser effective as of the Closing (as hereinafter defined), and Purchaser
hereby purchases, effective as of the Closing, all of Seller's right, title and
interest in, to and under the Acquired Assets (as hereinafter defined).
SECTION 1.2. ACQUIRED ASSETS AND EXCLUDED ASSETS.
(a) The term "Acquired Assets," when used in this
Agreement, means the business, properties, assets, goodwill and rights of
Seller as described below:
(i) all trade secrets, discoveries, inventions,
know-how, formulae, processes, procedures, drawings, plans, designs,
features, data, research, records of
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inventions, computer software, source code, test information, market
surveys, marketing know-how, patents, patent applications, patent
rights and copyrights (whether registered or unregistered) owned by
Seller or any rights Seller may have in such intellectual property,
whether protected, created or arising underthe laws of the United
States or any other jurisdiction (all of the foregoing, "Technology"),
including without limitation the following:
(x) any and all software products
marketed or under development by or for Seller, including without
limitation TuneUpdate, PCTuneUp and DataGarage, and all updates,
upgrades or other modifications thereof (collectively, the
"Products"), together with any and all patents, patent applications,
patent rights, copyrights and trade secret rights of Seller in or
relating to any of the foregoing (whether or not subject to statutory
registration or protection and whether protected, created or arising
under the laws of the United States or any other jurisdiction); and
(y) any and all proprietary content
utilized by Seller in connection with the Seller's existing website at
the Internet address xxx.xxxxxx.xxx and any website developed by
Seller that will succeed to such Internet address and to deal in all
respects with subscribers of the services offered through Seller's
existing or successor website (the "Website"), and any and all
software (in addition to the Products) directly or indirectly utilized
by Seller in connection with the Website, including without limitation
any and all patents, patent applications, patent rights, copyrights,
and trade secret rights of Seller in or relating to any of the
foregoing (whether or not subject to statutory registration or
protection and whether protected, created or arising under the laws of
the United States or any other jurisdiction);
(ii) any and all trademarks and servicemarks
(whether registered or unregistered) and tradenames of Seller,
including without limitation any registered or unregistered trademark
or servicemark rights of Seller with respect to XxxxXx.xxx,
TuneUpdate, Subscriberware, and DataGarage; and
(iii) Seller's rights and interest under (A) the
Assigned Agreements (as defined in Section 4.1(d)) and (B) the lease
of the premises located at 000 Xxx Xxxxxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxx, including without limitation any deposits made by Seller
thereunder (the "Palo Alto Office Lease" together with the Assigned
Agreements and with any other agreements that may become Acquired
Assets pursuant to Section 1.2(c)), the "Contracts").
(iv) all permits, concessions, licenses,
franchises, approvals and authorizations by governmental or regulatory
authorities or bodies (all of the foregoing, "Permits") held by Seller
that relate to the Business;
(v) all rights of Seller, subject to any
conditions to which such rights are subject, in, to or under all
covenants, conditions, warranties, representations and guarantees made
or given by suppliers, manufacturers and contractors in connection
with the Business and the Acquired Assets; and
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(vi) copies of all books of account, general,
financial and accounting records, and all files, invoices, customers'
and suppliers' lists, technical documents, manuals, management
software tools, databases, computer tapes and other data owned by
Seller on the Closing Date.
(b) Notwithstanding anything to the contrary herein, the
Acquired Assets shall not be deemed to include the following "Excluded Assets":
(i) cash on hand or on deposit with banks on the
Closing Date;
(ii) any accounts receivable;
(iii) the following agreements, contracts or
understandings:
(A) any agreements with Persimmon;
(B) any and all development or other
agreements with Software Kinetics Ltd.;
(C) the Authorized Electronic Reseller
Agreement with Symantec Limited and Symantec
Corporation;
(D) the lease of the premises located at
00000 Xxxxxxx Xxxxx, Xxx Xxxxx Xxxxx, Xxxxxxxxxx;
(E) the lease of the premises located at
0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxx;
and
(F) the lease of the premises located at
0000 Xxxxxxxx Xxxx, Xxxxx 00-X, Xxxxxxxxxx, X.X.;
(iv) any computer equipment, office equipment and
furniture and any leases of any of the foregoing;
(v) all rights of Seller under this Agreement and
the agreements, instruments and certificates delivered in connection
with this Agreement; and
(vi) all rights relating to the Excluded
Liabilities (as hereinafter defined).
(c) Notwithstanding anything to the contrary herein,
Purchaser, in its sole discretion, by written notice to Seller no later than
ten days before the Closing, may re-designate as an Excluded Asset that shall
not acquired by Purchaser at the Closing any agreement, lease or other asset
that is included in the Acquired Assets. Any such redesignation of any of the
Acquired Assets or Excluded Assets shall not result in any adjustment to the
Purchase Price (as hereinafter defined).
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SECTION 1.3. NO ASSUMPTION OF LIABILITIES.
(a) Except with respect to obligations and liabilities
accruing after the Closing under any of the Contracts (the "Assumed
Liabilities"), Purchaser is not assuming any liabilities of Seller ("Excluded
Liabilities").
(b) Pursuant to Section 363(f) of the Bankruptcy Code,
Purchaser shall acquire the Acquired Assets free and clear of all Liens (as
hereinafter defined), obligations, liabilities and interests whatsoever except
as expressly provided in Section 1.3(a).
(c) For purposes of this Agreement, "Taxes" shall mean
all income, franchise, excise, real and personal property, sales, use, payroll
and withholding and other taxes imposed by any governmental entity, whether in
the form of assessments which are in the nature of taxes or otherwise, together
with all interest, penalties and additions imposed with respect to such
amounts. In the case of any taxable period that includes (but does not end on)
the Closing Date (a "Straddle Period"), real, personal and intangible property
Taxes ("Property Taxes") incurred with respect to the portion of a Straddle
Period ending on or prior to the Closing Date shall constitute Excluded
Liabilities and shall be equal to the amount of such Property Taxes incurred
with respect to the entire Straddle Period multiplied by a fraction, the
numerator of which is the number of days in such portion and the denominator of
which is the number of days in the Straddle Period.
SECTION 1.4. Purchase Price.
The purchase price for the Acquired Assets (the "Purchase
Price") shall be $250,000. As a good-faith deposit against the Purchase Price,
pursuant to the terms of the Letter Agreement Purchaser has advanced to Seller
the sum of $50,000 (the "Deposit").
ARTICLE II
THE CLOSING
SECTION 2.1. CLOSING DATE.
The closing of the sale and transfer of the Acquired Assets
(hereinafter called the "Closing") shall take place at 00000 Xxxxxxxx Xxx,
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000, on the first business day after the
expiration of ten calendar days after the Bankruptcy Court enters the Approval
Order, unless Purchaser has waived the finality of the Approval Order, or such
fewer number of days after entry of the Approval Order as the Purchaser may
determine in its sole discretion, or at such other time, date and place as
shall be fixed by agreement among the parties hereto (such date of the Closing
hereinafter referred to as the "Closing Date").
SECTION 2.2. TRANSACTIONS TO BE EFFECTED AT THE CLOSING.
At the Closing:
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(a) Seller shall deliver to Purchaser (i) such
appropriately executed bills of sale, assignments and other instruments of
transfer relating to the Acquired Assets in form and substance reasonably
satisfactory to Purchaser and its counsel, (ii) true and complete lists as of
the Closing Date of all Acquired Assets, including all deferred revenues and
any other prepaid amounts or amounts paid on account with respect to the
Acquired Assets and (iii) such other documents as Purchaser or its counsel may
reasonably request to demonstrate satisfaction of the conditions and compliance
with the agreements set forth in this Agreement; and
(b) Purchaser shall deliver to Seller (i) the Purchase
Price less the Deposit by certified or official bank check payable in next day
funds and (ii) such other documents as Seller or its counsel may reasonably
request to demonstrate satisfaction of the conditions and compliance with the
agreements set forth in this Agreement.
ARTICLE III
CLOSING CONDITION STATEMENTS
The obligations of Purchaser to purchase the Acquired Assets
is subject to the following statements being true and correct as of the
Closing:
(a) Organization, Standing and Power. Seller is a
corporation duly organized and validly existing under the laws of the
jurisdiction in which it is incorporated and has the requisite power and
authority to own the Acquired Assets and to carry on the Business. Seller has
heretofore delivered to Purchaser true and complete copies of its certificate
of incorporation and by-laws, as amended through the date of this Agreement.
(b) Authority. Seller has the requisite corporate power
and authority to execute this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporation action on the part of Seller and the shareholders
of the Seller. This Agreement has been duly executed and delivered by Seller
and will constitute a legal, valid and binding obligation of Seller enforceable
in accordance with its terms.
(c) No Violation. Subject to the entry of the Approval
Order (and except to the extent that such Approval Order removes or resolves or
cures any violation, conflict, default, adverse right, loss or requirement
referred to in (i), (ii), (iii) or (iv) below), the execution and delivery of
this Agreement do not, and the consummation of the transactions contemplated
hereby and the compliance with the terms hereof will not, (i) violate any law,
judgment, order, decree, statute, ordinance, rule or regulation applicable to
Seller, the Business or the Acquired Assets, (ii) conflict with any provision
of the certificate of incorporation or by-laws of Seller or result in a
creation of any Lien upon any of the Acquired Assets pursuant to any mortgage,
indenture, lease, agreement or other instrument to which it is a party or by
which it or any of its property or assets is bound or (iii) result in a default
(with or without notice or lapse of time or both) or give rise to a right of
termination, cancellation or acceleration or to loss of a benefit under any of
the Contracts or any permit, concession, franchise, authorization or license
included
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in the Acquired Assets or (iv) require any consent, approval, order or
authorization of, or the registration, declaration of filing with, any court,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign (a "Governmental Entity"), or any other
individual, corporation, partnership, joint venture, trust, business
association or other entity (hereinafter, a "Person", which term shall include
a Governmental Entity).
(d) No Judgment or Order. Seller is not otherwise a
party to, subject or bound by any judgment, order, writ, prohibition,
injunction or decree of any court, governmental body or arbitrator and no
action or proceeding is pending against Seller which would prevent the
execution, delivery or performance of this Agreement by Seller to Purchaser.
(e) Compliance with Applicable Laws. Seller has complied
in all respects with all laws, statutes, ordinances, regulations, rules and
orders of all Governmental Entities applicable to the Seller, the Business or
to the Acquired Assets; and has not received any oral or written notification
of any asserted violation of the foregoing or commencement of any governmental
investigation or review with respect thereto. The Seller has all Permits
required for the operation of the Business, and will assign all such Permits as
part of the Acquired Assets, to the extent such assignment is permitted by law.
(f) Litigation; Decrees. Except as set forth in Schedule
3.1(g), there is no suit, action, investigation or proceeding which is pending
or, to the knowledge of Seller, threatened against or affecting Seller relating
to or which could adversely affect the Acquired Assets, the Business or the
transactions contemplated by this Agreement. Except as set forth in Schedule
3.1(g), there is no judgment, decree, injunction, rule or order of any
governmental entity or body outstanding relating to the Acquired Assets, the
Business or the transactions contemplated hereby.
(g) Title to Acquired Assets. Seller can pursuant to,
and to the extent provided by, the Approval Order, deliver good, clear, valid
and marketable title to all the Acquired Assets free and clear of all
mortgages, claims, charges, liens, security interests, pledges, of any nature
whatsoever (collectively, "Liens").
(h) Technology. Seller is the sole and exclusive owner
of all of the Technology included in the Acquired Assets ("Owned Technology"),
except with respect to Technology for which it has a license ("Licensed
Technology"), and has received no oral or written notice from any other Person
alleging Seller's use or exploitation of any Technology (including the use or
distribution of any Products) infringes such Person's intellectual property
rights or otherwise, pertaining to or challenging the right of Seller to use
any of the Technology or any rights thereunder or to distribute any of the
Products, and, with respect to Owned Technology, has the full and unrestricted
right to use, execute, reproduce, display, perform, modify, enhance,
distribute, prepare derivative works of and sublicense, without the consent of
or any payment to any other Person, all Products and all other Technology
included in the Acquired Assets, and, with respect to Licensed Technology, has
the right to use, execute, reproduce, display, perform, modify, enhance,
distribute, prepare derivative works of and sublicense all Products and all
other Technology included in the Acquired Assets. There are no
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interferences or other contested proceedings, either pending or, to the
knowledge of Seller, threatened, in the United States Copyright Office, the
United States Patent and Trademark Office or any federal, state or local court
or before any other governmental agency or tribunal, relating to any of the
Technology.
(i) Contracts. Each Contract is a valid and binding
obligation of the parties thereto enforceable in accordance with its terms and
in full force and effect. Except as disclosed in schedule 3.1(m), Seller is
not (with or without the lapse of time or the giving of notice, or both) in
breach or default in any respect under any Contract, none of the other parties
to any such Contract is (with or without the lapse of time or the giving of
notice, or both) in breach or default in any respect thereunder and Seller has
not received any notice of the intention of any party to terminate any such
Contract. Complete and correct copies of all Contracts, together with all
modifications and amendments thereto, have been delivered or made available to
Purchaser.
(j) Taxes. Seller has timely filed or will timely file
all Tax returns required to be filed with respect to all Taxes.
(k) Disclosure. Seller is not aware of any fact of
material adverse significance to seller or its business, assets, condition
(financial or otherwise), results of operations or prospects which is not
disclosed in this Agreement or the schedules hereto.
SECTION 3.2. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents and warrants to Seller as follows:
(a) Organization, Standing and Power. It is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it is incorporated and has the requisite
corporate power and authority to carry on its business as now being conducted.
(b) Authority. It has all requisite corporate power and
authority to execute this Agreement and to consummate the transactions
contemplated hereby (subject to the entry of the Approval Order). The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Purchaser. This Agreement has been duly
executed and delivered by Purchaser and (subject to the entry of the Approval
Order) constitutes a legal, valid and binding obligation of Purchaser
enforceable in accordance with its terms except as enforcement thereof may be
limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally and except that the availability of
equitable remedies, including specific performance, is subject to the
discretion of the court before which any proceeding therefor may be brought.
(c) No Violation; Consents. The execution and delivery
of this Agreement do not, and the consummation of the transactions contemplated
hereby will not, (i) violate any law, judgment, order, decree, statute,
ordinance, rule or regulation applicable to Purchaser, (ii) conflict with any
provision of the certificate of incorporation or by-laws of Purchaser or
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(iii) require any consent, approval, order or authorization of, or the
registration, declaration or filing with, any Governmental Entity or other
Person.
ARTICLE IV
COVENANTS
SECTION 4.1. MOTIONS FOR APPROVAL AND OTHER ORDERS.
(a) Seller shall commence a Chapter 11 case (the "Chapter
11 Case") under the Bankruptcy Code within five days after the date hereof.
(b) Seller shall file with the Bankruptcy Court within
one (1) business day of the day that the Chapter 11 Case is commenced (the
"Petition Date"):
(i) an emergency motion seeking an order granting
interim approval of the Management Agreement pending receipt of final approval
(the "Interim MA Approval Order") and an order granting final approval of the
Management Agreement at a subsequent hearing held on shortened notice to
creditors (the "Final MA Approval Order");
(ii) an emergency motion seeking an order (the
"Overbid Procedures Order") which will provide for the payment of the
Reimbursable Expenses (as defined in the Reimbursement Agreement) to Purchaser
pursuant to the terms of the Reimbursement Agreement, as an administrative
expense under Bankruptcy Code Section 503, in the event that a competing bid
for all or a substantial part of the Acquired Assets is approved by the
Bankruptcy Court, and will establish overbid and related procedures to be
followed in connection with the conduct of the hearing at which entry of the
Approval Order would be considered; and
(iii) a motion seeking entry by the Bankruptcy
Court of an order (the "Approval Order"), among other things, (A) approving
this Agreement and the transactions contemplated hereby, including without
limitation the transactions contemplated by the Management Agreement, (B)
providing that the Acquired Assets shall be transferred by Seller to Purchaser
free and clear of all liens, claims or interests of any kind or nature and (C)
finding that Purchaser acted in good faith in connection with its purchase of
the Acquired Assets, as provided in Bankruptcy Code Section 363(m). Seller
shall give notice of such motion and the hearing thereon in the manner and to
the parties required under the Bankruptcy Rules or the order of the Bankruptcy
Court.
(c) Seller shall use its best efforts to obtain the
following orders from the Bankruptcy Court in the Chapter 11 Case by the
following dates:
(i) the Interim MA Approval Order, in form and
substance satisfactory to Purchaser, within 10 days after the Petition Date;
(ii) the Final MA Approval Order, in form and
substance satisfactory to Purchaser, within 30 days after entry of the Interim
MA Approval Order;
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(iii) the Overbid Procedures Order, in form and
substance satisfactory to Purchaser, within 10 days after the Petition Date;
and
(iv) the Approval Order, in form and substance
satisfactory to Purchaser, within 30 days after entry of the Interim MA
Approval Order.
(d) Seller shall file with the Bankruptcy Court within
one (1) business day of the Petition Date a motion seeking approval of the
assumption and assignment to Purchaser pursuant to Bankruptcy Code Section 365,
and shall use its reasonable best efforts to so assume and assign, the
following executory contracts (the "Assigned Agreements"); provided that Seller
shall not be liable for any amounts necessary to cure defaults and the failure
to obtain court approval of such assumption and assignment shall not constitute
a breach or default of Seller's obligations to Purchaser:
(i) any other license or distribution agreement
relating to third party software that is made available by Seller
through, or utilized by Seller in connection with, the Website;
(ii) any and all agreements or arrangements with
subscribers of services offered by Seller through the Website;
(iii) any and all agreements with OEMs, Internet
Service Providers and Regional Xxxx Operating Companies under which
the services and products of Seller offered through the Website are
made available to customers or subscribers thereof;
(iv) the License, Consulting Services and Revenue
Sharing Agreement with BF Communications, Inc. and any and all other
revenue sharing agreements into which Seller has entered;
(v) any and all website service agreements or
other agreements with vendors pursuant to which vendor materials are
advertised on the Website; and
(vi) any and all marketing representative
agreements relating to the Website into which Seller has entered
SECTION 4.2. EXPENSES.
Except to the extent provided in the Reimbursement Agreement,
whether or not the Closing takes place, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such expense. Any sales or transfer Taxes
applicable to the sale, assignment, transfer, assignment, transfer, conveyance
or delivery from Seller to Purchaser of the Acquired Assets and any other
transfer or documentary Taxes or any filing or recording fees applicable to
such sale, assignment, transfer, conveyance or delivery shall be paid by
Seller.
SECTION 4.3. BROKERS OR FINDERS.
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Each of Purchaser and Seller represent, as to itself and its
Affiliates, that no agent, broker, investment banker or other firm or person is
or will be entitled to any broker's or finder's fee or any other commission or
similar fee in connection with any of the transactions contemplated by this
Agreement.
SECTION 4.4. LICENSED TECHNOLOGY.
Seller shall use its reasonable best efforts to provide a list
of Licensed Technology to Purchaser as soon as possible and in any case by June
1, 1997 and to obtain any and all consents necessary to sublicense to Purchaser
any and all Licensed Technology in accordance with the terms of the License
Agreement as soon as possible.
SECTION 4.5. LEGAL CONDITIONS TO CLOSING.
Each of Purchaser and Seller will take all reasonable actions
necessary to comply promptly with all legal requirements which may be imposed
on it with respect to the Closing and will promptly cooperate with and furnish
information to each other and to other parties in connection with any such
legal requirements. Each of Purchaser and Seller will take all reasonable
actions necessary to obtain (and will cooperate with each other in obtaining)
any consent, authorization, order or approval of, or any exemption by, any
Person required to be obtained or made by it in connection with any of the
transactions contemplated by this Agreement.
SECTION 4.6. ADDITIONAL AGREEMENTS.
Seller will use its best efforts to facilitate and effect the
implementation of the transfer of the Acquired Assets to Purchaser and, for
such purpose but without limitation, Seller promptly will at and after the
Closing Date execute and deliver to Purchaser such assignments, bills of sale,
consents and other instruments, including a power of attorney appointing
Purchaser as the lawful attorney-in- fact of Seller to take all actions
necessary to effect the transfer of the Acquired Assets to Purchaser as
contemplated hereby, as Purchaser or its counsel may reasonably request as
necessary or desirable for such purpose. If, in order properly to prepare its
Tax returns, other documents or reports required to be filed with Governmental
Entities or its financial statements, it is necessary that Purchaser be
furnished with additional information relating to the Acquired Assets or Seller
and such information is in the Seller's possession, Seller will promptly
furnish such information to Purchaser upon request by Purchaser.
SECTION 4.7. PURCHASE PRICE ALLOCATION.
On or prior to the Closing Date, Seller and Purchaser shall
mutually agree, and shall be bound in all respect thereby, on an allocation of
the Purchase Price among the Acquired Assets according to the relative fair
market values of such assets on the Closing Date. If Seller and Purchaser are
unable to agree on such fair market values, Seller and Purchaser shall elect an
independent appraisal firm to determine such values. The conclusions of such
appraisal firm shall be conclusive and binding in all respects. The fees and
expenses of such appraisal firm shall be shared equally by Seller and
Purchaser. Neither party shall take a position inconsistent
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with any allocation determined in accordance with this Section 4.9 in any
document or filing, including any Tax return, report or form.
SECTION 4.8. COOPERATION IN OBTAINING BANKRUPTCY COURT APPROVAL AND
RELATED MATTERS.
Seller will fully cooperate with Purchaser in connection with
seeking the orders of the Bankruptcy Court contemplated to obtained pursuant to
Section 4.1 and in connection with any litigation or proceeding which may be
instituted hereafter against or by Seller which may affect the approval of any
of the Transaction Documents or satisfaction of the conditions precedent to the
occurrence of the Closing under this Agreement.
SECTION 4.9. NOTICE OF ACTIONS AND PROCEEDINGS.
From and after the date hereof until the Closing Date, Seller
shall promptly notify Purchaser of any written notice received by Seller with
respect to actions or proceedings commenced or, to its knowledge, threatened,
involving or affecting Seller or the Business or the Acquired Assets and which
could have a material adverse affect on the business, assets, condition
(financial or otherwise), results of operations or prospects of the Business.
SECTION 4.11. BANKRUPTCY FILINGS.
From and after the date hereof until the Closing Date, Seller
shall deliver to Purchaser (i) copies of all pleadings, motions, statements,
schedules, applications, reports and other papers that Seller files in the
Chapter 11 case within a reasonable time after filing, but with respect to any
such papers that relate, in whole or in part, to this Agreement or any of the
other Transaction Documents, the transactions contemplated hereby or thereby or
Purchaser, Seller shall use all reasonable efforts to provide such prior notice
as may be reasonable under the circumstances before the filing of such papers
and (ii) copies of all pleadings, motions, notices, statements, schedules,
applications, reports and other papers filed in the Chapter 11 Case.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1. CONDITIONS TO EACH PARTY'S OBLIGATION.
The obligation of Purchaser to purchase the Acquired Assets
and the obligation of Seller to sell, assign, convey and deliver the Acquired
Assets to Purchaser shall be subject to the satisfaction prior to the Closing
of the following condition:
(a) Approvals. All authorizations, consents, orders or
approvals of, or declarations or filings with, any Governmental Entity or any
other Person necessary for the consummation of the transactions contemplated by
this Agreement shall have been obtained or filed or shall have occurred.
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(b) No Litigation, Injunctions, or Restraints. There
shall be no suit, action, or other proceeding pending before any Governmental
Entity in which it is sought to directly or indirectly restrain, prohibit,
invalidate, delay or set aside in whole or in part the consummation of the
transactions contemplated by this Agreement or to obtain material damages in
connection therewith. No temporary restraining order, preliminary or permanent
injunction or other legal restraint or prohibition preventing the consummation
of the transactions contemplated by this Agreement shall be in effect.
(c) Order. The orders referenced in Section 4.1 shall
have been obtained by the respective time periods set forth below, in form and
substance satisfactory to Purchaser, shall have become final and unappealable
(unless Purchase waives the requirement of finality) and shall not be subject
to any stay on the first business day after the expiration of ten calendar days
after the entry thereof or such other date as may be fixed for the Closing Date
in accordance with Section 2.1 hereof. The Interim MA Approval order shall
have been entered within 30 days after the Petition Date, the Final MA Approval
Order shall have been entered within 25 days after entry of the Interim MA
Approval Order, the Overbid Procedures Order shall have been entered within 30
days after the Petition Date and the Approval Order shall been entered within
25 days after the Interim MA Approval Order.
SECTION 5.2. CONDITIONS TO OBLIGATIONS OF PURCHASER.
The obligations of Purchaser to purchase the Acquired Assets
is subject to the satisfaction on and as of the Closing of each of the
following conditions:
(a) Closing Condition Statements. The closing condition
statements of Seller set forth in this Agreement shall be true and correct in
all material respects as of the Closing Date as though made on and as of the
Closing Date, except as otherwise contemplated by this Agreement, and Purchaser
shall have received a certificate signed on behalf of Seller by the chief
executive officer of Seller to such effect.
(b) Performance of Obligations of Seller. Seller shall
have performed or complied in all material respects with all obligations,
conditions and covenants required to be performed by it under this Agreement at
or prior to the Closing, and Purchaser shall have received a certificate signed
on behalf of Seller by the chief executive officer of Seller to such effect.
(c) Required Consents. Seller shall have delivered to
Purchaser duly executed assignments and consents as are required in respect of
the Acquired Assets.
(d) Bills of Sale. Seller shall have delivered to
Purchaser the duly executed instruments referred to in Section 2.2(a), together
with such evidence of due authorization and execution thereof as Purchaser or
its counsel may reasonably request.
(e) Other Documents. Seller shall have delivered to
Purchaser such other documents relating to Seller's corporate existence and
authority (including copies of resolutions
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and consents of the board of directors and shareholders of Seller), and such
other matters as Purchaser or its counsel may reasonably request.
(e) Acceptance by Purchaser's Counsel. The form and
substance of all legal matters contemplated hereby and all documents delivered
hereunder shall be reasonably acceptable to counsel to Purchaser.
(f) Monetary Defaults. The aggregate amount required to
cure any monetary defaults under any executory contracts or unexpired leases
that are included in the Acquired Assets shall not exceed $100,000.
SECTION 5.3. CONDITIONS TO THE OBLIGATION OF SELLER.
The obligation of Seller to sell, assign, convey, and deliver
the Acquired Assets is subject to the satisfaction on and as of the Closing
Date of each of the following conditions:
(a) Representations and Warranties. The representations
and warranties of Purchaser set forth in this Agreement shall be true end
correct in all material respects as of the date of this Agreement and as of the
Closing Date as though made on and as of the Closing Date, except a otherwise
contemplated by this Agreement, and Seller shall have received a certificate
signed on Purchaser's behalf by a responsible officer of Purchaser to such
effect.
(b) Performance of Obligations of Purchaser. Purchaser
shall have performed or complied in all material respects with all obligations
and conditions required to be performed by it under this Agreement prior to the
Closing Date, and Seller shall have received a certificate to such effect
signed on behalf of Purchaser by a responsible officer of Purchaser authorized
to do so.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
SECTION 6.1. TERMINATION.
(a) This Agreement maybe terminated and the transactions
contemplated hereby abandoned at any time prior to the closing:
(i) by mutual written consent of Seller and
Purchaser;
(ii) by Purchaser if (A) Seller has breached any
of its obligations, representations or warranties under this
Agreement, (B) such breach would have a material adverse affect on the
business, assets, condition (financial or otherwise), results of
operations or prospects of the Business and (C) such breach is
curable, after notice of such breach Seller shall not have cured such
breach to the satisfaction of Purchaser after fifteen business days
from the date of such notice; and
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(iii) by Purchaser (x) if the Closing does not
occur on or before August 14, 1997 or (y) if the Bankruptcy Court does
not enter the orders referenced in Section 4.1 within the respective
time periods set forth in Section 5.1 and on the terms and conditions
specified in Section 4.1.
(b) In the event of termination by Seller or Purchaser
pursuant to this Section 6.1, written notice thereof shall forthwith be given
to the other party and the transactions contemplated by this Agreement shall be
terminated, without further action by any party.
SECTION 6.2. AMENDMENTS AND WAIVERS.
This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto. By an instrument in
writing, Purchaser or Seller, as the case may be, may waive compliance by the
other party with any term or provision of this Agreement that such other party
was or is obligated to comply with or perform.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.1. NOTICES.
All notices and other communications hereunder shall be in
writing (including wire, telex, telecopy or similar writing) and shall he sent,
delivered or mailed, addressed, telexed or telecopied:
(a) if to Purchaser, to
Quarterdeck Corporation
00000 Xxxxxxxx Xxx
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
(b) if to Seller, to
XxxxXx.xxx, Inc.
X.X. Xxx 0000
Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
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with a copy to:
Xxxxxx & Xxxxxx
0000 Xxxxxx Xxx
Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Each such notice, request or other communication shall be given (i) by hand
delivery, (ii) by nationally recognized courier service or (iii) by telecopy,
receipt confirmed. Each such notice, request or communication shall be
effective (i) if delivered by hand or by nationally recognized courier service,
when delivered at the address specified in this Section 7.1 (or in accordance
with the latest written direction from such party) and (ii) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified in
this Section 7.1 (or in accordance with the latest written direction from such
party), and the appropriate answerback or confirmation is received.
SECTION 7.2. INTERPRETATION.
When a reference is made in this Agreement to a Section,
Schedule or Exhibit, such reference shall be to a Section, Schedule or Exhibit
of this Agreement unless otherwise indicated. The table of contents and
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
Whenever the words "included", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation". References to a Person are also to its successors and assigns and
references to any statute are also to all rules, regulations and orders
promulgated thereunder. All accounting terms not defined in this Agreement
shall have the meanings determined by generally accepted accounting principles.
"Affiliate" of any Person means any other Person controlling, controlled by or
under common control with the first Person.
SECTION 7.3. SEVERABILITY.
If any provision of this Agreement (or any portion thereof),
or the application of any such provision (or any portion thereof), to any
person, place or circumstances, shall be held by a court of competent
jurisdiction to be invalid, illegal, unenforceable or void, the remainder of
this Agreement and such provisions as applied to other persons, places and
circumstances shall remain in full force and effect.
SECTION 7.4. COUNTERPARTS.
This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties, it being understood that all parties need
not sign the same counterpart.
SECTION 7.5. ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES.
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This Agreement (including the documents and instruments
referred to herein) (i) constitutes the entire agreement and supersedes all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof and (ii) is not intended to confer
upon any person other than the parties hereto any rights or remedies hereunder.
SECTION 7.6. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, REGARDLESS OF THE LAWS
THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW.
SECTION 7.7. PUBLICITY.
Except in connection with seeking the orders referenced in
Section 1.4, so long as this Agreement is in effect, Seller shall not issue or
cause the publication of any press release or other public announcement with
respect to the transactions contemplated by this Agreement without the consent
of the Purchaser.
SECTION 7.8. ASSIGNMENT.
Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any party hereto without the prior
written consent of the other party, except that Purchaser may assign any part
of or all its rights and obligations to one or more corporations or other
entities all or substantially all the capital stock or equity interests in
which are owned by Purchaser or any Affiliate of Purchaser in which event all
the rights and powers of Purchaser hereunder shall extend to and be enforceable
by each such corporation or other entity; provided, however, that any such
assignment shall not release Purchaser from its obligations hereunder. Subject
to the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors
and assigns.
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IN WITNESS WHEREOF, Purchaser and Seller have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
TOC HOLDING COMPANY formerly known
as XXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
QUARTERDECK CORPORATION
By: /s/ Xxxxx X. Xxxxxx
_____________________________________
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
