\n 6.21 Joint Development Agreement…………………………………………………………… 42
\n 6.22 Financial Statements…………………………………………………………………. 42<\/p>\nARTICLE 7 CONDITIONS TO THE CLOSING……………………………………………………………………. 42<\/p>\n
7.1 Conditions to Each Party’s Obligation………………………………………………….. 42
\n 7.2 Condition to Buyer’s Obligation……………………………………………………….. 43
\n 7.3 Condition to Seller’s Obligation………………………………………………………. 45<\/p>\n
ARTICLE 8 SURVIVAL AND INDEMNIFICATION…………………………………………………………………. 46<\/p>\n
8.1 Survival……………………………………………………………………………. 46
\n 8.2 Indemnification……………………………………………………………………… 46
\n 8.3 Limitations on Indemnification………………………………………………………… 47
\n 8.4 Escrow Arrangements………………………………………………………………….. 47
\n 8.5 Indemnification Procedure…………………………………………………………….. 48
\n 8.6 Third Party Claims…………………………………………………………………… 49
\n 8.7 Escrow Agent’s Duties………………………………………………………………… 49<\/p>\n
ARTICLE 9 TERMINATION, AMENDMENT AND WAIVER…………………………………………………………….. 51<\/p>\n
9.1 Termination…………………………………………………………………………. 51
\n 9.2 Procedure for and Effect of Termination………………………………………………… 52
\n 9.3 Amendment…………………………………………………………………………… 52
\n 9.4 Extension; Waiver……………………………………………………………………. 53<\/p>\n
ARTICLE 10 MISCELLANEOUS……………………………………………………………………………… 53<\/p>\n
10.1 Notices…………………………………………………………………………….. 53
\n 10.2 Entire Agreement…………………………………………………………………….. 54
\n 10.3 No Third Party Beneficiaries………………………………………………………….. 54
\n 10.4 Headings……………………………………………………………………………. 55
\n 10.5 Severability………………………………………………………………………… 55
\n 10.6 Governing Law……………………………………………………………………….. 55
\n 10.7 Consent to Jurisdiction………………………………………………………………. 55
\n 10.8 Waiver of Jury Trial…………………………………………………………………. 55
\n 10.9 Assignment………………………………………………………………………….. 56
\n 10.10 Counterparts………………………………………………………………………… 56
\n 10.11 Fees and Expenses……………………………………………………………………. 56
\n 10.12 Specific Performance…………………………………………………………………. 56
\n 10.13 Exhibits and Schedules……………………………………………………………….. 56
\n 10.14 Other Remedies………………………………………………………………………. 56
\n<\/c><\/s><\/caption>\n<\/table>\n
-iii-<\/p>\n
ASSET PURCHASE AGREEMENT<\/p>\n
THIS ASSET PURCHASE AGREEMENT (this “Agreement”) is made and entered
\ninto as of February 25, 2003 by and between Overture Services, Inc., a Delaware
\ncorporation (“Buyer”), Fast Search & Transfer ASA, an organization organized
\nunder the laws of Norway (“Seller”, and together with Seller Subsidiaries as
\ndefined in Section 1.1(bbbb), the “Seller Group”), and U.S. Bank, National
\nAssociation, as escrow agent (“Escrow Agent”). Certain capitalized terms used
\nherein shall have the meanings given to them in ARTICLE 1.<\/p>\n
RECITALS<\/p>\n
A. Seller is engaged in the Business (as defined below).<\/p>\n
B. Buyer desires to purchase from Seller and Seller desires to
\nsell to Buyer, the assets related to the Business as set forth in this
\nAgreement; Seller and Buyer desire that Seller license back certain rights
\nthereto; and Buyer desires to assume certain liabilities of Seller related to
\nthe Business, all in consideration of the Purchase Price and on the terms and
\nconditions set forth herein and in the Ancillary Agreements (the “Acquisition”).<\/p>\n
C. Concurrently with the execution and delivery of this
\nAgreement, and as a material inducement to Buyer and Seller to enter into this
\nAgreement, Buyer and Seller are entering into the Transition Services Agreement,
\nIntellectual Property License Agreement, and the Interim Commercial Hosting
\nAgreement, all of which agreements shall be effective upon the Closing.<\/p>\n
D. In connection with the Acquisition, Buyer on the one hand,
\nand Seller on the other hand, desire to make certain representations,
\nwarranties, covenants and other agreements.<\/p>\n
AGREEMENT<\/p>\n
NOW, THEREFORE, in consideration of the premises and mutual promises
\nherein made, and in consideration of the representations, warranties, covenants,
\nconditions and other agreements herein contained and contained in the Ancillary
\nAgreements and for other good and valuable consideration, the receipt and
\nsufficiency of which are hereby acknowledged, and intending to be legally bound,
\nthe parties hereto agree as follows:<\/p>\n
ARTICLE 1<\/p>\n
DEFINITIONS AND CONSTRUCTION<\/p>\n
1.1 Definitions. The following capitalized terms shall have the
\nmeanings set forth below:<\/p>\n
(a) “Acquired Assets” shall have the meaning set forth in
\nSection 2.1.<\/p>\n
(b) “Acquisition” shall have the meaning set forth in the
\nrecitals.<\/p>\n
(c) “Agreement” shall have the meaning set forth in the
\npreamble.<\/p>\n
(d) “Ancillary Agreements” shall mean the General
\nAssignment, Assumption and Bill of Sale, the Interim Commercial Hosting
\nAgreement, the Intellectual Property License Agreement, and the Transition
\nServices Agreement.<\/p>\n
(e) “Asset Rep Schedule” shall mean any of Schedule
\n1.1(bbbb), Section 4.7 of the Disclosure Schedule, Schedule 4.9, Schedule 4.10,
\nSection 4.15(a) of the Disclosure Schedule, Section 4.15(c) of the Disclosure
\nSchedule, Section 4.16(a) of the Disclosure Schedule, Section 4.16(b)(i) of the
\nDisclosure Schedule, Section 4.16(h) of the Disclosure Schedule, Section 4.23 of
\nthe Disclosure Schedule, Section 4.24 of the Disclosure Schedule, or Section
\n4.25(a) of the Disclosure Schedule.<\/p>\n
(f) “Assumed Liabilities” shall have the meaning set
\nforth in Section 2.3.<\/p>\n
(g) “Balance Sheet Date” shall mean December 31, 2002.<\/p>\n
(h) “Base Price” shall mean Seventy Million Dollars
\n($70,000,000).<\/p>\n
(i) “Basket Amount” shall mean Three Hundred and Fifty
\nThousand Dollars ($350,000) in the aggregate.<\/p>\n
(j) “Books and Records” shall mean all papers and records
\n(in paper or electronic format) in Seller Group’s care, custody, or control
\nrelating to the Business, including all purchasing and sales records, customer
\nand vendor lists, customer contact information, customer correspondence,
\ncustomer licensing and purchasing histories, accounting and financial records,
\nproduct documentation, product specifications, marketing requirement documents
\nand software release orders.<\/p>\n
(k) “Business” shall mean the Seller Group’s “Internet
\nBusiness Unit” consisting of its algorithmic web search and paid inclusion
\nservices and its AlltheWeb.com URL and related business properties and
\nactivities.<\/p>\n
(l) “Business Employees” shall mean those employees of
\nthe Seller Group identified on Schedule 1.1(l).<\/p>\n
(m) “Business Financial Statements” shall mean the
\nunaudited balance sheet as of December 31, 2002 and the unaudited statements of
\nincome, cash flows, and changes in shareholder’s equity for the year ended
\nDecember 31, 2002.<\/p>\n
(n) “Buyer” shall have the meaning set forth in the
\npreamble.<\/p>\n
-2-<\/p>\n
(o) “Claim Certificate” shall mean a certificate signed
\nby an Indemnified Party, or any officer thereof: (i) stating that the
\nIndemnified Party has paid, sustained, incurred, or accrued, or reasonably
\nanticipates that it will have to pay, sustain, incur or accrue a Loss or Losses,
\nand (ii) specifying in reasonable detail the individual item(s) of Loss or
\nLosses included in the amount so stated, the date each such item was paid,
\nsustained, incurred, or properly accrued, or the basis for such anticipated
\nliability, and the nature of the misrepresentation or breach of warranty to
\nwhich such item is related.<\/p>\n
(p) “Closing” shall have the meaning set forth in Section
\n3.1.<\/p>\n
(q) “Closing Date” shall mean the date on which the
\nClosing occurs.<\/p>\n
(r) “Closing Financial Statements” shall have the meaning
\nset forth in Section 6.12.<\/p>\n
(s) “Code” shall mean the U.S. Internal Revenue Code of
\n1986, as amended, or any successor thereto.<\/p>\n
(t) “Confidential Information” shall have the meaning set
\nforth in the Mutual Nondisclosure Agreement.<\/p>\n
(u) “Conflict” shall have the meaning set forth in
\nSection 4.3(a).<\/p>\n
(v) “Consent Required Contract” shall mean the
\nagreements, contracts, indentures, instruments, guarantees or other similar
\nagreements identified on Schedule 1.1(v) (which schedule shall be updated at the
\nClosing by Seller to reflect the removal of agreements, contracts, indentures,
\ninstruments, guarantees or other similar agreements originally identified as of
\nthe date of this Agreement on Schedule 1.1(v), but which have been moved to
\nSchedule 1.1(jjjj) as a Transferred Contract pursuant to Section 6.7) which
\nrelate to the Business and which the Seller Group is willing to assign or
\ntransfer to Buyer pursuant to this Agreement, but which are not transferable or
\nassignable without the consent of the other party or parties to such agreements,
\ncontracts, indentures, instruments, guarantees or other similar agreements which
\nconsent has not been obtained as of the date of this Agreement or the Closing,
\nas applicable.<\/p>\n
(w) “Continuing Employees” shall mean any Business
\nEmployee who becomes or, pursuant to the terms hereof, should become an employee
\nof Buyer as a result of the Closing.<\/p>\n
(x) “Contract” shall mean any agreement, contract,
\nindenture, instrument, guarantee or other similar agreement, instrument or
\ncommitment, franchise or license.<\/p>\n
(y) “Copyrights” shall mean all copyrights, copyrights
\nregistrations and applications therefor, including all copyrights subject to
\nprotection under 17 U.S.C. Section 101, and all other rights corresponding
\nthereto throughout the world.<\/p>\n
-3-<\/p>\n
(z) “Data Center Termination Costs” means fifty (50%) of
\nLosses incurred by Buyer in connection with termination, on or after nine months
\nfollowing the Closing Date, of any Consent Required Contract or Transferred
\nContract related to Seller’s data center operations located in Sacramento,
\nCalifornia or London, England.<\/p>\n
(aa) “Deferred Support Accrual” shall have the meaning set
\nforth in Section 4.10.<\/p>\n
(bb) “Disclosing Party” shall have the meaning set forth
\nin the Mutual Nondisclosure Agreement.<\/p>\n
(cc) “Disclosure Schedule” shall mean the schedule of
\nexceptions to the representations and warranties and the listing of information
\nrequired under or made by Seller in ARTICLE 4, which schedule is delivered by
\nSeller to Buyer on the date of this Agreement.<\/p>\n
(dd) “Earn-Out” shall mean the additional amount of cash
\nto be paid by Buyer to Seller as part of the Purchase Price, on the terms and
\nconditions set forth in Schedule 3.2(b).<\/p>\n
(ee) “Employee Plan” shall mean any plan, program, policy,
\npractice, contract, agreement or other material arrangement providing for
\ncompensation, severance, termination pay, deferred compensation, performance
\nawards, stock or stock-related awards, subscription right awards, fringe
\nbenefits or other employee benefits or remuneration of any kind, whether
\nwritten, unwritten or otherwise, funded or unfunded, including any of the
\nforegoing arising out of the Norwegian Working Environment Act of 1977 and
\nincluding each “employee benefit plan” within the meaning of Section 3(3) of
\nERISA, which is or has been maintained, contributed to, or required to be
\ncontributed to, by Seller for the benefit of any Business Employee, or with
\nrespect to which the Seller Group has or may have any Liability to any Business
\nEmployee.<\/p>\n
(ff) “Environmental Permits” shall have the meaning set
\nforth in Section 4.26(c).<\/p>\n
(gg) “Equipment” shall have the meaning set forth in
\nSection 4.15(c).<\/p>\n
(hh) “Escrow Agent” shall have the meaning set forth in
\nthe recitals, or any successor entity or permitted assign.<\/p>\n
(ii) “Escrow Amount” shall mean twelve million seven
\nhundred fifty thousand dollars ($12,750,000).<\/p>\n
(jj) “Escrow Fund” shall have the meaning set forth in
\nSection 8.4(a).<\/p>\n
(kk) “Escrow Period” shall have the meaning set forth in
\nSection 8.4(b).<\/p>\n
(ll) “Escrow Termination Date” shall have the meaning set
\nforth in Section 8.1.<\/p>\n
(mm) “Exchange Act” shall mean the U.S. Securities
\nExchange Act of 1934, as amended, or any successor thereto.<\/p>\n
-4-<\/p>\n
(nn) “GAAP” shall mean, with respect to Buyer and Seller,
\nUnited States generally accepted accounting principles.<\/p>\n
(oo) “General Assignment, Assumption and Bill of Sale”
\nshall mean that certain agreement executed by Buyer and Seller and delivered at
\nthe Closing, the form of which is attached hereto as Exhibit A.<\/p>\n
(pp) “Governmental Authorization” shall mean each consent,
\nlicense, permit, grant or other authorization issued to the Seller Group by a
\nGovernmental Entity pursuant to which Seller currently operates or holds any
\ninterest in the Acquired Assets.<\/p>\n
(qq) “Governmental Entity” shall mean any court,
\nadministrative agency or commission or other federal, state, county, local or
\nother foreign governmental authority, instrumentality, agency or commission.<\/p>\n
(rr) “Hazardous Material” shall mean any amount of any
\nsubstance that has been designated by any Governmental Entity or by applicable
\nlaw to be radioactive, toxic, hazardous or otherwise a danger to health or the
\nenvironment, including PCBs, asbestos, petroleum, and urea-formaldehyde and all
\nsubstances listed as hazardous substances pursuant to the Comprehensive
\nEnvironmental Response, Compensation, and Liability Act of 1980, as amended, or
\ndefined as a hazardous waste pursuant to the United States Resource Conservation
\nand Recovery Act of 1976, as amended, and the regulations promulgated pursuant
\nto said laws, other than office and janitorial supplies properly and safely
\nmaintained.<\/p>\n
(ss) “Hazardous Materials Activities” shall have the
\nmeaning set forth in Section 4.26(b).<\/p>\n
(tt) “Indebtedness” shall mean (i) any indebtedness,
\nwhether or not contingent, in respect of borrowed money or evidenced by bonds,
\nnotes, debentures or other similar instruments or letters of credit (or
\nreimbursement agreements in respect thereof) or banker’s acceptances, (ii)
\ncapital lease obligations, (iii) any balance deferred and unpaid for the
\npurchase price of any property, (iv) all indebtedness of others secured by a
\nlien on any asset, (v) outstanding checks that will be funded by borrowed money,
\nwhether current or long-term, secured or unsecured, and (vi) to the extent not
\notherwise included in the immediately preceding clauses, any guaranty of any
\nindebtedness of any other Person.<\/p>\n
(uu) “Indemnified Parties” shall mean Buyer and its
\nofficers, directors, affiliates and agents.<\/p>\n
(vv) “IP” shall mean any Technology and Intellectual
\nProperty Rights, including Registered Intellectual Property Rights.<\/p>\n
(ww) “Intellectual Property License Agreement” shall mean
\nthe intellectual property license agreement attached hereto as Exhibit B.<\/p>\n
-5-<\/p>\n
(xx) “Intellectual Property Rights” shall mean any or all
\nof the following and all statutory and\/or common law rights throughout the world
\nin, arising out of, or associated therewith: (i) all Patents; (ii) all Trade
\nSecret rights; (iii) all Copyrights, mask works, and mask work registrations and
\napplications, and any other rights in works of authorship; (iv) all industrial
\ndesigns and any registrations and applications therefor; (v) all Trademarks;
\n(vi) all rights in databases and data collections (including knowledge
\ndatabases, customer lists and customer databases); (vii) all rights in Software;
\n(viii) rights to Uniform Resource Locators, Web site addresses and domain names;
\n(ix) any similar, corresponding or equivalent rights to any of the foregoing.<\/p>\n
(yy) “Interim Commercial Hosting Agreement” shall mean
\nthat certain agreement executed and delivered by the parties concurrently with
\nthis Agreement in the form set forth on Exhibit D hereto.<\/p>\n
(zz) “Joint Development Agreement” shall mean an agreement
\nintended to be negotiated by Buyer and Seller and executed by them prior to the
\nClosing Date, which agreement is intended to be substantially on the terms set
\nforth in Schedule 1.1(zz).<\/p>\n
(aaa) “Key Employees” shall mean those employees identified
\non Schedule 1.1 (aaa)<\/p>\n
(bbb) “Latent Liability” shall mean any Liability arising
\nout of any violation of law, breach of Contract or tort which violation, breach
\nor tort occurred prior to the Closing.<\/p>\n
(ccc) “Lease Agreements” shall have the meaning set forth
\nin Section 4.15(a).<\/p>\n
(ddd) “Liability” shall mean any and all debts, liabilities
\nand obligations, whether accrued, unaccrued, fixed, absolute, contingent,
\nmatured, unmatured, determined, determinable, including those arising under any
\nlaw, claim, action, suit, arbitration, inquiry, proceeding or investigation by
\nany national, federal, state, municipal or local law or other government,
\ngovernmental, regulatory or administrative authority, agency or commission of
\nany court, tribunal or judicial or arbitral body and those arising under any
\nContract or undertaking.<\/p>\n
(eee) “Liens” shall mean any mortgage, lien, pledge,
\ncharge, security interest or encumbrance of any kind whatsoever in respect of
\nany asset, other than liens for Taxes not yet due and payable.<\/p>\n
(fff) “Loss” shall mean any claim (including without
\nlimitation by way of correspondence to responsible persons), loss, Liability,
\ndamage, deficiency, cost or expense, including reasonable attorneys’ fees and
\nexpense of investigation and defense.<\/p>\n
(ggg) “Material Adverse Effect” shall mean any change,
\nevent or effect that has been or is reasonably expected to be materially adverse
\nto (i) the Acquired Assets (tangible or intangible), (ii) the Business or its
\ncondition (financial or otherwise) or operations, (iii) the results of<\/p>\n
-6-<\/p>\n
operations of the Seller Group related to the Business, or (iv) the Seller
\nGroup’s ability to consummate the transactions contemplated hereby.<\/p>\n
(hhh) “Mutual Nondisclosure Agreement” shall mean that
\ncertain mutual nondisclosure agreement dated as of August 15, 2001, as amended
\non June 28, 2002, by and between Buyer and Seller.<\/p>\n
(iii) “Obligations” shall have the meaning set forth in
\nSection 8.4(c)(ii).<\/p>\n
(jjj) “Offer Letter” shall mean an offer letter of
\n“at-will” employment on Buyer’s standard form, or in the case of all Business
\nEmployees employed in Norway, the United Kingdom or Germany, a confirmation of
\ntransfer of employment in accordance with applicable laws as those are referred
\nto in Section 3.5 below.<\/p>\n
(kkk) “Offered Employees” shall mean those Business
\nEmployees identified on Schedule 1.1(kkk) and all Business Employees employed in
\nNorway, the United Kingdom or Germany.<\/p>\n
(lll) “Patents” shall mean all United States, Norwegian and
\nother international and foreign patents and utility models and applications
\ntherefor, and all reissues, divisions, re-examinations, renewals, extensions,
\nprovisionals, continuations and continuations-in-part thereof, and equivalent or
\nsimilar rights anywhere in the world in inventions and discoveries, including
\nwithout limitation, invention disclosures and any rights therein.<\/p>\n
(mmm) “Permitted Liens” shall have the meaning set forth in
\nSection 4.15(a).<\/p>\n
(nnn) “Person” shall mean an individual, a partnership, a
\nlimited liability company, a corporation, an association, a joint stock
\ncorporation, a trust, a joint venture, an unincorporated organization, or a
\nGovernmental Entity.<\/p>\n
(ooo) “Possessed Assets” shall mean any (i) Patent, (ii)
\nCopyright for which a tangible embodiment is any Technology or other asset
\ndelivered to Buyer or any Buyer Subsidiary in connection with the transactions
\ncontemplated hereby or (iii) tangible asset delivered to Buyer or any Buyer
\nSubsidiary in connection with the transactions contemplated hereby.<\/p>\n
(ppp) “Possessed Asset Schedule” shall mean any of Schedule
\n1.1(dddd), Schedule 1.1(llll) and Schedule 1.1(mmmm) hereto.<\/p>\n
(qqq) “Products” shall mean the products of the Seller
\nGroup which shall include “FAST Web Search 3.4” and “Partnersite 1.1”, and any
\nand all derivatives or predecessors of all such products.<\/p>\n
(rrr) “PTO” shall mean the United States Patent and
\nTrademark Office and the Norwegian Patent Office, or any successor thereto.<\/p>\n
-7-<\/p>\n
(sss) “Purchase Price” shall mean the consideration to be
\ndelivered by Buyer to Seller in connection with the Acquisition, which consists
\nof the Base Price plus the Earn-Out, if any.<\/p>\n
(ttt) “Receiving Party” shall have the meaning set forth in
\nthe Mutual Nondisclosure Agreement.<\/p>\n
(uuu) “Registered Intellectual Property Rights” shall mean
\nall United States, Norwegian and other international and foreign: (i) Patents;
\n(ii) Trademarks; (iii) registered Copyrights and applications to register
\nCopyrights; (iv) domain name registrations; and (v) any other Intellectual
\nProperty Rights that are the subject of an application, certificate, filing,
\nregistration or other document issued, filed with or recorded by any
\nGovernmental Entity.<\/p>\n
(vvv) “Remaining Portion” shall have the meaning set forth
\nin Section 8.4(b).<\/p>\n
(www) “Returns” shall have the meaning set forth in Section
\n4.22(a).<\/p>\n
(xxx) “Securities Act” shall mean the U.S. Securities Act
\nof 1933, as amended.<\/p>\n
(yyy) “Self-Executing Transferable Assets” shall mean any
\nand all Patents and Patent applications arising out of, relating to, or claiming
\npriority to, or from which a priority is claimed with respect to, any of the
\nPatents or Patent applications listed on Schedule 1.1(mmmm), whether or not
\npending, issued, expired, abandoned or closed.<\/p>\n
(zzz) “Seller” shall have the meaning set forth in the
\npreamble, and shall include, to the extent necessary and appropriate, the Seller
\nSubsidiaries.<\/p>\n
(aaaa) “Seller Real Property” shall have the meaning set
\nforth in Section 4.15(a).<\/p>\n
(bbbb) “Seller Subsidiaries” shall mean the domestic and
\nforeign subsidiaries of Seller listed on Schedule 1.1(bbbb), each of which owns
\nassets related to the Business and\/or employs Business Employees.<\/p>\n
(cccc) “Software” shall mean any and all computer software
\nand code, including algorithms, routines, assemblers, applets, compilers, source
\ncode, object code, data (including image and sound data), design tools and user
\ninterfaces, in any form or format, however fixed including source code listings
\nand documentation.<\/p>\n
(dddd) “Tangible Assets” shall mean the tangible assets
\nidentified on Schedule 1.1(dddd), which shall also set forth the date of
\nacquisition and original purchase price of each such asset.<\/p>\n
(eeee) “Tax” and “Taxes” shall mean any and all federal,
\nstate, local and foreign taxes, assessments and other governmental charges,
\nduties, impositions and liabilities, including taxes based upon or measured by
\ngross receipts, income, profits, sales, use and occupation, and value<\/p>\n
-8-<\/p>\n
added, ad valorem, transfer, franchise, withholding, payroll, recapture,
\nemployment, excise and property taxes as well as public imposts, fees and social
\nsecurity charges (including health, unemployment and pension insurance),
\ntogether with all interest, penalties and additions imposed with respect to such
\namounts and any obligation under any agreement or arrangement with any other
\nPerson with respect to such amounts and including any liability for taxes of a
\npredecessor entity.<\/p>\n
(ffff) “Technology” shall mean all information and
\ntechnology, tangible copies, embodiments and things, in any media of any or all
\nof the following: (i) Software; (ii) inventions (whether or not patented or
\npatentable), improvements, and other technology, (iii) Trade Secrets; (iv)
\ndatabases, works of authorship, data compilations and technical data; (v) tools,
\nmethodologies, processes, devices, prototypes, schematics, and hardware
\ndevelopment tools; but in each case, not the Intellectual Property Rights
\ntherein.<\/p>\n
(gggg) “Third Party IP” shall mean any Technology or
\nIntellectual Property Right of a third party or in the public domain (including
\nOpen Source Software) or any modification or derivative thereof that was used
\nin, incorporated into, integrated or bundled with any Technology that is or was,
\nused in the Business, incorporated in, or used in the development or compilation
\nof any Product, or listed in Schedule 1.1(gggg).<\/p>\n
(hhhh) “Trademarks” shall mean trade names, logos,
\ntrademarks and service marks, trademark and service mark registrations and
\napplications.<\/p>\n
(iiii) “Trade Secrets” shall mean trade secrets and other
\nknow-how, show-how, technical data, techniques, or other confidential or
\nproprietary information.<\/p>\n
(jjjj) “Transferred Contract” shall mean the agreements,
\ncontracts, indentures, instruments, guarantees or similar agreements identified
\non Schedule 1.1(jjjj) (which schedule shall be updated at the Closing by Seller
\nto reflect the addition of agreements, contracts, indentures, instruments,
\nguarantees or other similar agreements originally identified as of the date of
\nthis Agreement on Schedule 1.1(v) as a Consent Required Contract but which have
\nbeen moved to Schedule 1.1(jjjj) pursuant to Section 6.7) which do not require
\nconsent to assignment from a third party or for which consent to assignment from
\na third party has been obtained prior to the Closing.<\/p>\n
(kkkk) “Transferred IP” shall mean (i) the Transferred
\nIntellectual Property Rights and (ii) the Transferred Technology.<\/p>\n
(llll) “Transferred Intellectual Property Rights” shall mean
\n(i) the Transferred Patents; (ii) the Transferred Trademarks; and (iii) all
\nother Intellectual Property Rights owned or transferable by Seller (1) embodied
\nby, or which would be infringed by the making, using, offering for sale,
\nselling, importing, copying, modifying, distributing or other exploitation of,
\nthe Products, the Transferred Technology or operation of the Business; including
\nall Copyrights embodied by the Products; (2) related to, or necessary for, the
\noperation of the Business; or (3) listed or described in Schedule 1.1(llll)<\/p>\n
-9-<\/p>\n
(mmmm) “Transferred Patents” shall mean (i) the Patents and
\nPatent applications listed on Schedule 1.1(mmmm), (ii) any and all Patents and
\nPatent applications arising out of, relating to, or claiming priority to, or
\nfrom which a priority is claimed with respect to, any of the Patents or Patent
\napplications listed on Schedule 1.1(mmmm), whether or not pending, issued,
\nexpired, abandoned or closed, and (iii) any other Patent or Patent application
\nwith a filing date prior to the anniversary of the Closing Date related to the
\nBusiness.<\/p>\n
(nnnn) “Transferred Technology” shall mean all Technology
\nowned or transferable by Seller (other than the Licensed Technology) related to
\nthe Business or the Acquired Assets, including all Technology listed on Schedule
\n1.1(nnnn). To the extent that any Software constitutes Transferred Technology,
\nall versions and releases of such Software, and the Software from which such
\nSoftware was derived, in both source and object code form, shall be included as
\nTransferred Technology.<\/p>\n
(oooo) “Transferred Trademarks” shall mean all Trademarks
\nowned or transferable by Seller (i) related to the Business, the Products or the
\nAcquired Assets; or (ii) listed or described in Schedule 1.1(oooo).<\/p>\n
(pppp) “Transfer Taxes” shall mean all sales, use,
\nvalue-added, gross receipts, excise, registration, stamp, duty, transfer and
\nother similar taxes and governmental fees.<\/p>\n
(qqqq) “Transition Services Agreement” shall mean that
\ncertain agreement executed and delivered by the parties on the date of this
\nAgreement and effective upon the Closing attached hereto as Exhibit C.<\/p>\n
(rrrr) “Unsatisfied Claim Amount” shall have the meaning set
\nforth in Section 8.4(b).<\/p>\n
1.2 Interpretation and Construction.<\/p>\n
(a) All references in this Agreement to “Articles,”
\n“Sections,” “Schedules” and “Exhibits” refer to the articles, sections,
\nschedules and exhibits of this Agreement, unless otherwise indicated.<\/p>\n
(b) As used in this Agreement, neutral pronouns and any
\nvariations thereof shall be deemed to include the feminine and masculine and all
\nterms used in the singular shall be deemed to include the plural, and vice
\nversa, as the context may require.<\/p>\n
(c) The words “hereof,” “herein” and “hereunder” and
\nother words of similar import refer to this Agreement as a whole, as the same
\nmay from time to time be amended or supplemented, and not to any subdivision
\ncontained in this Agreement.<\/p>\n
(d) The word “including” when used herein is not intended
\nto be exclusive and means “including, without limitation.”<\/p>\n
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(e) The parties agree that they have been represented by
\ncounsel during the negotiation and execution of this Agreement and, therefore,
\nwaive the application of any law, regulation, holding or rule of construction
\nproviding that ambiguities in an agreement or other document will be construed
\nagainst the party drafting such agreement or document.<\/p>\n
(f) The “$” symbol refers to United States Dollars,
\nunless otherwise specified.<\/p>\n
ARTICLE 2<\/p>\n
ASSETS AND LIABILITIES<\/p>\n
2.1 Acquired Assets. Subject to the terms and conditions set forth
\nin this Agreement, Seller hereby agrees at the Closing to sell, convey, transfer
\nand assign, or cause the Seller Group to sell, convey, transfer and assign, to
\nBuyer or one or more domestic or foreign subsidiaries of Buyer designated by
\nBuyer prior to the Closing (“Buyer Subsidiaries”), and Buyer hereby agrees to
\npurchase or cause Buyer Subsidiaries to purchase from the Seller Group all of
\nthe Seller Group’s rights, title and interest in and to the assets set forth
\nbelow, free and clear of any and all Liens (collectively, the “Acquired
\nAssets”):<\/p>\n
(a) The Tangible Assets;<\/p>\n
(b) The Transferred Intellectual Property Rights (other
\nthan the Transferred Trademarks);<\/p>\n
(c) The Transferred Trademarks and all goodwill of the
\nBusiness appurtenant thereto;<\/p>\n
(d) The Transferred Technology;<\/p>\n
(e) The Transferred Contracts;<\/p>\n
(f) The Books and Records;<\/p>\n
(g) All brochures, user manuals, graphics and art work
\n(in each case, in paper and electronic format) and UPC codes relating to the
\nProducts; and<\/p>\n
(h) All rights to recover past, present and future
\ndamages for infringement or misappropriation of any of the Transferred
\nIntellectual Property Rights, or for breach of any of the Transferred Contracts.<\/p>\n
2.2 Excluded Assets. Except as set forth in Section 2.1 the assets
\nof the Seller Group shall not be deemed to be Acquired Assets and shall be
\nexcluded from the assets delivered by the Seller Group to Buyer or the Buyer
\nSubsidiaries at the Closing.<\/p>\n
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2.3 Assumed Liabilities. As of the Closing, Buyer hereby agrees
\nthat Buyer and\/or one or more Buyer Subsidiaries as determined by Buyer will
\nassume, pay or discharge when due only the following obligations or liabilities
\nof the Seller Group (collectively, the “Assumed Liabilities”):<\/p>\n
(a) Those executory obligations of the Seller Group under
\nthe Transferred Contracts;<\/p>\n
2.4 Excluded Liabilities. Except as provided in Section 2.3, Buyer
\nand the Buyer Subsidiaries shall not assume by virtue of this Agreement, and
\nshall have no liability or obligation for, any Liability of the Seller Group,
\nincluding:<\/p>\n
(a) Any Indebtedness;<\/p>\n
(b) Any Latent Liability;<\/p>\n
(c) Any Liability which is past-due as of the Closing;<\/p>\n
(d) Any Liability relating to, arising out of or
\nresulting from any Employee Plan<\/p>\n
(e) All payments or entitlements which are due to be paid
\nprior to the Closing Date to the Continuing Employees in connection with their
\nemployment (including, without prejudice to the generality of the foregoing, all
\nwages, other remuneration, holiday pay, pension contributions and taxation); and
\nall payments which are due to be paid prior to the Closing Date (including,
\nwithout prejudice to the generality of the foregoing, pension contributions,
\ninsurance premiums and taxation) to any third party in connection with the
\nemployment of any of the Continuing Employees;<\/p>\n
(f) Except as set forth in Section 6.16 hereof, any
\nLiability for Taxes for, arising from or attributable to any taxable period or
\nportion thereof ending on or prior to the Closing Date (including the portion of
\nany real or personal property taxes or similar taxes attributable to such
\nperiod); and<\/p>\n
(g) Any Liability to the extent arising from or related
\nto the Excluded Assets.<\/p>\n
2.5 Dispute Regarding Acquired Assets<\/p>\n
(a) At any time prior to the date that is twelve months
\nafter the Closing Date, in the event that the representations and warranties of
\nSeller in Section 4.28 hereof or any Asset Rep Schedule may be inaccurate or
\nuntrue in any respect, then if such inaccuracy or untruth could be corrected if
\nany Possessed Asset had been included on such Asset Rep Schedule or any
\nPossessed Asset Schedule, then Buyer shall have the right to amend any Possessed
\nAsset Schedule to include such omitted Possessed Asset and such amendment shall
\nhave the same effect as if such Possessed Asset had been included on such
\nPossessed Asset Schedule as of the date hereof.<\/p>\n
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(b) At any time prior to the date that is twelve months
\nafter the Closing Date, Buyer shall have the right to notify Seller in writing
\nthat the representations made by Seller in Section 4.28 hereof or in any Asset
\nRep Schedule are or were not true and correct and that an additional transfer or
\nlicense of assets, rights, documents or items is necessary in light thereof (an
\n“Asset Dispute Notice”). If any inaccuracy or untruth in the representations and
\nwarranties of Seller identified in any Asset Dispute Notice could be corrected
\nby a transfer of any asset other than a Possessed Asset to Buyer or a Buyer
\nSubsidiary, then the Seller Group shall take all appropriate action to effect
\nsuch a transfer of such asset to Buyer or a Buyer Subsidiary. Upon delivery of
\nan Asset Dispute Notice, Buyer and Seller shall negotiate in good faith in an
\nattempt to resolve the dispute within seven (7) days of such delivery. If the
\nparties are unable to resolve the dispute after good faith negotiation during
\nthat period, either party may demand arbitration of the dispute and the dispute
\nshall be settled by arbitration conducted by three (3) arbitrators. Buyer and
\nSeller shall each select one arbitrator, and the two (2) arbitrators so selected
\nshall select a third arbitrator. The arbitrators shall set a limited time period
\nfor resolution of the dispute, which time period shall not exceed 30 days
\n(unless determined unanimously by the arbitrators that such time period shall be
\nextended) and the arbitrators shall establish procedures designed to reduce the
\ncost and time for discovery while allowing the parties an opportunity, adequate
\nin the sole judgment of the arbitrators, to discover relevant information from
\nthe opposing parties about the subject matter of the dispute. The arbitrators
\nshall rule upon motions to compel or limit discovery and shall have the
\nauthority to impose sanctions, including attorneys’ fees and costs, to the same
\nextent as a court of law or equity, should the arbitrators determine that
\ndiscovery was sought without substantial justification or that discovery was
\nrefused or objected to without substantial justification. The decision of a
\nmajority of the three (3) arbitrators as to the resolution of the dispute
\nregarding an Asset Dispute Notice and this Section 2.5 shall be binding and
\nconclusive upon the parties to this Agreement, and Buyer and Seller shall be
\nentitled to act in accordance with such decision. Such decision shall be written
\nand shall be supported by written findings of fact and conclusions which shall
\nset forth the award, judgment, decree or order awarded by the arbitrators.
\nJudgment upon any award rendered by the arbitrators may be entered in any court
\nhaving jurisdiction. Any such arbitration shall be held in Los Angeles County,
\nCalifornia under the rules then in effect of the American Arbitration
\nAssociation.<\/p>\n
(c) Notwithstanding anything herein to the contrary,
\nnothing in this Section 2.5 shall affect Buyer’s rights pursuant to ARTICLE 8
\nhereof.<\/p>\n
ARTICLE 3<\/p>\n
CLOSING AND PURCHASE PRICE<\/p>\n
3.1 Closing. The closing of the transactions contemplated by this
\nAgreement (the “Closing”) shall take place at the offices of Wilson Sonsini
\nGoodrich & Rosati, Professional Corporation, 650 Page Mill Road, Palo Alto,
\nCalifornia commencing at 10:00 a.m., Pacific Time, on the date that is two (2)
\nbusiness days following the satisfaction or written waiver of the conditions of<\/p>\n
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Closing set forth in ARTICLE 7 hereof (other than those conditions which by
\ntheir terms are not to be satisfied until the Closing, but subject to the waiver
\nor fulfillment of those conditions), or such other date or location as the
\nparties may mutually determine.<\/p>\n
3.2 Purchase Price. Payment of the Purchase Price by Buyer and\/or,
\nas determined by Buyer, one or more Buyer Subsidiaries, will be made as follows:<\/p>\n
(a) Base Price. At the Closing, Buyer and\/or, as
\ndetermined by Buyer, one or more Buyer Subsidiaries, will, by transfer of
\nimmediately available funds to a bank account designated in writing by Seller,
\ndeliver the Base Price, less the Escrow Amount, to Seller.<\/p>\n
(b) Earn-Out. Upon the satisfaction of the conditions set
\nforth in Schedule 3.2(b), Buyer and\/or, as determined by Buyer, one or more
\nBuyer Subsidiaries, will deliver the aggregate amount of cash constituting the
\nEarn-Out, or such portion thereof as is specified in Schedule 3.2(b), to Seller.<\/p>\n
3.3 Closing Date Deliveries of Seller. In addition to the
\nrequirements of the Seller Group under Section 2.1, at the Closing, the Seller
\nGroup shall deliver, or cause to be delivered, to Buyer at the Seller Group’s
\nsole cost, in the manner and form, and to the locations, reasonably specified by
\nBuyer:<\/p>\n
(a) The Acquired Assets, including (i) with respect to
\nthe Transferred Contracts, a complete, accurate and legible copy of each such
\nContract (including all amendments and supplements thereto); (ii) with respect
\nto the Transferred Contracts that were Consent Required Contracts as of the date
\nof this Agreement, a written consent by the third parties thereto to the
\ntransfer and assignment of such Consent Required Contract to Buyer and\/or, as
\ndetermined by Buyer, one or more Buyer Subsidiaries, and (iii) with respect to
\nall Software included in the Acquired Assets, such delivery to be made by
\nelectronic means;<\/p>\n
(b) The duly executed General Assignment, Assumption and
\nBill of Sale executed by Seller and, as appropriate, Seller Subsidiaries, which
\nshall be in full force and effect;<\/p>\n
(c) Duly executed assignments of the Transferred
\nIntellectual Property Rights, including assignments of the Transferred Patents,
\nwhich shall be in full force and effect;<\/p>\n
(d) With respect to each of the Products or any item of
\nthe Transferred Technology for which the Seller Group has filed a Copyright
\nregistration with the United States Copyright Office, an assignment in form
\nreasonably acceptable to Buyer to record the transfer of such Copyright to Buyer
\nand\/or, as determined by Buyer, one or more Buyer Subsidiaries, in the United
\nStates Copyright Office. If the Seller Group has not registered such Copyright
\nprior to the Closing Date, Seller shall deliver to Buyer at the Closing an
\napplication, in a form reasonably acceptable to Buyer, to register such
\nCopyright in the current version of each Product or other work, authorship or
\nlicense in the Transferred Technology with the United States Copyright Office,
\nto the extent such Product or Transferred Technology is disclosed in the
\nDisclosure Schedule or to the<\/p>\n
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extent such application is otherwise reasonably requested by Buyer. Each such
\napplication shall include the required extracts of the Product Software for such
\napplication and shall specify Buyer (or an entity identified by Buyer) as the
\nowner by assignment of such Copyright;<\/p>\n
(e) The duly executed certificate of Seller required by
\nSection 7.2(l).<\/p>\n
(f) The opinion of legal counsel of Seller required by
\nSection 7.2(m);<\/p>\n
(g) The duly executed Ancillary Agreements to which
\nSeller or any member of the Seller Group is a party that were not delivered on
\nthe date of this Agreement, which Ancillary Agreements shall be in full force
\nand effect;<\/p>\n
(h) Such other duly executed, good and sufficient
\ninstruments of sale, conveyance, assignment or transfer, in form and substance
\nreasonably acceptable to Buyer’s counsel, executed by one or more members of the
\nSeller Group, reasonably necessary so as to vest in Buyer good and valid title
\nin and to the Acquired Assets (including, with respect to any Acquired Assets
\nlocated or to be located in any jurisdiction, one or more bills of sale or
\nsimilar conveyance documents as may be required under the law of the applicable
\njurisdiction to validly convey, assign and transfer such Acquired Assets).<\/p>\n
(i) Patent prosecution files and all other documentation
\nrelevant to the Transferred Intellectual Property Rights; and<\/p>\n
(j) All Software included in the Transferred Technology
\nin electronic format.<\/p>\n
3.4 Closing Date Deliveries of Buyer. At the Closing, Buyer
\nand\/or, as determined by Buyer, one or more Buyer Subsidiaries, shall deliver,
\nor cause to be delivered, to Seller the following:<\/p>\n
(a) The Base Price, less the Escrow Amount;<\/p>\n
(b) The duly executed certificates of Buyer required by
\nSections 7.3(d) and 7.3(e); and<\/p>\n
(c) The duly executed General Assignment, Assumption and
\nBill of Sale, which shall be in full force and effect; and<\/p>\n
(d) The duly executed Ancillary Agreements to which Buyer
\nis a party that were not delivered on the date of this Agreement, which
\nAncillary Agreements shall be in full force and effect.<\/p>\n
3.5 Transfer of Employees. The Continuing Employees shall become
\nemployees of Buyer, and\/or, as determined by Buyer, one or more Buyer
\nSubsidiaries, with effect from the Closing Date. For those Continuing Employees
\nsubject to the protections of Norwegian law, the<\/p>\n
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transfer of such employment from the Seller Group to Buyer, and\/or, as
\ndetermined by Buyer, one or more Buyer Subsidiaries, shall be subject to, and in
\naccordance with, the rules laid down by the Norwegian Working Environment Act of
\n1977, Chapter 12A, and Seller Group and Buyer undertake to perform all acts
\nnecessary in order to facilitate said transfer, including but not limited to,
\nsigning necessary documents, preparing and giving required presentations, and
\nattending meetings. For the German Continuing Employees subject to the
\nprotections of German law, the transfer of such employment shall be subject to,
\nand in accordance with, the mandatory provisions of Section 613a German Civil
\nCode. For the United Kingdom Continuing Employees subject to the protections of
\nUnited Kingdom law, the transfer of such employment shall be subject to, and in
\naccordance with, the Transfer of Undertaking (Protection of employment)
\nRegulations 1981.<\/p>\n
ARTICLE 4<\/p>\n
REPRESENTATIONS AND WARRANTIES OF SELLER<\/p>\n
Except as set forth or identified in the Disclosure Schedule
\n(referencing the appropriate section and paragraph numbers), Seller on behalf of
\nitself and each of its subsidiaries hereby represents and warrants to Buyer as
\nfollows. Disclosures made under one subsection heading of the Disclosure
\nSchedule shall be deemed as disclosure relating to one or more other subsections
\nof this Agreement to the extent such disclosure would be appropriate in such
\nother subsection(s), provided that such disclosure is either cross-referenced or
\nthe application of such disclosure to such other subsection(s) is clearly
\nevident from the substance, language and context of such disclosure.<\/p>\n
4.1 Organization. Seller is duly organized, validly existing and
\nin good standing under the laws of Norway. Seller has all requisite power to own
\nand use the properties owned and used by it and to carry on the Business as
\ncurrently conducted and as currently proposed to be conducted. Seller is duly
\nqualified, licensed or admitted to do business and is in good standing as a
\nforeign corporation in each jurisdiction in which the conduct of the Business
\nmakes such qualification, licensing or admission necessary. Seller has delivered
\na true, correct and complete copy of its Articles of Association, as amended to
\ndate and in full force and effect on the date hereof, to Buyer. The operations
\nnow being conducted by Seller relating to the Business or the Acquired Assets
\nhave not now and have never been conducted under any other name. Seller is not
\nin violation of any of the provisions of its Articles of Association.<\/p>\n
4.2 Authorization. Seller has all requisite power and authority to
\nenter into this Agreement and each of the Ancillary Agreements to which it is a
\nparty and to consummate the transactions contemplated hereby and thereby. The
\nexecution and delivery of this Agreement and each of the Ancillary Agreements to
\nwhich Seller is a party and the consummation of the transactions contemplated
\nhereby and thereby have been duly authorized by all necessary action on the part
\nof Seller, and no further action is required on the part of Seller or its
\nstockholders to approve, adopt or authorize this Agreement, any of the Ancillary
\nAgreements or any of the transactions contemplated hereby or thereby. This
\nAgreement has been duly executed and delivered<\/p>\n
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by Seller, assuming the due authorization, execution and delivery by Buyer,
\nconstitutes the valid and binding obligation of Seller, enforceable against
\nSeller in accordance with its terms.<\/p>\n
4.3 Noncontravention.<\/p>\n
(a) The execution and delivery of this Agreement and the
\nAncillary Agreements to which Seller is a party does not, and the consummation
\nof the transactions contemplated hereby and thereby will not, (i) conflict with
\nany provision of Seller’s Articles of Association, (ii) conflict with, or result
\nin (with or without notice or lapse of time or both) any violation of, or
\ndefault under, or give rise to a right of termination, cancellation,
\nmodification or acceleration of any obligation or loss of any benefit under (any
\nsuch event, a “Conflict”) any Transferred Contract, Consent Required Contract or
\nGovernmental Authorization or other material Contract to which Seller or any of
\nits subsidiaries is a party or applicable to Seller’s or any of its
\nsubsidiaries’ properties or assets, or (iii) violate any judgment, order,
\ndecree, statute, law, ordinance, rule or regulation applicable to the Business
\nor the Acquired Assets.<\/p>\n
(b) The execution and delivery of this Agreement and any
\nAncillary Agreements to which Seller or any Seller Subsidiary is a party, and
\nthe consummation of the transactions contemplated hereby and thereby, does not
\nrequire any notice under any Transferred Contract or Consent Required Contract.<\/p>\n
4.4 Consents. No consent, waiver, approval, order or authorization
\nof, or registration, declaration or filing with, any Governmental Entity or any
\nthird party to a Transferred Contract or Consent Required Contract (except
\nconsent required to assign such Consent Required Contract to Buyer), is required
\nby, or with respect to, Seller or any of its subsidiaries in connection with the
\nexecution and delivery of this Agreement or the Ancillary Agreements to which
\nSeller is a party or the consummation of the transactions contemplated hereby or
\nthereby.<\/p>\n
4.5 Contracts. Seller and its subsidiaries are in compliance with
\nand have not breached, violated or defaulted under, any of the terms or
\nconditions of any Transferred Contract or Consent Required Contract, nor is
\nSeller or any of its subsidiaries aware of any event that would constitute such
\na breach, violation or default (with or without the giving of notice, lapse of
\ntime or both) nor to Seller’s or any of its subsidiaries’ knowledge is any party
\nto any Transferred Contract or Consent Required Contract other than Seller or
\nany of its subsidiaries in breach or default under any of the terms or
\nconditions thereof.<\/p>\n
4.6 Seller Subsidiaries. Each Seller Subsidiary is duly organized,
\nvalidly existing and in good standing under the laws of its respective
\njurisdiction of incorporation, and has the requisite power to own and use the
\nproperties owned and used by it and to carry on the Business as currently
\nconducted and as currently proposed to be conducted. Each Seller Subsidiary has
\nthe requisite power and authority to enter into each Ancillary Agreement to
\nwhich it is a party and to consummate the transactions contemplated by this
\nAgreement and such Ancillary Agreements. The execution and delivery by each
\nSeller Subsidiary of each Ancillary Agreement to which it is a party and the
\nconsummation of the transactions contemplated by this Agreement and such
\nAncillary Agreements<\/p>\n
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has been duly authorized by all necessary action on the part of each Seller
\nSubsidiary, and no further action is required on the part of such Seller
\nSubsidiary to approve, adopt or authorize the transactions contemplated hereby
\nand thereby. Seller beneficially owns, directly or indirectly, all of the
\noutstanding securities of each Seller Subsidiary. Schedule 1.1(bbbb) contains a
\nfull and complete list of all of Seller’s subsidiaries, with specific reference
\nto the Seller Subsidiaries owning assets related to the Business, and no assets
\nof the Business, including the Acquired Assets, are owned by any entities other
\nthan Seller and Seller Subsidiaries.<\/p>\n
4.7 Governmental Authorizations. Section 4.7 of the Disclosure
\nSchedule lists each Governmental Authorization. Each such Governmental
\nAuthorization is in full force and effect.<\/p>\n
4.8 Listed Company Filings. Seller has complied in all material
\nrespects with the requirements under the Norwegian Securities Act or the Stock
\nExchange Act and regulations applicable to Seller’s position as a company listed
\non the Oslo Stock Exchange. The filings made by Seller in connection therewith
\ndo not contain any untrue statement of a material fact and Seller has not
\nomitted to state a material fact required to be stated therein or necessary to
\nmake the statements therein, in light of the circumstances under which they were
\nmade, not misleading. The financial statements and other financial information
\nregarding Seller contained or referenced in such filings complied as to form in
\nall material respects with the applicable Norwegian rules and regulations with
\nrespect thereto, were prepared in accordance with GAAP applied on a consistent
\nbasis throughout the periods indicated and fairly presented the consolidated
\nfinancial position of Seller and its consolidated subsidiaries as of the
\nrespective dates thereof and the consolidated results of Seller’s operations and
\ncash flows for the periods indicated (subject to, in the case of unaudited
\nfinancial statements, normal and recurring year-end audit adjustments that are
\nnot material).<\/p>\n
4.9 Business Financial Statements. The Business Financial
\nStatements attached hereto as Schedule 4.9 are true and correct in all material
\nrespects, (b) fairly represent the financial condition and results of operations
\nof the Business as of the dates and for the periods so indicated, and (c) are
\nprepared in accordance with GAAP on a basis consistent throughout the periods
\nindicated and consistent with each other. The Closing Financial Statements to be
\ndelivered at Closing will be true and correct in all material respects, (b) will
\nfairly represent the financial condition and results of operations of the
\nBusiness as of the dates and for the periods so indicated, and (c) will be
\nprepared in accordance with GAAP on a basis consistent throughout the periods
\nindicated and consistent with each other.<\/p>\n
4.10 Support Contracts. Schedule 4.10 of the Disclosure Schedule
\nsets forth a true and complete list of all Consent Required Contracts and
\nTransferred Contracts pursuant to which Seller or any of its subsidiaries is
\nobligated to provide support or maintenance to customers, together with the
\namounts of deferred revenue that are associated with executory support
\nobligations under such Consent Required Contracts and Transferred Contracts
\n(each, a “Deferred Support Accrual”). Each Deferred Support Accrual is as
\nreflected in the Books and Records and has been accrued in accordance with GAAP,
\nconsistently applied, and each arose in the ordinary course of business
\nconsistent with past practices. Seller has not given any warranties or
\nindemnities relating to the<\/p>\n
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Products or any other products or Technology sold or licensed or services
\nrendered by Seller related to the Business or the Acquired Assets.<\/p>\n
4.11 Absence of Certain Changes or Events. Since the Balance Sheet
\nDate, there has not been, occurred or arisen any:<\/p>\n
(a) Transaction by Seller or any of its subsidiaries
\nrelated to the Business or the Acquired Assets except in the ordinary course of
\nbusiness as conducted prior to that date and consistent with past practices;<\/p>\n
(b) Destruction of, damage to, or loss of any asset,
\nbusiness or customer of Seller or any of its subsidiaries related to the
\nBusiness (whether or not covered by insurance);<\/p>\n
(c) Change in accounting methods or practices (including
\nany change in depreciation or amortization policies or rates) by Seller or any
\nof its subsidiaries related to the Business or the Acquired Assets;<\/p>\n
(d) Revaluation by Seller or any of its subsidiaries of
\nany of the Acquired Assets (whether tangible or intangible), including writing
\noff notes or accounts receivable (other than write offs of accounts receivable
\nin the ordinary course of business consistent with past practices which are
\nimmaterial in the aggregate);<\/p>\n
(e) Increase in the salary or other compensation payable
\nor to become payable by Seller or any of its subsidiaries to any Business
\nEmployee, or the declaration, payment or commitment or obligation of any kind
\nfor the payment (whether in cash, stock or otherwise) by Seller or any of its
\nsubsidiaries of a severance payment, termination payment, bonus or other
\nadditional salary or compensation to any Business Employee;<\/p>\n
(f) Other than in the ordinary course of business
\nconsistent with past practices, sale, lease, license or other disposition of any
\nof the assets (whether tangible or intangible) or properties of Seller or any of
\nits subsidiaries related to the Business, including the sale of any accounts
\nreceivable of Seller or any of its subsidiaries related to the Business, or any
\ncreation of any security interest in the Acquired Assets;<\/p>\n
(g) The commencement, settlement or notice, or to
\nSeller’s or any of its subsidiaries’ knowledge threat, of any lawsuit,
\nproceeding or other investigation against Seller or any of its subsidiaries
\nrelated to the Business or the Acquired Assets, or any reasonable basis for any
\nof the foregoing;<\/p>\n
(h) (i) Sale, license or transfer of any Intellectual
\nProperty Rights of Seller or any of its subsidiaries related to the Business or
\nthe Acquired Assets or entering into any agreement with respect to any
\nIntellectual Property Rights of Seller or any of its subsidiaries related to the
\nBusiness or the Acquired Assets with any Person, other than non-exclusive
\nlicenses granted to end-user customers in the ordinary course of business
\nconsistent with past practices, (ii) purchase or license of<\/p>\n
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any Intellectual Property Rights or entering into any agreement with respect to
\nthe Intellectual Property Rights of any Person related to the Business or the
\nAcquired Assets, (iii) entering into any agreement with respect to the
\ndevelopment of any Intellectual Property Rights with a third party related to
\nthe Business or the Acquired Assets, or (iv) change in pricing or royalties set
\nor charged by Seller or any of its subsidiaries to its customers or licensees or
\nin pricing or royalties set or charged by Persons who have licensed IP to Seller
\nor any of its subsidiaries related to the Business or the Acquired Assets;<\/p>\n
(i) Agreement or modification to any agreement pursuant
\nto which any other Person was granted marketing, distribution, development or
\nsimilar rights of any type or scope with respect to any products or technology
\nof Seller or any of its subsidiaries related to the Business or the Acquired
\nAssets;<\/p>\n
(j) Employment dispute, including but not limited to,
\nclaims or matters raised by any individuals or any workers’ representative
\norganization, bargaining unit or union regarding labor trouble or claim of
\nwrongful discharge or other unlawful employment or labor practice or action with
\nrespect to the Business or the Acquired Assets;<\/p>\n
(k) Waiver or release of any right or claim of Seller or
\nany of its subsidiaries related to the Business or the Acquired Assets;<\/p>\n
(l) Lease, license, sublease or other occupancy of any of
\nthe real properties used in connection with the Business;<\/p>\n
(m) Any event or condition of any character that has had
\nor is reasonably likely to have a Material Adverse Effect; or<\/p>\n
(n) Agreement by Seller or any of its subsidiaries to do
\nany of the things described in the preceding clauses (a) through (m) of this
\nSection 4.11 (other than negotiations with Buyer and its representatives
\nregarding the transactions contemplated by this Agreement and the Ancillary
\nAgreements).<\/p>\n
4.12 Absence of Undisclosed Liabilities. Neither Seller nor any of
\nits subsidiaries has any Liability, indebtedness, obligation, expense, claim,
\ndeficiency, guaranty or endorsement of any type, whether accrued, absolute,
\ncontingent, matured, unmatured or other (whether or not required to be reflected
\nin financial statements in accordance with GAAP) related to the Business or the
\nAcquired Assets, which individually or in the aggregate is material or is
\nreasonably likely to become material and has not been reflected in the Business
\nFinancial Statements.<\/p>\n
4.13 Brokers’ and Finders’ Fees. Neither Seller nor any of its
\nsubsidiaries has any liability or obligation to pay any fees or commissions to
\nany broker or finder with respect to the transactions contemplated hereby for
\nwhich Buyer could become liable or obligated.<\/p>\n
-20-<\/p>\n
4.14 Compliance with Laws. Seller and its subsidiaries are in
\ncompliance with all applicable foreign, federal, state or local statutes, laws
\nand regulations with respect to the conduct or operation of the Business and the
\nAcquired Assets.<\/p>\n
4.15 Title to Property; Condition of Property; Absence of Liens.<\/p>\n
(a) Section 4.15(a) of the Disclosure Schedule sets forth
\na list of the addresses of all real property currently owned, leased or
\nsubleased by or from Seller or any of its subsidiaries or otherwise used or
\noccupied by Seller or any of its subsidiaries for the operation of the Business
\nor any of the Acquired Assets (the “Seller Real Property”), the name of the
\nlessor, master lessor and\/or lessee, if applicable, the date and term of the
\nlease or sublease, if applicable, and each amendment thereto and, with respect
\nto any current lease, the aggregate annual rental payable under any such lease.
\nWith respect to Seller Real Property that is owned by Seller or any of its
\nsubsidiaries, Seller or such subsidiary has good and valid title to such owned
\nSeller Real Property, free and clear of any Liens, except (i) as reflected in
\nthe Current Balance Sheet, (ii) Liens for Taxes not yet due and payable, and
\n(iii) such non-monetary imperfections of title and encumbrances, if any, which
\ndo not materially detract from the value or materially interfere with the
\npresent use of the property subject thereto or affected thereby (the items in
\nclauses (i), (ii) and (iii) shall be referred to as “Permitted Liens”). Seller
\nhas provided Buyer with true, correct and complete copies of all leases, lease
\nguaranties, subleases, agreements for the leasing, use or occupancy of, or
\notherwise granting a right in or relating to the Seller Real Property, including
\nall amendments, terminations and modifications thereof (the “Lease Agreements”).
\nThere are no other Lease Agreements for real property affecting the Seller Real
\nProperty or to which Seller or any of its subsidiaries is bound. All such Lease
\nAgreements are in full force and effect, are valid and enforceable against
\nSeller or its subsidiaries and, to Seller’s and its subsidiaries’ knowledge,
\nagainst any other party thereto, in accordance with their respective terms, and
\nthere is not, under any of such Lease Agreements, any existing default or event
\nof default by Seller or any of its subsidiaries or, to Seller’s or any of its
\nsubsidiaries’ knowledge, by any other party thereto (or event which with notice
\nor lapse of time, or both, would constitute a default by Seller or any of its
\nsubsidiaries or, to Seller’s or any of its subsidiaries’ knowledge, by any other
\nparty thereto). Neither the operations of Seller or any of its subsidiaries on
\nthe Seller Real Property nor, to Seller’s or any of its subsidiaries’ knowledge,
\nsuch Seller Real Property, including the improvements thereon, violate in any
\nmaterial respect any applicable building code, zoning requirement, or
\nclassification or statute relating to the particular property or such
\noperations, and such non-violation is not dependent, in any instance, on
\nso-called non-conforming use exceptions. There are no other parties occupying,
\nor with a right to occupy, the Seller Real Property. None of Seller nor any of
\nits subsidiaries has received any notice of default, alleged failure to perform,
\nor any offset or counterclaim with respect to any such Lease Agreement, which
\nhas not been fully remedied and withdrawn. The Closing will not affect the
\nenforceability against Seller or any of its subsidiaries or, to Seller’s or any
\nof its subsidiaries’ knowledge, against any other party thereto, of any such
\nLease Agreement or the rights of Seller or any of its subsidiaries or Buyer to
\nthe continued use and possession of the Seller Real Property for the conduct of
\nthe Business or the Acquired Assets as it is presently conducted.<\/p>\n
-21-<\/p>\n
(b) Each member of the Seller Group has good and valid
\ntitle to, or, in the case of leased properties and assets, valid leasehold
\ninterests in, all of its respective tangible properties and assets, real,
\npersonal and mixed, used or held for use in the Business, free and clear of any
\nLiens, except Permitted Liens. The tangible properties and assets of Seller and
\nits subsidiaries used in the Business are in good operating condition and
\nrepair, normal wear and tear excepted, and is otherwise suitable for the conduct
\nof the Business as currently conducted.<\/p>\n
(c) Section 4.15(c) of the Disclosure Schedule identifies
\nall material items of equipment, machinery, furniture, fixtures, and tangible
\npersonal property (collectively, the “Equipment”) owned or leased by Seller or
\nany of its subsidiaries for use in the Business and identifies if any such items
\nare subject to any Lien or encumbrance, other than Permitted Liens, and such
\nEquipment (i) constitutes all of the material tangible assets of Seller and its
\nsubsidiaries used in or related to the Business, (ii) is reasonably adequate for
\nthe conduct of the Business of Seller and each of its subsidiaries as currently
\nconducted, and (iii) is in good operating condition, regularly and properly
\nmaintained, subject to normal wear and tear, and reasonably fit and usable for
\nthe purposes for which they are being used.<\/p>\n
4.16 Intellectual Property.<\/p>\n
(a) Section 4.16(a) of the Disclosure Schedule contains a
\ncomplete and accurate list of all Products and description of the Technology
\nmaterial or necessary to the operation of the Business as currently conducted by
\nSeller or as reasonably contemplated to be conducted by Buyer following the
\nClosing, consistent with Seller’s past practice.<\/p>\n
(b) Section 4.16(b)(i) of the Disclosure Schedule lists
\nall Transferred Intellectual Property Rights related to the Business or the
\nAcquired Assets that are Registered Intellectual Property Rights. All such
\nRegistered Intellectual Property Rights are currently in compliance with formal
\nlegal requirements (including payment of filing, examination and maintenance
\nfees and proofs of use), are valid and enforceable to the extent consistent with
\napplicable law, and are not subject to any unpaid maintenance fees or taxes or
\nactions due within 180 days of the date of this Agreement; provided no
\nrepresentation is made with respect to any actions arising from events occurring
\nafter the execution of this Agreement and prior to Closing that were not known
\nto Seller prior to the execution of this Agreement. There are no proceedings or
\nactions known to Seller or any of its subsidiaries before any court, tribunal
\n(including the PTO or equivalent authority anywhere in the world) related to any
\nsuch Registered Intellectual Property Rights. Neither Seller nor any of its
\nsubsidiaries have any knowledge of any facts or circumstances that would render
\nany Transferred Intellectual Property Rights invalid or unenforceable (it being
\nunderstood that no representation is made regarding whether or not such
\nTransferred Intellectual Property Rights could have been claimed or asserted in
\na more expansive manner than has been done), nor has Seller or any of its
\nsubsidiaries taken, or failed to take, any action in the application for or
\nprosecution of Transferred Intellectual Property Rights that are Registered
\nIntellectual Property Rights that would render such Transferred Intellectual
\nProperty Rights invalid or unenforceable. Neither Seller nor any of its
\nsubsidiaries have claimed any status in the application for or registration of
\nany Registered<\/p>\n
-22-<\/p>\n
Intellectual Property Rights, including “small business status,” that would not
\nbe applicable to Buyer.<\/p>\n
(c) Each item of Transferred IP is free and clear of any
\nLiens. Seller owns exclusively, and has good title to all works of authorship
\nand all associated Copyrights that are used or embodied in, the Transferred
\nTechnology, and no other Person has any other rights thereto. All Acquired
\nAssets will be fully transferable, alienable or licensable by Buyer without
\nrestriction and without payment of any kind to any third party.<\/p>\n
(d) To the extent that any Transferred IP was originally
\nowned, invented or created by or for any third party, including any predecessor
\nof Seller or any of its subsidiaries: (i) Seller has a written agreement with
\nsuch third party or parties with respect thereto, pursuant to which Seller has
\nobtained complete, unencumbered and unrestricted ownership and is the exclusive
\nowner of, all such Transferred IP by valid assignment or otherwise; (ii) the
\ntransfers from Seller to Buyer hereunder do not violate such third party
\nContracts; (iii) such third parties have not retained and do not have any rights
\nor licenses with respect to the Transferred IP; and (iv) no basis exists for
\nsuch third party to challenge or object to this Agreement or the transactions
\ncontemplated hereby.<\/p>\n
(e) Seller has the full and unencumbered right to assign
\nand transfer to Buyer all of Seller’s and its subsidiaries’ rights in and under
\nthe Consent Required Contracts and Transferred Contracts without incurring, or
\ncausing Buyer to incur, any obligation to any third party, including any royalty
\nobligations, other than those obligations that Seller would have had had such
\ntransfer not taken place.<\/p>\n
(f) Neither Seller nor any of its subsidiaries has
\ntransferred ownership of, or granted any license of or right to use, or
\nauthorized the retention of any rights to use, any Transferred IP to any other
\nPerson, except for non-exclusive licenses to Products granted in the ordinary
\ncourse.<\/p>\n
(g) The Transferred IP constitutes all of the IP related
\nto, used in, necessary to, or that would be infringed by, the operation of the
\nBusiness as currently conducted by Seller, or as reasonably anticipated to be
\nconducted by Buyer following the Closing, including without limitation, the
\ndesign, development, manufacture, use, import, distribution or sale of the
\nProducts.<\/p>\n
(h) The Transferred Patents include (i) all Patents and
\nPatent applications of the Seller Group in which any employee that is a Business
\nEmployee is or should be a named inventor under applicable United States or
\nEuropean Patent laws and regulations; and (ii) any Patent that is or would be
\ninfringed by the operation of the Business or the making, using or selling of
\nany Product.<\/p>\n
(i) No government funding, facilities of a university,
\ncollege, other educational institution or research center or funding from third
\nparties was used in the creation or development of the Transferred IP. No
\ncurrent or former employee, consultant or independent contractor, who was
\ninvolved in, or who contributed to, the creation or development of any
\nTransferred Technology, has performed services for the government, a university,
\ncollege, or other educational institution, or<\/p>\n
-23-<\/p>\n
a research center, during a period of time during which such employee,
\nconsultant or independent contractor was also performing services used in the
\ncreation or development of the Transferred IP.<\/p>\n
(j) Seller has, and as a result of the transactions
\ncontemplated hereby, Buyer will have, the right to use, pursuant to valid
\nlicenses, all Transferred Technology, including Software development tools,
\nlibrary functions, compilers and all other third-party Software that are related
\nto the Business or that are used in the Business to create, modify, compile,
\noperate or support any Software (including the Products) that is Transferred
\nTechnology.<\/p>\n
(k) No Third Party Technology, including any Open Source
\nSoftware (as defined Section 4.16(z) below), was or is, used in, incorporated
\ninto, integrated or bundled with, or used in the development or compilation
\n(other than generally available commercial compilers) of, any Technology that is
\nor was a Transferred Technology or a Product.<\/p>\n
(l) There are no contracts, licenses or agreements to
\nwhich Seller or any of its subsidiaries is a party with respect to any
\nTransferred IP.<\/p>\n
(m) Neither (i) the operation of the Business, including
\nthe making, using, selling, maintaining, licensing and distribution of the
\nProducts, by either Seller or any of its subsidiaries or, following the Closing,
\nby Buyer consistent with Seller’s past practice, nor (ii) the Acquired Assets,
\ndid, do, or will: (A) infringe or misappropriate the Intellectual Property
\nRights of any Person; (B) violate the rights of any Person (including rights to
\nprivacy or publicity); or (C) constitute unfair competition or trade practices
\nunder the laws of any jurisdiction. Neither Seller nor any of its subsidiaries
\nhave received notice from any Person claiming that the Business or the Acquired
\nAssets infringe or misappropriate the Intellectual Property Rights of any Person
\nor constitute unfair competition or trade practices under the laws of any
\njurisdiction (nor does Seller or any of its subsidiaries have knowledge of any
\nbasis therefor).<\/p>\n
(n) No licenses or other consents are required from any
\nthird party to permit Buyer to fully exploit the Acquired Assets consistent with
\nSeller’s past practice.<\/p>\n
(o) There are no contracts, licenses or agreements
\nbetween Seller or any of its subsidiaries and any other Person with respect to
\nthe Acquired Assets, including the Transferred IP, under which there is any
\ndispute or any dispute threatened in writing regarding the scope of such
\nagreement or performance under such agreement.<\/p>\n
(p) Neither Seller nor any of its subsidiaries has any
\nreason to believe that any Person is infringing or misappropriating the
\nTransferred Intellectual Property Rights, it being understood that no
\nrepresentation is made regarding generalized suspicion of software piracy.<\/p>\n
(q) Seller and its subsidiaries have taken all reasonable
\nsteps that are required to protect their respective rights in confidential
\ninformation and Trade Secrets associated with or related to the Acquired Assets
\nconsistent with reasonable commercial practice.<\/p>\n
-24-<\/p>\n
(r) No third party possesses any copy of any source code
\nto any Software that is Transferred Technology (including any Product) and
\nSeller shall have delivered to Buyer all copies, and neither Seller nor any of
\nits subsidiaries shall have retained any copy, of any source code to any
\nSoftware that is Transferred Technology, except as permitted under the
\nIntellectual Property License Agreement.<\/p>\n
(s) [Intentionally Omitted]<\/p>\n
(t) Seller and its subsidiaries have and enforce a policy
\nrequiring each employee and consultant of Seller and its subsidiaries to execute
\na proprietary rights and confidentiality agreement substantially in the form set
\nforth in Section 4.16(t) of the Disclosure Schedule and all current and former
\nemployees and consultants of Seller and its subsidiaries who have created or
\nmodified any of the Transferred Technology have executed such an agreement
\nassigning all of such employees’ and consultants’ rights in and to the
\nTransferred Technology and the Transferred Intellectual Property Rights to
\nSeller.<\/p>\n
(u) No Acquired Asset is subject to any proceeding or
\noutstanding decree, order, judgment, agreement or stipulation that restricts in
\nany manner the use, transfer or licensing thereof or may affect the validity,
\nuse or enforceability of the Acquired Assets.<\/p>\n
(v) Neither Seller nor any of its subsidiaries is
\nrequired to make or accrue any royalty payment to any third party in connection
\nwith any of the Acquired Assets.<\/p>\n
(w) To the extent that Seller or any of its subsidiaries
\nhas distributed or licensed any Product to an end user pursuant to any form of
\nencryption key: (i) Seller has a written agreement with each such end user
\nrequiring such end user to protect the confidentiality of such key; (ii) Seller
\nhas delivered to Buyer a true and complete list of all third parties who have
\nhad access to any such keys; (iii) no third party has had access to any such
\nkeys, except pursuant to clause (i) above; and (iv) Seller has delivered to
\nBuyer any such keys and the Technology to generate such keys and has not
\nretained any such keys or such Technology.<\/p>\n
(x) Neither this Agreement nor the transactions
\ncontemplated hereby, including the assignment to Buyer, by operation of law or
\notherwise, of any Contract to which Seller or any of its subsidiaries is a
\nparty, will result in Buyer granting to any third party any right to or with
\nrespect to any IP owned by, or licensed to, Buyer prior to Closing.<\/p>\n
(y) Except as disclosed to Buyer in writing by Seller
\nprior to the date hereof, Seller knows of no material defect which would prevent
\nthe Products or Transferred Technology from being used by Buyer to satisfy
\ncurrent end user expectations or expectations of entities who license or
\npurchase rights to display search results generated by the Products, with regard
\nto the functionality and performance of the Products, including when the
\nProducts are used at higher than reasonably anticipated usage levels.<\/p>\n
-25-<\/p>\n
(z) No Technology that is open source, public source or
\nfreeware, or any modification or derivative thereof, including any version of
\nany Software licensed pursuant to any GNU general public license or limited
\ngeneral public license (collectively, “Open Source Software”) was used in,
\nincorporated into, integrated or bundled with any Transferred IP, or used in the
\nBusiness or the development of compilation of any Products.<\/p>\n
(aa) Seller has not retained any Patents related to, or
\nthe prosecution or enforcement or which, could adversely affect the validity or
\nenforceability of the Transferred Patents. None of the Transferred Patents, or
\nany Patents related thereto, are subject to a terminal disclaimer.<\/p>\n
(bb) Seller and its subsidiaries have at all time complied
\nwith all applicable legal requirements relating to privacy, data protection and
\nthe collection and use personal information and user information gathered or
\naccessed in the course of the operations of Seller or any of its subsidiaries.
\nSeller and its subsidiaries have at all times complied in all respects with all
\nrules, policies and procedures established by Seller or any of its subsidiaries
\nfrom time to time with respect to privacy, data protection or collection and use
\nof personal information and user information gathered or accessed in the course
\nof the operations of Seller or any of its subsidiaries. No claims have been
\nasserted or, to the knowledge of Seller, threatened against Seller or any of its
\nsubsidiaries (and to the knowledge of Seller, no such claims are likely to be
\nasserted or threatened against Seller or any of its subsidiaries) by any person
\nor entity alleging a violation of such person’s or entity’s privacy, personal or
\nconfidentiality rights under any such rules, policies or procedures. The
\nexecution of this Agreement and the consummation of the transactions
\ncontemplated herein will not breach or otherwise cause any violation of any such
\napplicable legal requirements related to privacy, data protection or the
\ncollection and use of personal information and user information gathered or
\naccessed in the course of the operations of Seller or any of its subsidiaries.<\/p>\n
(cc) With respect to all personal and user information
\ndescribed in Section 4.16(bb), Seller and its subsidiaries have at all times
\ntaken all steps reasonably necessary (including, without limitation,
\nimplementing and monitoring compliance with adequate measures with respect to
\ntechnical and physical security) to ensure that the information is protected
\nagainst loss and against unauthorized access, use, modification, disclosure or
\nother misuse. To the knowledge of Seller, there has been no unauthorized access
\nto or other misuse of that information.<\/p>\n
4.17 Litigation. There is no action, suit or proceeding of any
\nnature pending, or to Seller’s or any of its subsidiaries’ knowledge threatened,
\nby or against Seller or any of its subsidiaries with respect to or involving the
\nBusiness, the Acquired Assets or the transactions contemplated hereby. There is
\nno investigation by a Governmental Entity pending, or to Seller’s or any of its
\nsubsidiaries’ knowledge, threatened, by or against Seller or any of its
\nsubsidiaries with respect to or involving the Business or the Acquired Assets.
\nNo Governmental Entity has provided Seller or any of its subsidiaries with
\nnotice challenging or questioning the legal right of Seller or any of its
\nsubsidiaries to conduct the operations of the Business, to use the Acquired
\nAssets or to consummate the transactions contemplated hereby.<\/p>\n
-26-<\/p>\n
4.18 Restrictions on Business Activities. There is no agreement
\n(not to compete or otherwise), commitment, judgment, injunction, order or decree
\nrelating to the Business or the Acquired Assets or otherwise binding upon the
\nBusiness or the Acquired Assets which has or may have the effect of prohibiting
\nor impairing any practice of the Business, any acquisition of property (whether
\ntangible or intangible) by Buyer in connection with the operation of the
\nBusiness or the Acquired Assets or the conduct of the Business. Neither Seller
\nnor any of its subsidiaries have entered into or is bound by any agreement which
\nplaces any restrictions upon Seller or any of its subsidiaries, or which, after
\nthe Closing, would place any restrictions upon Buyer, with respect to selling,
\nlicensing or otherwise distributing any of the Products or the Transferred
\nIntellectual Property Rights and Transferred Technology to, or providing
\nservices to, customers or potential customers or any class of customers, in any
\ngeographic area, during any period of time or in any segment of the market.<\/p>\n
4.19 No Liquidation, Insolvency or Winding-Up.<\/p>\n
(a) No order has been made, petition presented or
\nresolution passed for the winding-up or liquidation of Seller or any of its
\nsubsidiaries and there is not outstanding any:<\/p>\n
(i) Order for the winding-up of Seller or any of
\nits subsidiaries;<\/p>\n
(ii) Appointment of a receiver over the whole or
\npart of the assets of Seller or any of its subsidiaries;<\/p>\n
(iii) Petition or order for administration of
\nSeller or any of its subsidiaries under bankruptcy, insolvency or similar law;<\/p>\n
(iv) Voluntary arrangement between Seller or any
\nof its subsidiaries and any of its creditors under any bankruptcy, insolvency or
\nsimilar law; or<\/p>\n
(v) Distress or execution or other process levied
\nin respect of Seller or any of its subsidiaries that remains undischarged.<\/p>\n
(b) To Seller’s knowledge, there are no circumstances
\nthat would entitle any Person to present a petition for the winding-up or
\nadministration of Seller or any of its subsidiaries or to appoint a receiver
\nover the whole or any part of the undertaking or assets of Seller or any of its
\nsubsidiaries.<\/p>\n
(c) Neither Seller nor any of its subsidiaries is deemed
\nunable to pay its debts as they come due within the meaning of applicable law.<\/p>\n
(d) Neither the operations of Seller nor any of its
\nsubsidiaries have been terminated.<\/p>\n
-27-<\/p>\n
4.20 Absence of Powers of Attorney. Other than as provided for in
\nSection 6.15(b), there are no outstanding powers of attorney executed on behalf
\nof Seller or any of its subsidiaries affecting the Business or the Acquired
\nAssets that will not expire by its terms upon the Closing.<\/p>\n
4.21 Bulk Transfer Laws. There are no current or past creditors of
\nSeller or any of its subsidiaries to whom any law, rule or regulation requires
\nthe delivery of notice or from whom any form of consent (except consent to
\ntransfer the Consent Required Contracts) is required in conjunction with
\nundertaking the transactions contemplated by this Agreement.<\/p>\n
4.22 Tax Returns and Audits.<\/p>\n
(a) To the extent relevant to the Acquired Assets or the
\nBusiness, as of the Closing Date, Seller and its subsidiaries will have prepared
\nand timely filed all required returns, estimates, information statements and
\nreports (“Returns”) relating to any and all Taxes concerning or attributable to
\nSeller and its subsidiaries or their respective operations and such Returns are
\nor will be true, correct and complete and have been or will be completed in
\naccordance with applicable law.<\/p>\n
(b) To the extent the failure to do so would adversely
\nimpact Buyer, any Buyer Subsidiary, the Acquired Assets, Buyer’s or any Buyer
\nSubsidiary’s use of the Acquired Assets or the operation of the Business, as of
\nthe Closing Date, Seller or its subsidiaries (i) will have paid all Taxes it is
\nrequired to pay and (ii) will have withheld with respect to its employees all
\nincome taxes and social security and similar fees, Federal Insurance
\nContribution Act, Federal Unemployment Tax Act and other Taxes required to be
\nwithheld.<\/p>\n
(c) To the extent failure to do so would adversely impact
\nBuyer, any Buyer Subsidiary, the Acquired Assets, Buyer or any Buyer
\nSubsidiary’s use of the Acquired Assets or operation of the Business, neither
\nSeller nor any of its subsidiaries have been delinquent in the payment of any
\nTax, nor is there any Tax deficiency outstanding, assessed or proposed against
\nSeller or any of its subsidiaries, nor has Seller or any of its subsidiaries
\nexecuted any waiver of any statute of limitations on or extending the period for
\nthe assessment or collection of any Tax.<\/p>\n
(d) To the extent relevant to the Acquired Assets or the
\nBusiness, no audit or other examination of any Return of Seller or any of its
\nsubsidiaries is in progress, nor has Seller or any of its subsidiaries been
\nnotified of any request for such an audit or other examination.<\/p>\n
(e) Neither Seller nor any of its subsidiaries has or
\nknows of any basis for the assertion of any claim for any liabilities for unpaid
\nTaxes for which Buyer or any Buyer Subsidiary would become liable as a result of
\nthe transactions contemplated by this Agreement.<\/p>\n
(f) There are (and immediately following the Closing
\nthere will be) no Liens on the Acquired Assets relating to or attributable to
\nTaxes.<\/p>\n
-28-<\/p>\n
(g) Neither Seller nor any of its subsidiaries knows of
\nany basis for the assertion of any claim relating or attributable to Taxes that,
\nif adversely determined, would result in any Lien on the Acquired Assets.<\/p>\n
4.23 Customers and Suppliers. Section 4.23 of the Disclosure
\nSchedule identifies and sets forth a true and complete list of (a) the ten (10)
\nlargest customers of the Business (by dollar volume) and (b) the five (5)
\nlargest suppliers of the Business (by dollar volume), for the most recently
\ncompleted fiscal year of Seller. No such customer or supplier has ceased or
\nmaterially reduced its purchases from, or sales or provision of services to,
\nSeller or any of its subsidiaries since the Balance Sheet Date, or to Seller’s
\nor any of its subsidiaries’ knowledge, threatened to cease or materially reduce
\nsuch purchases or sales or provision of services. To Seller’s and its
\nsubsidiaries’ knowledge, no such customer or supplier is threatened with or has
\nthreatened bankruptcy or insolvency.<\/p>\n
4.24 Insurance. Section 4.24 of the Disclosure Schedule contains a
\ntrue, correct and complete list of all insurance policies and bonds maintained
\nby Seller and its subsidiaries related to the Business, any of the Acquired
\nAssets or the Assumed Liabilities. Each policy listed in Section 4.24 of the
\nDisclosure Schedule is valid and binding and in full force and effect, all
\npremiums due and payable under all such policies and bonds have been paid and
\nSeller and its subsidiaries are otherwise in compliance with the terms of such
\npolicies and bonds. Seller (or any other Person to whom any such policy has been
\nissued) has not received any written notice of cancellation or termination of,
\nany such policies.<\/p>\n
4.25 Employee Matters.<\/p>\n
(a) Section 4.25(a) of the Disclosure Schedule contains
\n(i) a list of the Business Employees and (ii) a true and complete list of all
\nremuneration payable and other benefits provided which Seller or any of its
\nsubsidiaries is bound to provide (whether at present or in the future) to each
\nsuch employee, or any person connected with any such employee, and includes, if
\nany, particulars of all profit sharing, incentive and bonus arrangements to
\nwhich Seller or any of its subsidiaries is a party, whether legally binding or
\nnot.<\/p>\n
(b) Section 4.25(b) of the Disclosure Schedule contains
\nan accurate and complete list of each Employee Plan. Seller has delivered to
\nBuyer correct and complete copies of all documents embodying each Employee Plan,
\nincluding all amendments thereto and all related trust documents.<\/p>\n
(c) Neither Seller nor any of its subsidiaries has
\nmaintained, established, sponsored, participated in, or contributed to, any (i)
\n“employee pension benefit plan” within the meaning of Section 3(2) of ERISA
\nsubject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or
\nSection 412 of the Code, or (ii) “multiemployer plan” within the meaning of
\nSection (3)(37) of ERISA, in either case for the benefit of any Business
\nEmployee.<\/p>\n
(d) None of the Business Employees has received a pension
\ngrant or any other kind of voluntary pension benefit.<\/p>\n
-29-<\/p>\n
(e) Since the Balance Sheet Date, none of the Business
\nEmployees has given or received notice of termination of employment and neither
\nSeller nor any of its subsidiaries has given notice of any reduction to any
\nemployee or Governmental Entity or started consultations with any trade union
\npursuant to any statute or regulation.<\/p>\n
(f) No collective bargaining agreement exists that is
\nbinding on Seller or any of its subsidiaries with respect to the Business
\nEmployees, and to Seller’s and its subsidiaries knowledge, no petition has been
\nfiled or proceeding instituted, or any action taken in contemplation of any such
\nfiling or institution, by an employee or group of employees of Seller or any of
\nits subsidiaries, seeking recognition of a bargaining representative.<\/p>\n
(g) There is no labor strike, dispute, slow down or
\nstoppage pending or, to Seller’s or its subsidiaries’ knowledge, threatened
\nagainst Seller or any of its subsidiaries by any of the Business Employees, and
\nneither Seller nor any of its subsidiaries has received any demand letters,
\ncivil rights charges, suits or drafts of suits with respect to claims made by
\nany of the Business Employees.<\/p>\n
(h) All individuals who are or were performing consulting
\nor other services for the Business are or were correctly classified by Seller or
\nany of its subsidiaries as either “independent contractors” or “employees,” as
\nthe case may be.<\/p>\n
(i) Seller and its subsidiaries are in compliance with
\nall applicable foreign, federal, state and local laws, rules and regulations
\nrespecting employment, employment practices, terms and conditions of employment
\nand wages and hours, in each case, with respect to the Business Employees.<\/p>\n
(j) Seller and its subsidiaries have withheld and
\nreported all amounts required by law or by agreement to be withheld and reported
\nwith respect to wages, salaries and other payments to the Business Employees.<\/p>\n
(k) There are no pending, or to Seller’s or any of its
\nsubsidiaries’ knowledge, threatened claims or actions by any Business Employee
\nagainst Seller or any of its subsidiaries under any worker’s compensation policy
\nor long-term disability policy.<\/p>\n
(l) To Seller’s and its subsidiaries’ knowledge, no
\nBusiness Employee is obligated under any agreement or subject to any judgment,
\ndecree or order of any court or administrative agency that would interfere with
\nsuch Business Employee’s efforts to promote the interests of the Business or
\nthat would interfere with the Business. To Seller’s and its subsidiaries’
\nknowledge, neither the execution nor delivery of this Agreement, nor the
\ncarrying on of the Business as presently conducted or proposed to be conducted
\nnor any activity of the Business Employees in connection with the carrying on of
\nthe Business as presently conducted or currently proposed to be conducted, will
\nconflict with or result in a breach of the terms, conditions or provisions of,
\nor constitute a default under, any agreement under which any of such Business
\nEmployees is now bound.<\/p>\n
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4.26 Environmental Matters.<\/p>\n
(a) Hazardous Material. Neither Seller nor any of its
\nsubsidiaries have: (i) operated any underground storage tanks on the Seller Real
\nProperty, or (ii) illegally released any Hazardous Material. No Hazardous
\nMaterials are present in, on or under any property, including the land and the
\nimprovements, ground water and surface water thereof on the Seller Real
\nProperty.<\/p>\n
(b) Hazardous Materials Activities. Neither Seller nor
\nany of its subsidiaries have transported, stored, used, manufactured, disposed
\nof, released or exposed the Business Employees or others to Hazardous Materials
\nin violation of any law in effect on or prior to the Closing, nor has Seller or
\nany of its subsidiaries disposed of, transported, sold, or manufactured any
\nproduct containing a Hazardous Material (any or all of the foregoing being
\ncollectively referred to herein as “Hazardous Materials Activities”) in
\nviolation of any rule, regulation, treaty or statute promulgated by any
\nGovernmental Entity in effect prior to or as of the date of this Agreement to
\nprohibit, regulate or control Hazardous Materials or any Hazardous Material
\nActivity.<\/p>\n
(c) Permits. Seller currently holds all environmental
\napprovals, permits, licenses, clearances and consents (the “Environmental
\nPermits”) necessary for the conduct of Seller’s and its subsidiaries’ Hazardous
\nMaterial Activities and other businesses of Seller and its subsidiaries as such
\nactivities and businesses are currently being conducted and as currently
\ncontemplated to be conducted.<\/p>\n
(d) Environmental Liabilities. No action, proceeding,
\nrevocation proceeding, amendment procedure, writ, injunction or claim is
\npending, or to the knowledge of Seller or any of its subsidiaries’ threatened,
\nconcerning any Environmental Permit, Hazardous Material or any Hazardous
\nMaterials Activity of Seller or any of its subsidiaries. Neither Seller nor any
\nof its subsidiaries has any knowledge of any fact or circumstance that could
\ninvolve Seller or any of its subsidiaries in any environmental litigation or
\nimpose upon Seller or any of its subsidiaries any environmental liability.<\/p>\n
4.27 Transactions with Affiliates.<\/p>\n
(a) Section 4.27(a) of the Disclosure Schedule identifies
\na true and complete list of all agreements, contracts, arrangements,
\nunderstandings, transfers of assets or liabilities or other commitments or
\ntransactions between Seller Group and any of its current or former officers or
\ndirectors, or stockholders holding more than five percent (5%) of Seller’s or
\nany of its subsidiaries’ outstanding capital stock are parties and that are
\ncurrently pending or in effect and relate to or affect the Business or any of
\nthe Acquired Assets or Assumed Liabilities.<\/p>\n
(b) No director or officer or former director or officer
\nof Seller or any of its subsidiaries (i) owns, directly or indirectly, on an
\nindividual or joint basis (i) any interest in any Acquired Asset or (ii) any
\ninterest (other than a passive investment in less than five percent (5%) of the
\noutstanding voting securities of a publicly traded company) in any Person that
\nis a supplier, customer or competitor of the Business, (ii) serves as an
\nofficer, director or employee of any person<\/p>\n
-31-<\/p>\n
that is a supplier, customer or competitor of the Business, or (iii) has
\nreceived any loan from or is otherwise a debtor of or has made any loan to or is
\notherwise a creditor of, Seller or any of its subsidiaries where such loan is
\nsecured by any of the Acquired Assets.<\/p>\n
4.28 Acquired Assets. The Acquired Assets, including the
\nTransferred Intellectual Property Rights and the Transferred Technology,
\ntogether constitute all of the assets or properties, including the Intellectual
\nProperty Rights and Technology, (i) used in the operation of the Business and
\n(ii) necessary to the operation of the Business by Buyer following the Closing.
\nThe Business Employees constitute all employees of the Seller Group who, as of
\nthe Closing Date, are or were at any time during the six month period prior to
\nthe date hereof, primarily dedicated to the Business.<\/p>\n
4.29 Complete Copies of Materials. Seller has delivered true and
\ncomplete copies of each existing document that has been requested by Buyer or
\nits counsel in connection with this Agreement or the transactions contemplated
\nhereby.<\/p>\n
4.30 Representations Complete. To the knowledge of Seller, none of
\nthe representations or warranties made by Seller on behalf of itself or any of
\nits subsidiaries (as modified by the Disclosure Schedule), nor any statement
\nmade in any Schedule (including the Disclosure Schedule), certificate or
\ninstrument furnished by Seller pursuant to this Agreement contains any untrue
\nstatement of a material fact, or omits to state any material fact necessary in
\norder to make the statements contained herein or therein, in light of the
\ncircumstances under which made, not misleading.<\/p>\n
ARTICLE 5<\/p>\n
REPRESENTATIONS AND WARRANTIES OF BUYER<\/p>\n
Buyer hereby represents and warrants to Seller as follows:<\/p>\n
5.1 Organization. Buyer is a corporation duly organized, validly
\nexisting and in good standing under the laws of and in the State of Delaware.
\nBuyer has all requisite corporate power to own and use the properties owned and
\nused by it and to carry on its business as currently conducted. Buyer is duly
\nqualified, licensed or admitted to do business and is in good standing as a
\nforeign corporation in each jurisdiction in which the conduct of its business,
\nmakes such qualification, licensing or admission necessary. Buyer has delivered
\na true, correct and complete copy of its certificate of incorporation and
\nbylaws, each as amended to date and in full force and effect on the date hereof,
\nto Seller.<\/p>\n
5.2 Authorization. Buyer has all requisite power and authority to
\nenter into this Agreement and each of the Ancillary Agreements to which either
\nof them is a party and to consummate the transactions contemplated hereby and
\nthereby. The execution and delivery of this Agreement and each of the Ancillary
\nAgreements to which Buyer is a party and the consummation<\/p>\n
-32-<\/p>\n
of the transactions contemplated hereby and thereby have been duly authorized by
\nall necessary corporate actions on the part of Buyer, and no further corporate
\naction is required on the part of Buyer or its stockholders to approve, adopt or
\nauthorize this Agreement, any of the Ancillary Agreements or any of the
\ntransactions contemplated hereby or thereby. This Agreement has been duly
\nexecuted and delivered by Buyer, and assuming the due authorization, execution
\nand delivery by Seller, constitutes the valid and binding obligation of Buyer,
\nenforceable against Buyer in accordance with its terms, subject to the laws of
\ngeneral application relating to bankruptcy, insolvency and the relief of debtors
\nand to rules of law governing specific performance, injunctive relief and other
\nequitable remedies.<\/p>\n
5.3 Noncontravention. The execution and delivery of this Agreement
\nand the Ancillary Agreements to which Buyer is a party does not, and the
\nconsummation of the transactions contemplated hereby and thereby will not (i)
\nconflict with any provision of Buyer’s certificate of incorporation or bylaws,
\n(ii) conflict with, or result in (with or without notice or lapse of time or
\nboth) any violation, or default under, or give rise to a Conflict under, any
\nmaterial contract to which Buyer or any of its properties or assets are subject,
\nor (iii) violate in any material respect any material judgment, order, decree,
\nstatute, law, ordinance, rule or regulation applicable to Buyer or its
\nproperties or assets.<\/p>\n
5.4 Consents. Except for the applicable requirements of foreign
\ngovernment authorities, if any, no consent, waiver, approval, order or
\nauthorization of, or registration, declaration or filing with, any Governmental
\nEntity, is required by, or with respect to, Buyer in connection with the
\nexecution and delivery of this Agreement or the Ancillary Agreements to which
\nBuyer is a party or the consummation of the transactions contemplated hereby or
\nthereby.<\/p>\n
ARTICLE 6<\/p>\n
COVENANTS AND AGREEMENTS<\/p>\n
6.1 Conduct of Seller Prior to the Closing. Between the date of
\nthis Agreement and the earlier to occur of the termination of this Agreement
\npursuant to Section 9.1 and the Closing, unless otherwise agreed in writing by
\nBuyer, Seller will and will cause the Seller Group to:<\/p>\n
(a) Except as otherwise specifically allowed or required
\npursuant to the terms of this Agreement, conduct the Business and operate the
\nAcquired Assets in the usual, regular and ordinary course in substantially the
\nsame manner as heretofore conducted or operated;<\/p>\n
(b) Pay the debts and Taxes of the Business when due;<\/p>\n
(c) Pay or perform other obligations of the Business when
\ndue;<\/p>\n
-33-<\/p>\n
(d) Use reasonable, good faith efforts to preserve intact
\nthe current business organization of Seller, devote substantive attention to the
\nBusiness, keep available the services of the current officers, employees and
\nagents of Seller relating to the Business, and maintain the relations and
\ngoodwill with the suppliers, customers, distributors, licensors, licensees,
\nlandlords, trade creditors, employees, agents, and others having business
\nrelationships with Seller relating to the Business, with the goal of preserving
\nunimpaired the goodwill and ongoing business of the Business through the Closing
\nand thereafter;<\/p>\n
(e) Confer with Buyer concerning material business or
\noperational matters relating to the Business;<\/p>\n
(f) Use reasonable, good faith efforts to maintain all of
\nthe Acquired Assets in their current condition, usual and immaterial wear and
\ntear excepted, and free of any Liens not existing on the date of this Agreement
\n(other than Liens disclosed in Section 4.14 of the Disclosure Schedule), and
\npromptly replace, repair or restore such Acquired Assets in the event of any
\ndamage to or destruction of any of the Acquired Assets prior to the Closing;<\/p>\n
(g) Grant non-exclusive licenses to the Products
\nconsistent with past practice;<\/p>\n
(h) Maintain the Books and Records in the usual, regular
\nand ordinary manner, on a basis consistent with prior years;<\/p>\n
(i) Report periodically to Buyer concerning the status
\nand operation of the Business and the Acquired Assets;<\/p>\n
(j) Not buy, or enter into any inbound license agreement
\nwith respect to, the Intellectual Property Rights of any third party to be
\nincorporated in or used in connection with the Products or the Business or sell,
\nlease or otherwise transfer or dispose of, or enter into any outbound license
\nagreement with respect to, any of the Acquired Assets with any third party
\n(except for licenses of the Products in the ordinary course of business
\nconsistent with past practices);<\/p>\n
(k) Not enter into any Contract relating to (i) the sale,
\nlicense or distribution of any Product or Transferred Technology (except for
\nlicenses of the Products in the ordinary course of business consistent with past
\npractices), (ii) the provision of any services relating to the Business, or
\n(iii) any of the Acquired Assets;<\/p>\n
(l) Not change pricing or royalties charged to customers
\nor licensees of Seller related to the Business;<\/p>\n
(m) Not enter into any strategic arrangement or
\nrelationship or joint marketing arrangement or agreement relating to the
\nBusiness;<\/p>\n
(n) Not terminate the employment of, or give notice of
\ntermination of employment to, any Business Employee;<\/p>\n
-34-<\/p>\n
(o) Not hire any Business Employee;<\/p>\n
(p) Not change, increase or amend the rate of
\nremuneration or amount of bonuses or other benefits or any other terms of
\nemployment of any Business Employee;<\/p>\n
(q) Not grant any severance or termination pay to any
\nBusiness Employee, or adopt any new severance plan, amend or modify or alter in
\nany manner any severance plan, agreement or arrangement relating to any Business
\nEmployee;<\/p>\n
(r) Not adopt or amend any Employee Plan applicable to
\nthe Business Employees;<\/p>\n
(s) Not amend or modify, or violate the terms of, any of
\nthe Consent Required Contracts or Transferred Contracts;<\/p>\n
(t) Not revalue any of the Acquired Assets;<\/p>\n
(u) Not make or change any election in respect of Taxes,
\nadopt or change any accounting method in respect of Taxes, enter into any
\nclosing agreement, settle any claim or assessment in respect of Taxes, or
\nconsent to any extension or waiver of the limitation period applicable to any
\nclaim or assessment in respect of Taxes, in each case relating to the Business,
\nthe Products or the Acquired Assets;<\/p>\n
(v) Not commence, settle, institute, prosecute,
\ncompromise any action, suit, proceeding, arbitration, or governmental or
\nregulatory investigation or audit or obtain the release of any threatened
\naction, suit, proceeding, arbitration, or governmental or regulatory
\ninvestigation or audit involving or relating to the Business or the Acquired
\nAssets;<\/p>\n
(w) Not take, or agree in writing or otherwise to take,
\nany of the actions described in (j) through (v) above.<\/p>\n
6.2 Notice of Certain Events. Buyer and Seller shall give prompt
\nnotice to the other of: (a) the occurrence or non-occurrence of any event, the
\noccurrence or non-occurrence of which is likely to cause any representation or
\nwarranty of such party contained in this Agreement to be untrue or inaccurate at
\nor prior to the Closing, and (b) any failure of such party to comply with or
\nsatisfy any covenant, condition or agreement to be complied with or satisfied by
\nit hereunder. Notwithstanding anything in the immediately preceding sentence to
\nthe contrary, the delivery of any notice pursuant to this Section 6.2 shall not
\n(i) limit or otherwise affect any remedies available to the party receiving such
\nnotice or (ii) constitute an acknowledgment or admission of a breach of this
\nAgreement. No disclosure by any party pursuant to this Section 6.2 shall be
\ndeemed to amend or supplement the Disclosure Schedule or prevent or cure any
\nmisrepresentation, breach of warranty or breach of covenant.<\/p>\n
-35-<\/p>\n
6.3 No Solicitation. Until the earlier of the Closing or the
\ntermination of this Agreement pursuant to the provisions of Section 9.1, Seller
\nwill not (nor will Seller permit any of its officers, directors, employees,
\nagents, representatives or affiliates to) directly or indirectly, take any of
\nthe following actions with any party other than Buyer or its designees:<\/p>\n
(a) Solicit, encourage, assist, conduct discussions with
\nor engage in negotiations with any Person, relating to the possible acquisition
\nof all or any part of the Business or the Acquired Assets, whether by way of
\nmerger, purchase of securities, purchase of assets or otherwise;<\/p>\n
(b) Provide information with respect to all or any part
\nof the Business or the Acquired Assets to any Person relating to the possible
\nacquisition of the Business or the Acquired Assets, whether by way of merger,
\npurchase of securities, purchase of assets or otherwise;<\/p>\n
(c) Enter into an agreement with any Person providing for
\nthe acquisition of all or any part of the Business or the Acquired Assets,
\nwhether by way of merger, purchase of securities, purchase of assets or
\notherwise; or<\/p>\n
(d) Make or authorize any statement, recommendation or
\nsolicitation in support of any possible acquisition of all or any part of the
\nBusiness or the Acquired Assets, whether by way of merger, purchase of
\nsecurities, purchase of assets or otherwise, by any Person.<\/p>\n
In addition to the foregoing (i) if Seller receives prior to
\nthe Closing or the termination of this Agreement in accordance with its terms
\nany offer, proposal, or request relating to any of (a) through (d) above, Seller
\nshall promptly notify Buyer in writing of the receipt of such proposal, and (ii)
\nSeller shall immediately cease and cause to be terminated (and Seller hereby
\nrepresents and warrants that it has the legal and contractual right, without
\nLiability, to cease and cause to be terminated) all existing discussions or
\nnegotiations with any Persons with respect to any offer, proposal, inquiry or
\nrequest relating to any of (a) through (d) above. Seller and Buyer agree that
\nirreparable damage would occur in the event that the provisions of this Section
\n6.3 were not performed in accordance with their specific terms or were otherwise
\nbreached. It is accordingly agreed by Seller and Buyer that Buyer shall be
\nentitled to seek an injunction or injunctions to prevent breaches of the
\nprovisions of this Section 6.3 and to seek specific performance of the terms and
\nprovisions hereof, this being in addition to any other remedy to which Buyer may
\nbe entitled at law or in equity. In the event, for any reason, specific
\nperformance is not available to prevent breaches of the provisions of this
\nSection 6.3, Seller acknowledges and agrees that the damages payable to Buyer
\nfor each instance of breach of this Section 6.3 shall in no event be less than
\n$5,000,000.<\/p>\n
6.4 Access to Information. Between the date of this Agreement and
\nthe earlier of the Closing or the termination of this Agreement, the Seller
\nGroup shall afford Buyer and its respective officers, employees, accountants,
\ncounsel, agents and other representatives, reasonable access during normal
\nbusiness hours upon reasonable prior notice to (i) all of the properties, books,
\ncontracts, commitments and records of the Business and the Acquired Assets, and
\n(ii) all Business Employees.<\/p>\n
-36-<\/p>\n
6.5 Confidential Information.<\/p>\n
(a) The Receiving Party shall treat as confidential all
\nof the Disclosing Party’s Confidential Information. Without limiting the
\nforegoing, the Receiving Party shall use at least the same degree of care which
\nit uses to prevent the disclosure or improper or illegal use of its own
\nconfidential information of like importance, but in no event with less than
\nreasonable care, to prevent the disclosure or improper or illegal use of the
\nDisclosing Party’s Confidential Information.<\/p>\n
(b) Either party shall be entitled to seek equitable
\nrelief to protect its interest in any of its Confidential Information, including
\ninjunctive relief.<\/p>\n
(c) In the event either party is required to disclose the
\nother party’s Confidential Information pursuant to applicable law or regulation,
\nor the order or requirement of a Governmental Entity, the party required to
\ndisclose such information shall provide prompt notice thereof to the other party
\nto allow such party the opportunity to obtain a protective order or similar
\nprotection prior to such disclosure.<\/p>\n
(d) Notwithstanding anything to the contrary contained
\nherein or in any other agreement of Seller, including any agreement between
\nSeller and any employee of Seller, Buyer shall have the unrestricted,
\nsublicensable and transferable right, and Seller hereby consents to such rights
\nof Buyer, to use, disclose and exploit in any manner and without restriction any
\nand all confidential information (including Confidential Information) of Seller
\ndisclosed to or learned by Buyer in connection with the Business, disclosed by
\nor embodied in any of the Acquired Assets, or known to any Offered Employee or
\nContinuing Employee. Without limiting the foregoing, any Confidential
\nInformation of Seller delivered with or related to the Acquired Assets will
\nbecome Confidential Information of Buyer after the Closing, subject to the
\nprovisions of the Intellectual Property License Agreement. To the extent any
\nOffered Employee or Continuing Employee may be bound by any agreement or policy
\nof Seller that would in any way limit or restrict the rights of Buyer hereunder,
\nSeller shall not assert, enforce or otherwise exercise its rights against any
\nOffering Employee or Continuing Employee, or Buyer, and Seller hereby expressly
\nwaives its rights, under such agreement or policy.<\/p>\n
6.6 Public Disclosure. No party shall issue any statement or
\ncommunication to any third party (other than to their respective agents)
\nregarding the subject matter of this Agreement or the transactions contemplated
\nhereby, including, if applicable, the termination of this Agreement and the
\nreasons therefor, without the prior written consent of the other party, which
\nconsent shall not be unreasonably withheld, except that this restriction shall
\nbe subject to the parties’ respective obligations to comply with applicable
\nsecurities laws and applicable rules and regulations of the National
\nAssociation of Securities Dealers, Inc. or the Norwegian Securities Trading Act.<\/p>\n
6.7 Consents.<\/p>\n
(a) Seller shall assign and shall cause the Seller Group
\nto assign the Transferred Contracts to Buyer and\/or, as determined by Buyer, one
\nor more Buyer Subsidiaries, as of the<\/p>\n
-37-<\/p>\n
Closing. Seller shall use reasonable efforts, during the period from the date of
\nthis Agreement until the Closing, to obtain the consents, waivers, approvals and
\nassignments under the Consent Required Contracts as may be required in
\nconnection with the Acquisition so as to assign all rights of and benefits of
\nSeller, to Buyer and\/or, as determined by Buyer, one or more Buyer Subsidiaries,
\nand upon the receipt of such consent, waiver, approval or assignment, as
\napplicable, such Consent Required Contract shall be moved to Schedule 1.1(jjjj)
\nfrom Schedule 1.1(v). Following the Closing, Seller shall continue to use
\nreasonable efforts for a period of six (6) months to obtain the consents,
\nwaivers, approvals and assignments to those Contracts identified as Consent
\nRequired Contracts on Schedule 1.1(v) that were not moved to Schedule 1.1(jjjj)
\nprior to the Closing and to the extent that Seller is able to obtain any such
\nconsents, waivers, approvals or assignments, such Consent Required Contracts
\nshall be deemed to be Transferred Contracts for all purposes under this
\nAgreement from the time such consent, waiver, approval or assignment was
\ndelivered to Buyer, notwithstanding anything else in this Agreement to the
\ncontrary.<\/p>\n
(b) If Seller is unable to obtain the consents, waivers,
\napprovals and assignments of any Consent Required Contract within the time
\nperiod described in Section 6.7(a), (i) upon obtaining such consent or approval,
\nBuyer and Seller shall execute such further instruments of conveyance (in
\nsubstantially the form executed at the Closing) as may be necessary to assign
\nand transfer such Consent Required Contracts (and the associated then-future
\nliabilities and obligations of the Seller Group) to Buyer and\/or, as determined
\nby Buyer, one or more Buyer Subsidiaries, (ii) from and after the Closing until
\nthe assignment of each such Consent Required Contract pursuant to clause
\n6.7(b)(i), and to the extent permitted pursuant to the terms of such Consent
\nRequired Contract, the Seller Group shall hold such contract rights, assets or
\nother rights for the benefit of Buyer and\/or, as determined by Buyer, one or
\nmore Buyer Subsidiaries, and shall provide Buyer and\/or, as determined by Buyer,
\none or more Buyer Subsidiaries, with all of the benefits thereof, and shall take
\ncommercially reasonable action, at the direction of Buyer, and at Buyer’s own
\nexpense, in order that such contract rights of Buyer and\/or, as determined by
\nBuyer, one or more Buyer Subsidiaries, are preserved, (iii) Buyer and\/or, as
\ndetermined by Buyer, one or more Buyer Subsidiaries, shall fully perform,
\nfulfill and discharge, on a subcontract basis, the obligations of the Seller
\nGroup to be performed under such Consent Required Contract; (iv) the Seller
\nGroup shall promptly remit to Buyer and\/or, as determined by Buyer, one or more
\nBuyer Subsidiaries, all payments received by the Seller Group under such Consent
\nRequired Contracts for services performed during such period; and (v) Buyer
\nand\/or, as determined by Buyer, one or more Buyer Subsidiaries, shall reimburse
\nthe Seller Group for the costs of any goods or services procured by the Seller
\nGroup on behalf of Buyer and\/or, as determined by Buyer, one or more Buyer
\nSubsidiaries, under Buyer’s direction.<\/p>\n
6.8 Reasonable Efforts. Subject to the terms and conditions
\nprovided in this Agreement, the parties shall use commercially reasonable
\nefforts to promptly take, or cause to be taken, all actions, and to do promptly,
\nor cause to be done, all things necessary, proper or advisable under applicable
\nlaws and regulations to consummate and effectuate the transactions contemplated
\nhereby, to obtain all necessary waivers, consents and approvals and to effect
\nall necessary registrations and filings and to remove any injunctions or other
\nimpediments or delays, legal or otherwise, in order to<\/p>\n
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consummate and effectuate the transactions contemplated by this Agreement for
\nthe purpose of securing to the parties hereto the benefits contemplated by this
\nAgreement. If required, as soon as may be reasonably practicable, each of Seller
\nand Buyer shall file pre-transaction notification forms required by the
\ntransactional notification or control laws and regulations of any applicable
\njurisdiction, as agreed to by the parties. Seller and Buyer shall promptly (a)
\nsupply the other with any information which may be required in order to
\neffectuate such filings and (b) supply any additional information which may
\nreasonably be required by the competition or transactional control authorities
\nof any other jurisdiction and which the Parties may reasonably deem appropriate.
\nNotwithstanding anything in this Section 6.8 to the contrary, nothing herein
\nshall require any party or any of its subsidiaries or affiliates to agree to any
\ndivestiture of any of its respective businesses, assets or properties, or
\notherwise agree to the imposition of any limitation on the ability of any of
\nthem to conduct their respective businesses or to own or exercise control of
\nsuch businesses, assets or properties.<\/p>\n
6.9 Employee Matters. Each Offered Employee shall be given an
\nOffer Letter by Buyer and\/or, as determined by Buyer, one or more Buyer
\nSubsidiaries, to be effective as of the Closing Date, upon proof evidencing a
\nlegal right to work in his or her country of current employment. Such Offer
\nLetters will (a) be subject to and in compliance with Buyer’s standard human
\nresources policies and procedures, (b) have terms, including the position,
\nsalary and responsibilities of such employee, which will be determined by Buyer
\nafter consultation with Seller’s management and which, to the extent required by
\napplicable law, will not be less favorable to the Offered Employees, in all
\nrespects, including, but not limited to, payment of salary, benefits, and
\nconditions of employment, than under their existing employment agreements with
\nthe Seller Group, and (c) supersede any prior employment agreements and other
\narrangements with such Offered Employee in effect prior to the Closing Date.
\nContinuing Employees shall be eligible to receive benefits consistent with
\nBuyer’s standard human resources policies. In furtherance of the foregoing, the
\nSeller Group shall terminate all employment agreements and other arrangements
\nwith the Offered Employees effective as of the Closing Date in conformity with
\napplicable law, or for employees in Norway, the United Kingdom and Germany,
\nassign an transfer the employment agreements to Buyer. The Seller Group hereby
\nassigns to Buyer, and Buyer hereby assumes, all of the Seller Group’s
\ncontractual and statutory rights to acquire patentable and non-patentable
\ninventions related to the Business from Offered Employees after the termination
\nor expiry of their employment or consultancy agreements with the Seller Group.<\/p>\n
6.10 Covenant Not to Solicit.<\/p>\n
(a) Beginning on the Closing Date and ending on the date
\nthat is twenty four months following the Closing Date, Seller shall not directly
\nor indirectly solicit, encourage or take any other action which is intended to
\ninduce or encourage, or has the effect of inducing or encouraging, any
\nContinuing Employee to terminate his or her employment with Buyer, or hire any
\nContinuing Employee, provided however, Seller shall not be in breach of this
\nprovision if any employee of Buyer (or any subsidiary thereof): (i) is
\ninvoluntarily terminated as an employee of Buyer (or any subsidiary thereof) or
\n(ii) voluntarily and independently approaches and obtains<\/p>\n
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employment with Seller after a date which is at least six (6) months following
\nthe date that such employee is no longer employed by Buyer.<\/p>\n
(b) Beginning on the Closing Date and ending on the date
\nthat is twenty four months following the Closing Date, Buyer shall not directly
\nor indirectly solicit, encourage or take any other action which is intended to
\ninduce or encourage, or has the effect of inducing of encouraging, any employee
\nof Seller (other than the Offered Employees) to terminate his or her employment
\nwith Seller, or hire any employee of Seller (other than the Offered Employees),
\nprovided however, Buyer shall not be in breach of this provision if any employee
\nof Seller (or any subsidiary thereof): (i) is involuntarily terminated as an
\nemployee of Seller (or any subsidiary thereof) or (ii) voluntarily and
\nindependently approaches and obtains employment with Buyer after a date which is
\nat least six (6) months following the date that such employee is no longer
\nemployed by Seller (or any subsidiary thereof).<\/p>\n
6.11 Transition Planning; Transition. During the period between the
\ndate of this Agreement and the Closing, Seller and Buyer shall cooperate with
\none another in creating joint plans for the transition of the Business and the
\nAcquired Assets from Seller to Buyer at and after the Closing. Seller shall not
\ntake any action that is intended to have the effect of discouraging any lessor,
\nlicensor, customer, supplier, or other business associate of the Business from
\nmaintaining the same business relationship with Buyer after the Closing as it
\nmaintained with Seller prior to the Closing. For a period of six (6) months
\nfollowing the Closing, Seller shall use its reasonable efforts to refer all
\ninquiries relating to the Business to Buyer.<\/p>\n
6.12 Additional Financial Statements. Prior to the Closing, Seller
\nshall provide to Buyer such financial statements of the Business (the “Closing
\nFinancial Statements”) prepared in accordance with U.S. GAAP, including the
\nnotes thereto, as Buyer may reasonably request so that Buyer may comply,
\nfollowing the Closing, with its periodic reporting obligations under Sections
\n13(a) and 15(d) of the Exchange Act and the rules and regulations promulgated
\nthereunder, including any requirement to file financial statements with respect
\nto the transactions contemplated hereby pursuant to Item 7 of Form 8-K.<\/p>\n
6.13 Insurance Claims. Following the Closing, Seller will take
\ncommercially reasonable actions to pursue claims under its insurance policies at
\nthe request and expense of Buyer with respect to matters relating to the
\nownership, use or operation of the Acquired Assets or the Business prior to the
\nClosing and will remit any amounts recovered to Buyer with respect to such
\nclaims.<\/p>\n
6.14 Mail Handling. Effective as of the Closing Date, Buyer shall
\nhave the right to open all mail and packages addressed to Seller and delivered
\nto Buyer relating to the Business or the Acquired Assets. To the extent Buyer
\nreceives any mail or packages addressed to Seller and delivered to Buyer not
\nrelating to the Business or the Acquired Assets, Buyer shall promptly deliver
\nsuch mail or packages to Seller. After the Closing Date, to the extent Seller
\nreceives any mail or packages addressed and delivered to Seller but relating to
\nthe Business or the Acquired Assets, Seller agrees that it will promptly
\ntransfer or deliver or cause to be promptly transferred or delivered to Buyer.<\/p>\n
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6.15 Additional Documents, Further Assurances and Cooperation;
\nPower of Attorney.<\/p>\n
(a) Each party, at the request of the other party, shall
\nexecute and deliver such other instruments and do and perform such other acts
\nand things as may be reasonably necessary to effect the consummation of this
\nAgreement and the transactions contemplated hereby. After the Closing, if the
\nparties agree that any asset, Technology, Intellectual Property Right, Contract
\nor other document or item should be additionally transferred to Buyer, then the
\nparties shall cooperate to take actions to negotiate in good faith an
\nappropriate transfer or license to fulfill the intent of this Agreement. After
\nthe Closing, each party will use its reasonable efforts to cooperate to execute
\nsuch applications, specifications, oaths, assignments and other instruments, and
\ntake such other reasonable actions, which are necessary to apply for or perfect
\nthe other party’s interest (i) in the case of Seller, in Seller’s retained
\nIntellectual Property Rights and (ii) in the case of Buyer, in the Intellectual
\nProperty Rights included in the Transferred IP and Transferred Technology.<\/p>\n
(b) Effective at the Closing, Seller hereby constitutes
\nand appoints Buyer the true and lawful attorney of Seller, with full power of
\nsubstitution, in the name of Seller or Buyer, but on behalf of and for the
\nbenefit of Buyer and at Buyer’s cost and expense: (i) to demand and receive from
\ntime to time any and all of the Self-Executing Transferable Assets and to make
\nendorsements and give receipts and releases for and in respect of the same and
\nany part thereof; (ii) to institute, prosecute and settle any and all actions or
\nproceedings that Buyer may deem proper in order to collect, assert or enforce
\nany claim, right or title of any kind in or to the Self-Executing Transferable
\nAssets; (iii) to defend or settle any or all actions proceedings in respect of
\nany of the Self-Executing Transferable Assets (other than actions or proceedings
\nwhich Seller acknowledges and agrees in a written instrument signed by Seller
\nand delivered to Buyer constitute Excluded Liabilities); and (iv) to do all such
\nacts and things in relation to the matters set forth in the preceding clauses
\n(i) through (iii) as Buyer shall deem necessary or desirable. Seller hereby
\nacknowledges that the appointment hereby made and the powers hereby granted are
\ncoupled with an interest and are not and shall not be revocable by it in any
\nmanner or for any reason. Seller shall deliver to Buyer at the Closing an
\nacknowledged power of attorney to the foregoing effect executed by Seller.<\/p>\n
6.16 Transfer Taxes. Buyer and Seller shall each pay 50% of the
\nTransfer Taxes imposed or levied by reason of, in connection with or
\nattributable to, this Agreement or the transactions contemplated hereby. Buyer
\nwill remit its share of the Transfer Taxes to Seller upon the later to occur of
\nthe Closing or the mutual determination of the amount of Transfer Taxes due and
\npayable in connection with or attributable to, this Agreement or the
\ntransactions contemplated hereby. The parties shall cooperate with each other to
\nthe extent reasonably requested and legally permitted to minimize any such
\nTransfer Taxes.<\/p>\n
6.17 Transfer of Technology. At the Closing, Seller shall have
\ndelivered to Buyer all copies, and neither Seller nor any of its subsidiaries
\nshall have retained any copy, of any source code to any Software that is
\nTransferred Technology, except as permitted under the Intellectual Property
\nLicense Agreement.<\/p>\n
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6.18 Allocation of Purchase Price. Seller shall agree to an
\nallocation of the Purchase Price and the Assumed Liabilities among the Acquired
\nAssets in accordance with Section 1060 of the Code and the regulations
\npromulgated thereunder (and any similar provision of state, local or foreign
\nlaw, as applicable) pursuant to an independent third party retained by Buyer to
\nin good faith prepare and deliver such allocation to Seller reasonably promptly
\nafter the Closing. Each of Buyer and Seller shall: (a) timely file all forms
\n(including Internal Revenue Service Form 8594) and Returns required to be filed
\nin connection with such allocation; (b) be bound by such allocation for purposes
\nof determining Taxes; (c) prepare and file, and cause its respective
\nsubsidiaries to prepare and file, its Returns on a basis consistent with such
\nallocation; and (d) take no position, and cause its affiliates to take no
\nposition, inconsistent with such allocation on any applicable Return, in any
\naudit or proceeding before any Tax authority, in any report made for Tax
\npurposes. In the event that such allocation is disputed by a Tax authority, the
\nparty receiving notice of such dispute shall promptly notify the other party
\nhereto concerning the existence and resolution of such dispute.<\/p>\n
6.19 Obligations of Buyer Subsidiaries and Seller Subsidiaries.
\nBuyer shall cause each Buyer Subsidiary to perform the obligations of such Buyer
\nSubsidiary under this Agreement, and Seller shall cause each Seller Subsidiary
\nto perform the obligations of such Seller Subsidiary under this Agreement.<\/p>\n
6.20 Amendment or Termination of Certain Contracts. Prior to the
\nClosing Date, Buyer and Seller will amend, or, if not reasonably practicable to
\namend, terminate, in a manner acceptable to Buyer, those certain contracts
\nlisted on Schedule 6.20.<\/p>\n
6.21 Joint Development Agreement. Buyer and Seller shall negotiate
\nin good faith in an effort to agree upon the terms of, execute and deliver the
\nJoint Development Agreement prior to the Closing Date.<\/p>\n
6.22 Financial Statements. Seller shall deliver to Buyer as
\npromptly as practicable and in any event prior to the Closing Date the audited
\nbalance sheet as of December 31, 2002 and the audited statements of income, cash
\nflows, and changes in shareholder’s equity for the year ended December 31, 2002
\nfor the Business as well as an unaudited balance sheet as of January 31, 2003
\nand unaudited statement of income and cash flow for the month ended January 31,
\n2003 for the Business.<\/p>\n
ARTICLE 7<\/p>\n
CONDITIONS TO THE CLOSING<\/p>\n
7.1 Conditions to Each Party’s Obligation. The respective
\nobligations of Buyer and Seller to effect the Acquisition shall be subject to
\nthe satisfaction at or prior to the Closing of the following conditions:<\/p>\n
-42-<\/p>\n
(a) No Injunctions or Restraints. No temporary
\nrestraining order, preliminary or permanent injunction or other order issued by
\nany court of competent jurisdiction or other legal restraint or prohibition
\npreventing the consummation of the Acquisition shall be in effect, nor shall any
\nproceeding brought by an administrative agency or commission or other
\nGovernmental Entity seeking any of the foregoing be pending.<\/p>\n
(b) No Order. No Governmental Entity shall have enacted,
\nissued, promulgated, enforced or enacted any statute, rule, regulation,
\nexecutive order, decree, injunction or other order (whether temporary,
\npreliminary or permanent) which is in effect and which has the effect of making
\nthe Acquisition or the other transactions contemplated by this Agreement or any
\nof the Ancillary Agreements illegal or otherwise prohibit the consummation of
\nany of the foregoing.<\/p>\n
(c) Termination of Waiting Periods; Governmental
\nApprovals. All waiting periods imposed by Governmental Entities relating to the
\ntransactions contemplated hereby shall have expired or been terminated. All
\nother approvals from Governmental Entities, if any, required to consummate the
\ntransactions contemplated hereby shall have been obtained.<\/p>\n
7.2 Condition to Buyer’s Obligation. The obligation of Buyer to
\neffect the transactions contemplated hereby shall be subject to the satisfaction
\nat or prior to the Closing of each of the following conditions, any of which may
\nbe waived, in writing, exclusively by Buyer:<\/p>\n
(a) Representations and Warranties. The representations
\nand warranties of Seller in this Agreement shall have been true and correct on
\nthe date of this Agreement and shall have been true and correct in all material
\nrespects on and as of the Closing (other than those representations and
\nwarranties which were qualified by terms such as “material,” “materially,” or
\n“Material Adverse Effect,” which representations and warranties so qualified
\nshall have been true and correct in all respects on and as of the Closing).<\/p>\n
(b) Covenants. Seller shall have performed and complied
\nin all material respects with all covenants and obligations under this Agreement
\nrequired to be performed and complied with by Seller as of or prior to the
\nClosing.<\/p>\n
(c) Litigation. There shall be no material action, suit,
\nproceeding, arbitration, or governmental or regulatory investigation or audit of
\nany nature pending or threatened against (i) Seller, its properties or any of
\nits officers or directors arising out of, or in any way connected with, the
\ntransactions contemplated hereby, or (ii) the Business, the Products, the
\nAcquired Assets or the Offered Employees.<\/p>\n
(d) Third Party Consents. Buyer shall have received all
\nconsents, waivers, approvals, and assignments identified on Schedule 7.2(d)(i)
\nand shall have obtained all necessary licenses to the Software identified on
\nSchedule 7.2(e)(ii) on terms reasonably acceptable to Buyer.<\/p>\n
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(e) Seller shall have amended or terminated in a manner
\nacceptable to Buyer, those contracts listed on Schedule 6.20, and shall have
\ndelivered to Buyer evidence of such amendment or termination.<\/p>\n
(f) Release of Liens. Buyer shall have received from
\nSeller a duly and validly executed copy of all agreements, instruments,
\ncertificates and other documents, in form and substance reasonably satisfactory
\nto Buyer, that are necessary or appropriate to evidence the release of all Liens
\non the Acquired Assets identified on Schedule 7.2(f)<\/p>\n
(g) No Material Adverse Effect. There shall not have
\noccurred any event or condition of any character that has had or is reasonably
\nlikely to have a Material Adverse Effect.<\/p>\n
(h) New Employment Arrangements. Each of the Key
\nEmployees and 90% of the other Offered Employees shall have entered into
\n“at-will” employment arrangements with Buyer pursuant to their execution of an
\nOffer Letter agreeing to be employees of Buyer after the Closing, and shall be
\nemployees of Seller immediately prior to the Closing.<\/p>\n
(i) Deliveries. Seller shall have delivered to Buyer
\nexecuted copies of the Ancillary Agreements to which it is a party, and such
\nAncillary Agreements shall be in full force and effect.<\/p>\n
(j) Closing Financial Statements. Buyer shall have
\nreceived the Closing Financial Statements together with a report in standard
\nform from Seller’s independent public auditing firm.<\/p>\n
(k) Audited Financial Statements. Buyer shall have
\nreceived the audited financial statements described in Section 6.22 and such
\naudited financial statements shall not differ in any material respect from the
\nBusiness Financial Statements. Buyer shall also have received the unaudited
\nfinancial statements described in Section 6.22.<\/p>\n
(l) Certificate of Seller. Buyer shall have received a
\ncertificate, validly executed by an executive officer of Seller for and on its
\nbehalf, to the effect that:<\/p>\n
(i) All representations and warranties made by
\nSeller in this Agreement were true and correct on the date of this Agreement and
\nare true and correct in all material respects on and as of the Closing (other
\nthan those representations and warranties which were qualified by terms such as
\n“material,” “materially,” or “Material Adverse Effect,” which representations
\nand warranties so qualified are true and correct in all respects on and as of
\nthe Closing).<\/p>\n
(ii) All covenants and obligations under this
\nAgreement to be performed or complied with by Seller on or prior to the Closing
\nhave been so performed or complied with in all material respects; and<\/p>\n
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(iii) The conditions to the obligations of Buyer
\nset forth in this Section 7.2 have been satisfied (unless otherwise waived in
\naccordance with the terms of this Agreement).<\/p>\n
(m) Opinion of Legal Counsel of Seller. Buyer shall have
\nreceived an opinion validly executed by the outside legal counsel of Seller, and
\nacceptable in form and substance by Buyer, certifying as to (i) the terms and
\neffectiveness of the Articles of Association of Seller, (ii) the valid adoption
\nand continued effectiveness of resolutions of the Board of Directors of Seller
\napproving and authorizing this Agreement and the consummation of the
\ntransactions contemplated hereby; (iii) the incumbency of the officers executing
\nthis Agreement or any of the Ancillary Agreements to which Seller is a party;
\n(iv) the completion of all corporate action by the Board of Directors of Seller
\nand shareholders of Seller necessary for the authorization, execution and
\ndelivery of this Agreement and the consummation of the transactions contemplated
\nhereby; and (v) the valid execution and delivery of the Agreement and the
\nAncillary Agreements, creating binding and enforceable obligations of the
\nSeller.<\/p>\n
(n) Joint Development Agreement. Buyer and Seller shall
\nhave executed and delivered the Joint Development Agreement on terms acceptable
\nto Buyer.<\/p>\n
7.3 Condition to Seller’s Obligation. The obligation of Seller to
\neffect the transactions contemplated hereby shall be subject to the satisfaction
\nat or prior to the Closing of each of the following conditions, any of which may
\nbe waived, in writing, exclusively by Seller:<\/p>\n
(a) Representations and Warranties. The representations
\nand warranties of Buyer in this Agreement shall have been true and correct on
\nthe date of this Agreement and shall have been true and correct in all material
\nrespects on and as of the Closing (other than those representations and
\nwarranties which were qualified by terms such as “material,” “materially,” or
\n“Material Adverse Effect,” which representations and warranties so qualified
\nshall have been true and correct in all respects on and as of the Closing).<\/p>\n
(b) Covenants. Buyer shall have performed and complied in
\nall material respects with all covenants and obligations under this Agreement
\nrequired to be performed and complied with by Buyer as of or prior to the
\nClosing.<\/p>\n
(c) Deliveries. Buyer shall have delivered to Seller
\nexecuted copies of the Ancillary Agreements to which it is a party, and such
\nAncillary Agreements shall be in full force and effect.<\/p>\n
(d) Certificate of Buyer. Seller shall have received a
\ncertificate, validly executed by an executive officer of Buyer for and on its
\nbehalf, to the effect that:<\/p>\n
(i) All representations and warranties made by
\nBuyer in this Agreement were true and correct on the date of this Agreement and
\nare true and correct in all material respects on and as of the Closing (other
\nthan those representations and warranties which were qualified by<\/p>\n
-45-<\/p>\n
terms such as “material,” “materially,” or “Material Adverse Effect,” which
\nrepresentations and warranties so qualified are true and correct in all respects
\non and as of the Closing).<\/p>\n
(ii) All covenants and obligations under this
\nAgreement to be performed or complied with by Buyer on or prior to the Closing
\nhave been so performed or complied with in all material respects; and<\/p>\n
(iii) The conditions to the obligations of Seller
\nset forth in this Section 7.3 have been satisfied (unless otherwise waived in
\naccordance with the terms of this Agreement).<\/p>\n
(e) Certificate of Secretary of Buyer. Seller shall have
\nreceived a certificate, validly executed by the Secretary or an Assistant
\nSecretary of Buyer, certifying as to (i) the terms and effectiveness of the
\ncertificate of incorporation and the bylaws of Buyer, (ii) the valid adoption of
\nresolutions of the Board of Directors of Buyer approving this Agreement and the
\nconsummation of the transactions contemplated hereby and (iii) the incumbency of
\nthe officers executing this Agreement or any of the Ancillary Agreements to
\nwhich Buyer is a party.<\/p>\n
ARTICLE 8<\/p>\n
SURVIVAL AND INDEMNIFICATION<\/p>\n
8.1 Survival. The representations and warranties of Seller
\ncontained in this Agreement, or in any certificate or other instrument delivered
\npursuant to this Agreement, shall terminate on the anniversary of the Closing
\nDate (the “Escrow Termination Date”); provided, however that the representations
\nand warranties of Seller contained in Section 4.2 shall survive indefinitely,
\nthe representations and warranties contained in Section 4.22 shall survive until
\nthe expiration of the applicable statute of limitations and the representations
\nand warranties contained in Section 4.16 shall survive for a period of two (2)
\nyears following the Closing. The representations and warranties of Buyer
\ncontained in this Agreement, or in any certificate or other instrument delivered
\npursuant to this Agreement, shall terminate at the Closing.<\/p>\n
8.2 Indemnification. Seller agrees to indemnify and hold the
\nIndemnified Parties harmless against all Losses incurred, accrued or sustained
\nby the Indemnified Parties, or any of them, directly or indirectly, as a result
\nof (a) any breach of a representation or warranty of Seller contained in this
\nAgreement or in any certificate, instrument, or other document delivered
\npursuant to this Agreement, (b) any failure by Seller to perform or comply with
\nany covenant applicable to it contained in this Agreement, (c) any Excluded
\nLiabilities other than Offset Liabilities (as defined below), (d) Seller’s
\nfailure to deliver to Buyer any of the Acquired Assets, or (e) the Data Center
\nTermination Costs. For the purpose of determining the amount of any Loss for
\nwhich any of the Indemnified Parties may be entitled to indemnification by
\nSeller pursuant to this ARTICLE 8, any representation or warranty of Seller
\ncontained in this Agreement or in any certificate, instrument, or other document
\ndelivered pursuant to this Agreement that is qualified by a term or terms such
\nas<\/p>\n
-46-<\/p>\n
“material,” “materially,” or “Material Adverse Effect,” shall be deemed made or
\ngiven without such qualification. “Offset Liabilities” shall mean the amount of
\nany Latent Liability which (i) does not relate to any breach or inaccuracy in
\nSeller’s representations and warranties contained in this Agreement or in any
\ncertificate, instrument or other document delivered pursuant to this Agreement
\nor any failure by Seller to perform or comply with any covenant applicable to it
\ncontained in this Agreement and (ii) is offset by amounts actually paid to Buyer
\npursuant to a settlement or judgment as a result of a counter-claim asserted by
\nBuyer against the third party whose claim constitutes the Latent Liability,
\nwhich counter-claim arises out of the same facts and circumstances which gives
\nrise to the Latent Liability.<\/p>\n
8.3 Limitations on Indemnification. Notwithstanding anything in
\nSection 8.2 to the contrary, no Indemnified Party shall be entitled to be
\nindemnified for any Loss incurred, accrued or sustained by such Indemnified
\nParty as a result of any breach or inaccuracy of a representation or warranty of
\nSeller contained in this Agreement or in any certificate, instrument, or other
\ndocument delivered pursuant to this Agreement until the Indemnified Parties, or
\nany of them, have delivered to Seller and the Escrow Agent one or more Claim
\nCertificates identifying Losses incurred, accrued or sustained in excess of the
\nBasket Amount, in which case the Indemnified Parties, or any of them, shall be
\nentitled to recover all Losses so identified above the Basket Amount.
\nNotwithstanding the immediately preceding sentence, Buyer shall be entitled to
\nrecover for, and the Basket Amount shall not apply as a threshold to, any Loss
\nincurred, accrued or sustained by an Indemnified Party arising or resulting from
\nfraud or fraudulent misrepresentation with respect to representations and
\nwarranties of Seller contained in this Agreement or in any certificate,
\ninstrument, or other document delivered pursuant to this Agreement. Following
\nthe Closing, the maximum liability of Seller under this Agreement as a result of
\nany breach or inaccuracy of a representation or warranty of Seller contained in
\nthis Agreement or a breach or inaccuracy of a representation or warranty in any
\ncertificate, instrument, or other document delivered pursuant to this Agreement,
\nexcept in the case of intentional, knowing or willful breach of this Agreement,
\nfraud, or similar circumstances, shall not exceed $12,750,000.<\/p>\n
8.4 Escrow Arrangements.<\/p>\n
(a) Escrow Fund. Seller will be deemed to have received
\nat the Closing and Buyer will deposit the Escrow Amount into an escrow fund (the
\n“Escrow Fund”) to be governed by the terms set forth herein. The Escrow Fund
\nshall be available to compensate the Indemnified Parties, or any of them, for
\nany claims by such Indemnified Parties for any Loss or Losses suffered or
\nincurred by them. Except as set forth in the last sentence of Section 8.3,
\nnothing herein shall prohibit any Indemnified Party from seeking recovery
\npursuant to Section 8.2 directly from Seller or its successors for any Losses
\nexceeding the amounts contained in the Escrow Fund. The Escrow Agent may execute
\nthis Agreement following the date of this Agreement and prior to the Closing,
\nand such later execution, if so executed after the date of this Agreement, shall
\nnot affect the binding nature of this Agreement as of the date of this Agreement
\nbetween the other signatories hereto. Nothing herein shall limit the liability
\nof Seller for any breach or inaccuracy of any representation, warranty or
\ncovenant contained in this Agreement if the Acquisition does not close.<\/p>\n
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(b) Escrow Period; Distribution upon Termination of
\nEscrow Periods. Subject to the following requirements, the Escrow Fund shall be
\nin existence immediately following the Closing and shall terminate at 5:00 p.m.,
\nPacific Time, on the day 30 days following the Escrow Termination Date (the
\n“Escrow Period”); provided, however, that the Escrow Period shall not terminate
\nwith respect to any amount which, in the reasonable judgment of Buyer, is
\nnecessary to satisfy any unsatisfied claims specified in any Claim Certificate
\ndelivered to the Escrow Agent prior to the termination of the Escrow Period (the
\n“Unsatisfied Claim Amount”). The Escrow Agent shall deliver, promptly following
\nthe Escrow Termination Date, to Seller all cash remaining in the Escrow Fund at
\nthe Escrow Termination Date less the Unsatisfied Claim Amount (the “Remaining
\nPortion”). Any Unsatisfied Claim Amount which Buyer has accrued but which Buyer
\nhas not sustained or incurred and which Buyer elects to no longer accrue during
\nthe one year period following the end of the Escrow Period shall be promptly
\ndelivered to Seller by the Escrow Agent upon appropriate instructions from
\nBuyer. In addition, one year following the end of the Escrow Period, the Escrow
\nAgent shall deliver to Seller an amount in cash equal to any Unsatisfied Claim
\nAmounts still remaining in the Escrow Fund less any amounts which, in the
\nreasonable judgment of Buyer, are necessary to satisfy any unsatisfied Losses
\nwhich Buyer has sustained, incurred or accrued.<\/p>\n
(c) Protection of the Escrow Fund.<\/p>\n
(i) The Escrow Agent shall hold and safeguard the
\nEscrow Fund, shall treat such fund as a trust fund in accordance with the terms
\nof this Agreement and not as the property of Buyer and shall hold and dispose of
\nthe Escrow Fund only in accordance with the terms of this ARTICLE 8.<\/p>\n
(ii) The Escrow Agent shall invest and reinvest
\nthe Escrow Amount in a liquid U.S. Bank money market account (the
\n“Obligations”). All income earned on the Obligations shall be added to and
\ndeemed a part of the Escrow Fund. For tax reporting and withholding purposes,
\nall income earned on the Obligations shall be treated, and shall be reported by
\nthe Escrow Agent, as income of Seller.<\/p>\n
8.5 Indemnification Procedure. An Indemnified Party seeking
\nindemnification shall deliver a Claim Certificate to Seller and, if prior to the
\nEscrow Termination Date, the Escrow Agent. Seller may object to any such claim
\nset forth in such Claim Certificate by providing written notice to such
\nIndemnified Party and, if prior to the Escrow Termination Date, the Escrow Agent
\nspecifying the basis for Seller’s objection, within ten (10) days following
\ndelivery of such Claim Certificate to Seller. If an objection to the amount of
\nLosses specified in such Claim Certificate is provided by Seller, and Seller and
\nthe Indemnified Party are unable to resolve such dispute after good faith
\ndiscussions within ten (10) days following the delivery of such objection
\nnotice, such dispute shall be resolved in accordance with appropriate legal
\nproceedings. If Seller does not object to the Claim Certificate within the
\nperiod specified, the Escrow Agent shall deliver to Buyer, as promptly as
\npracticable, an amount from the Escrow Fund equal to such identified Losses
\nabove the Basket Amount (or equal to the amount remaining in the Escrow Fund if
\nsuch identified Losses above the Basket Amount exceed the amount then in the
\nEscrow Fund).<\/p>\n
-48-<\/p>\n
8.6 Third Party Claims. In the event Buyer becomes aware of a
\nthird-party claim that Buyer reasonably believes may result in a demand for
\nindemnification pursuant to this ARTICLE 8, Buyer shall notify Seller of such
\nclaim, and Seller shall be entitled, at its expense, to participate in, but not
\nto determine or conduct, the defense of such claim. Buyer shall have the right
\nin its sole discretion to conduct the defense of and settle any such claim;
\nprovided, however, that except with the consent of the Seller, no settlement of
\nany such claim with third-party claimants shall be determinative of the amount
\nof Losses relating to such matter. In the event that Seller has consented to any
\nsuch settlement, Seller shall have no power or authority to object under any
\nprovision of this ARTICLE 8 to the amount of any claim by Buyer against Seller
\nwith respect to such settlement. If there is a third-party claim that, if
\nadversely determined would give rise to a right of recovery for Losses
\nhereunder, then any amounts incurred or accrued in defense of such third-party
\nclaim, regardless of the outcome of such claim, shall be deemed Losses
\nhereunder.<\/p>\n
8.7 Escrow Agent’s Duties.<\/p>\n
(a) The Escrow Agent shall be obligated only for the
\nperformance of such duties as are specifically set forth herein, and as set
\nforth in any additional written escrow instructions which the Escrow Agent may
\nreceive after the date of this Agreement which are signed by an officer of Buyer
\nand Seller, and may rely and shall be protected in relying or refraining from
\nacting on any instrument reasonably believed to be genuine and to have been
\nsigned or presented by the proper party or parties. The Escrow Agent shall not
\nbe liable for any act done or omitted hereunder as Escrow Agent while acting in
\ngood faith and in the exercise of reasonable judgment, and any act done or
\nomitted pursuant to the advice of legal counsel shall be conclusive evidence of
\nsuch good faith.<\/p>\n
(b) The Escrow Agent is hereby expressly authorized to
\ndisregard any and all warnings given by any of the parties hereto or by any
\nother Person, excepting only orders or process of courts of law, and is hereby
\nexpressly authorized to comply with and obey orders, judgments or decrees of any
\ncourt. In case the Escrow Agent obeys or complies with any such order, judgment
\nor decree of any court, the Escrow Agent shall not be liable to any of the
\nparties hereto or to any other Person by reason of such compliance,
\nnotwithstanding any such order, judgment or decree being subsequently reversed,
\nmodified, annulled, set aside, vacated or found to have been entered without
\njurisdiction.<\/p>\n
(c) The Escrow Agent shall not be liable in any respect
\non account of the identity, authority or rights of the parties executing or
\ndelivering or purporting to execute or deliver this Agreement or any documents
\nor papers deposited or called for hereunder.<\/p>\n
(d) The Escrow Agent shall not be liable for the
\nexpiration of any rights under any statute of limitations with respect to this
\nAgreement or any documents deposited with the Escrow Agent.<\/p>\n
(e) In performing any duties under this Agreement, the
\nEscrow Agent shall not be liable to any party for damages, losses, or expenses,
\nexcept for negligence or willful misconduct on<\/p>\n
-49-<\/p>\n
the part of the Escrow Agent. The Escrow Agent shall not incur any such
\nliability for (A) any act or failure to act made or omitted in good faith, or
\n(B) any action taken or omitted in reliance upon any instrument, including any
\nwritten statement of affidavit provided for in this Agreement that the Escrow
\nAgent shall in good faith believe to be genuine, nor will the Escrow Agent be
\nliable or responsible for forgeries, fraud, impersonations, or determining the
\nscope of any representative authority. In addition, the Escrow Agent may consult
\nwith legal counsel in connection with performing the Escrow Agent’s duties under
\nthis Agreement and shall be fully protected in any act taken, suffered, or
\npermitted by him\/her in good faith in accordance with the advice of counsel. The
\nEscrow Agent is not responsible for determining and verifying the authority of
\nany Person acting or purporting to act on behalf of any party to this Agreement.<\/p>\n
(f) If any controversy arises between the parties to this
\nAgreement, or with any other party, concerning the subject matter of this
\nAgreement, its terms or conditions, the Escrow Agent will not be required to
\ndetermine the controversy or to take any action regarding it. The Escrow Agent
\nmay hold all documents and the Escrow Amount and may wait for settlement of any
\nsuch controversy by final appropriate legal proceedings or other means as, in
\nthe Escrow Agent’s discretion, may be required, despite what may be set forth
\nelsewhere in this Agreement. In such event, the Escrow Agent will not be liable
\nfor damages. Furthermore, the Escrow Agent may at its option, file an action of
\ninterpleader requiring the parties to answer and litigate any claims and rights
\namong themselves. The Escrow Agent is authorized to deposit with the clerk of
\nthe court all documents and the Escrow Amounts held in escrow, except all costs,
\nexpenses, charges and reasonable attorney fees incurred by the Escrow Agent due
\nto the interpleader action and which the parties jointly and severally agree to
\npay. Upon initiating such action, the Escrow Agent shall be fully released and
\ndischarged of and from all obligations and liability imposed by the terms of
\nthis Agreement.<\/p>\n
(g) The parties and their respective successors and
\nassigns agree jointly and severally to indemnify and hold Escrow Agent harmless
\nagainst any and all losses, claims, damages, liabilities, and expenses,
\nincluding reasonable costs of investigation, counsel fees, including allocated
\ncosts of in-house counsel and disbursements that may be imposed on Escrow Agent
\nor incurred by Escrow Agent in connection with the performance of his\/her duties
\nunder this Agreement, including but not limited to any litigation arising from
\nthis Agreement or involving its subject matter, other than those arising out of
\nthe negligence or willful misconduct of the Escrow Agent.<\/p>\n
(h) The Escrow Agent may resign at any time upon giving
\nat least 30 days written notice to Buyer and Seller; provided, however, that no
\nsuch resignation shall become effective until the appointment of a successor
\nescrow agent. Buyer and Seller shall agree on a successor escrow agent within 30
\ndays after receiving such notice. If the parties fail to agree upon a successor
\nescrow agent within such time, the Escrow Agent shall have the right to appoint
\na successor escrow agent authorized to do business in the State of California.
\nThe successor escrow agent shall execute and deliver an instrument accepting
\nsuch appointment and it shall, without further acts, be vested with all the
\nestates, properties, rights, powers, and duties of the predecessor escrow agent
\nas if originally<\/p>\n
-50-<\/p>\n
named as escrow agent. Upon appointment of a successor escrow agent, the Escrow
\nAgent shall be discharged from any further duties and liability under this
\nAgreement.<\/p>\n
(i) All fees of the Escrow Agent for performance of its
\nduties hereunder shall be paid by Buyer in accordance with the standard fee
\nschedule of the Escrow Agent. It is understood that the fees and usual charges
\nagreed upon for services of the Escrow Agent shall be considered compensation
\nfor ordinary services as contemplated by this Agreement. In the event that the
\nconditions of this Agreement are not promptly fulfilled, or if the Escrow Agent
\nrenders any service not provided for in this Agreement, or if the parties
\nrequest a substantial modification of its terms, or if any controversy arises,
\nor if the Escrow Agent is made a party to, or intervenes in, any litigation
\npertaining to the Escrow Fund or its subject matter, the Escrow Agent shall be
\nreasonably compensated for such extraordinary services and reimbursed for all
\ncosts, attorney’s fees, including allocated costs of in-house counsel, and
\nexpenses occasioned by such default, delay, controversy or litigation.<\/p>\n
(j) Any corporation or other business entity into which
\nthe Escrow Agent in its individual capacity may be merged or converted or with
\nwhich it may be consolidated, or any corporation or other business entity
\nresulting from any merger, conversion or consolidation to which the Escrow Agent
\nin its individual capacity shall be a party, or any corporation or other
\nbusiness entity to which substantially all the corporate trust business of the
\nEscrow Agent in its individual capacity may be transferred, shall be the Escrow
\nAgent under this Escrow Agreement without further act.<\/p>\n
ARTICLE 9<\/p>\n
TERMINATION, AMENDMENT AND WAIVER<\/p>\n
9.1 Termination. Except as provided in Section 9.2, this Agreement
\nmay be terminated and the Acquisition abandoned at any time prior to the
\nClosing:<\/p>\n
(a) By the mutual written agreement of the parties;<\/p>\n
(b) By either Buyer or Seller, if (i) the Closing has not
\noccurred by June 25, 2003; provided, however, that the right to terminate this
\nAgreement under this Section 9.1(b)(i) shall not be available to any party whose
\nwillful failure to fulfill any obligation hereunder or other breach of this
\nAgreement has been the cause of, or resulted in, the failure of the Closing to
\noccur on or before such date; (ii) there shall be in effect a final
\nnonappealable order of a Governmental Entity preventing consummation of the
\nAcquisition; or (iii) there shall be any statute, rule, regulation or order
\nenacted, promulgated or issued or deemed applicable to the Acquisition by any
\nGovernmental Entity that would make consummation of the Acquisition illegal;<\/p>\n
-51-<\/p>\n
(c) By Buyer, if it is not in material breach of its
\nobligations under this Agreement and there has been a breach of any
\nrepresentation, warranty, covenant or agreement contained in this Agreement on
\nthe part of Seller and (i) Seller is not using its commercially reasonable
\nefforts to cure such breach, or has not cured such breach within 15 days, after
\nnotice of such breach has been given by Buyer to Seller in accordance with
\nSection 10.1; provided, however, that, no cure period shall be required for any
\nsuch breach which by its nature cannot be cured and (ii) as a result of such
\nbreach, one or more of the conditions set forth in Section 7.1 or Section 7.2
\nwould not be satisfied at or prior to the Closing;<\/p>\n
(d) By Seller, if it is not in material breach of its
\nobligations under this Agreement and there has been a breach of any
\nrepresentation, warranty, covenant or agreement contained in this Agreement on
\nthe part of Buyer and (i) Buyer is not using its commercially reasonable efforts
\nto cure such breach, or has not cured such breach within 15 days, after notice
\nof such breach has been given by Seller to Buyer in accordance with Section
\n10.1; provided, however, that, no cure period shall be required for any such
\nbreach which by its nature cannot be cured and (ii) as a result of such breach,
\none or more of the conditions set forth in Section 7.1 or Section 7.3 would not
\nbe satisfied at or prior to the Closing;<\/p>\n
(e) By Buyer, if there shall have occurred any event or
\ncondition of any character that has had a Material Adverse Effect; or<\/p>\n
(f) By Buyer, if there shall be any action taken, or any
\nstatute, rule, regulation or order enacted, promulgated or issued after the date
\nof this Agreement by any Governmental Entity, which would (i) prohibit or
\nmaterially and adversely restrict Buyer’s ownership or operation of any portion
\nof the Business of the Acquired Assets or (ii) compel Buyer to dispose of or
\nhold separate all or any portion of the Acquired Assets or the Business as a
\nresult of the Acquisition or any of its assets or other businesses.<\/p>\n
9.2 Procedure for and Effect of Termination.<\/p>\n
(a) In the event of the termination of this Agreement by
\nany of the parties in accordance with Section 9.1, written notice to the
\nnon-terminating party shall be given by the terminating party in accordance with
\nSection 10.1.<\/p>\n
(b) In the event of the termination of this Agreement as
\nprovided in Section 9.1, this Agreement shall forthwith become void and there
\nshall be no liability or obligation on the part of Buyer or Seller, or their
\nrespective officers, directors or stockholders, provided that each Party shall
\nremain liable for any fraud, intentional misrepresentation or willful or
\nintentional breach of this Agreement prior to its termination; and provided
\nfurther, that the provisions of Section 6.5, 6.6, ARTICLE 10, this Section 9.2
\nand the applicable definitions in ARTICLE 1 shall remain in full force and
\neffect and survive any termination of this Agreement.<\/p>\n
9.3 Amendment. This Agreement may be amended by the parties only
\nby the execution and delivery of an instrument in writing signed on behalf of
\nboth parties.<\/p>\n
-52-<\/p>\n
9.4 Extension; Waiver. At any time prior to the Closing, Buyer, on
\nthe one hand, and Seller, on the other hand, may, to the extent legally allowed,
\n(a) extend the time for the performance of any of the obligations of the other
\nparty, (b) waive any inaccuracies in the representations or warranties made to
\nsuch party contained herein or in any certificate, instrument or other document
\ndelivered pursuant the this Agreement, on or prior to the Closing Date, (c)
\nwaive compliance with any of the agreements or conditions for the benefit of
\nsuch party contained herein and (d) waive any conditions to the Closing
\ncontained herein. No such waiver shall operate as a waiver of any further or
\nother inaccuracies or breaches. Any agreement on the part of a party to any such
\nextension or waiver shall be valid only if set forth in a written instrument and
\nsigned and delivered on behalf of such party.<\/p>\n
ARTICLE 10<\/p>\n
MISCELLANEOUS<\/p>\n
10.1 Notices. All notices and other communications hereunder shall
\nbe in writing and shall be deemed given if delivered personally or by pre-paid
\novernight or same-day commercial messenger or courier service, or mailed by
\nregistered or certified mail (return receipt requested) or sent via facsimile
\n(with acknowledgment of complete transmission) to the parties at the following
\naddresses (or at such other address for a party as shall be specified by like
\nnotice):<\/p>\n
(a) if to Buyer, to:<\/p>\n
Overture Services, Inc.
\n 74 North Pasadena Avenue, 3rd Floor
\n Pasadena, CA 91103
\n Attn: President and Chief Executive Officer
\n Fax: (626) 685 5601<\/p>\n
with a copy to (which shall not constitute notice):<\/p>\n
Wilson Sonsini Goodrich & Rosati
\n 650 Page Mill Road
\n Palo Alto, CA 94304
\n Attn: Martin W. Korman, Esq.
\n Fax: (650) 493-6811<\/p>\n
(b) if to Seller, to:<\/p>\n
Fast Search & Transfer ASA
\n Stoperigata 2
\n P.O. Box 1677 Vika<\/p>\n
-53-<\/p>\n
NO-0120 Oslo
\n Norway
\n Attn: President
\n Fax: 47 23 01 12 01<\/p>\n
with a copy to (which shall not constitute notice):<\/p>\n
Lucash, Gesmer & Updegrove LLP
\n 40 Broad Street
\n Boston, MA 02109
\n Attn: William Contente
\n Fax: (617) 350-6878<\/p>\n
(c) if to the Escrow Agent, to:<\/p>\n
US Bank
\n One California Street, Suite 2550
\n San Francisco, CA 94111
\n Attn: Sheila K. Soares
\n Fax: (415) 273-4591<\/p>\n
All such notices, requests and other communications will (a) if
\ndelivered personally to the address as provided in this Section 10.1, be deemed
\ngiven upon delivery, (b) if delivered by facsimile transmission to the facsimile
\nnumber as provided for in this Section 10.1, be deemed given upon facsimile
\nconfirmation, and (c) if delivered by messenger or courier to the address as
\nprovided in this Section 10.1, be deemed given on the earlier of the first
\nbusiness day following the date sent by such messenger or courier upon receipt
\n(in each case regardless of whether such notice, request or other communication
\nis received by any other Person to whom a copy of such notice is to be delivered
\npursuant to this Section 10.1). Any party from time to time may change its
\naddress, facsimile number or other information for the purpose of notices to
\nthat party by giving notice specifying such change to the other parties hereto.<\/p>\n
10.2 Entire Agreement. This Agreement, the Exhibits and Schedules
\nhereto, the Ancillary Agreements and the documents and instruments and other
\nagreements among the parties referenced herein or therein constitute the entire
\nagreement among the parties with respect to the subject matter hereof and
\nthereof and supersede all prior agreements and understandings, both written and
\noral, among the parties with respect to the subject matter hereof and thereof.<\/p>\n
10.3 No Third Party Beneficiaries. This Agreement is solely for the
\nbenefit of (a) Buyer and its successors and permitted assigns with respect to
\nthe obligations of Seller under this Agreement and (b) Seller and its successors
\nand permitted assigns with respect to the obligations of Buyer under this
\nAgreement. This Agreement shall not be deemed to confer upon or give to any<\/p>\n
-54-<\/p>\n
other third party any remedy, claim, right to reimbursement, cause of action or
\nother right, unless expressly provided for in this Agreement.<\/p>\n
10.4 Headings. The headings and table of contents used in this
\nAgreement have been inserted for convenience of reference only and do not
\ndefine, limit, describe, explain, modify, amplify or add to the interpretation,
\nconstruction or meaning of any provision of, or scope or intent of, this
\nAgreement nor in any way effect this Agreement.<\/p>\n
10.5 Severability. In the event that any provision of this
\nAgreement or the application thereof, becomes or is declared by a court of
\ncompetent jurisdiction to be illegal, void or unenforceable, the remainder of
\nthis Agreement will continue in full force and effect and the application of
\nsuch provision to other Persons or circumstances will be interpreted so as
\nreasonably to effect the intent of the parties. The parties further agree to
\nreplace such void or unenforceable provision of this Agreement with a valid and
\nenforceable provision that will achieve, to the extent possible, the economic,
\nbusiness and other purposes of such void or unenforceable provision.<\/p>\n
10.6 Governing Law. This Agreement shall be governed by and
\nconstrued in accordance with the laws of the State of California without regard
\nto the conflicts of laws provisions thereof.<\/p>\n
10.7 Consent to Jurisdiction. Each of the parties hereto hereby
\nirrevocably and unconditionally submits, for itself and its property, to the
\nnonexclusive jurisdiction of any California state court, or Federal court of the
\nUnited States of America, sitting in Los Angeles County, California, and any
\nappellate court from any thereof, in any action or proceeding arising out of or
\nrelating to this Agreement or the agreements delivered in connection herewith or
\nthe transactions contemplated hereby or thereby or for recognition or
\nenforcement of any judgment relating thereto, and each of the parties hereby
\nirrevocably and unconditionally (i) agrees that any claim in respect of any such
\naction or proceeding may be heard and determined in such California state court
\nor, to the extent permitted by law, in such Federal court, (ii) waives, to the
\nfullest extent it may legally and effectively do so, any objection which it may
\nnow or hereafter have to the laying of venue of any such action or proceeding in
\nany such California state or Federal court, and (iii) waives, to the fullest
\nextent permitted by law, the defense of an inconvenient forum to the maintenance
\nof such action or proceeding in any such California state or Federal court. Each
\nof the parties hereto agrees that a final judgment in any such action or
\nproceeding shall be conclusive and may be enforced in other jurisdictions by
\nsuit on the judgment or in any other manner provided by law. Each party to this
\nAgreement irrevocably consents to service of process in the manner provided for
\nnotices herein. Nothing in this Agreement will affect the right of any party to
\nthis Agreement to serve process in any other manner permitted by law. Seller
\nhereby appoints Howard Novick, Fast Search & Transfer, Inc., 93 Worchester
\nStreet, Wellesley, MA 02481, tel: (781) 304 2400, fax: (781) 304 2410, as its
\nagent for service of process in connection with any dispute or action arising
\nhereunder.<\/p>\n
10.8 Waiver of Jury Trial. EACH OF BUYER AND SELLER HEREBY
\nIRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
\nCOUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
\nRELATING TO THIS AGREEMENT OR THE ACTIONS OF BUYER OR<\/p>\n
-55-<\/p>\n
SELLER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF,
\nINCLUDING THE REPUDIATION OF THIS AGREEMENT.<\/p>\n
10.9 Assignment. No party may assign or delegate either this
\nAgreement or any of its rights, interests, or obligations hereunder without the
\nprior written approval of the other party. Subject to the immediately preceding
\nsentence, this Agreement shall be binding upon and shall inure to the benefit of
\nthe parties hereto and their respective successors and permitted assigns.<\/p>\n
10.10 Counterparts. This Agreement may be executed in one or more
\ncounterparts, all of which shall be considered one and the same agreement and
\nshall become effective when one or more counterparts have been signed by each of
\nthe Parties and delivered to the other Party, it being understood that all
\nParties need not sign the same counterpart.<\/p>\n
10.11 Fees and Expenses. Subject to Section 8.2 all fees, costs and
\nexpenses incurred by a party in connection with this Agreement and the
\ntransactions contemplated hereby shall be paid by the party incurring such fees,
\ncosts and expenses, including fees, costs and expenses of any broker, finder,
\nattorney or other similar agent; provided, however, that filing fees under the
\nantitrust requirements of foreign government authorities, if any, shall be borne
\nequally by the parties.<\/p>\n
10.12 Specific Performance. The parties agree that irreparable
\ndamage would occur in the event that any of the provisions of this Agreement
\nwere not performed in accordance with their specific terms or were otherwise
\nbreached. It is accordingly agreed that the parties shall be entitled to an
\ninjunction or injunctions to prevent breaches of this Agreement and to enforce
\nspecifically the terms and provisions hereof in any court of the United States
\nor any state having jurisdiction, this being in addition to any other remedy to
\nwhich they are entitled at law or in equity.<\/p>\n
10.13 Exhibits and Schedules. The Exhibits and Schedules to this
\nAgreement, including the Disclosure Schedule, form an integral part of this
\nAgreement and are hereby incorporated by reference into this Agreement wherever
\nreference is made to them to the same extent as if they were set out in full.<\/p>\n
10.14 Other Remedies. Except as otherwise provided herein, any and
\nall remedies herein expressly conferred upon a party will be deemed cumulative
\nwith and not exclusive of any other remedy conferred hereby, or by law or equity
\nupon such party, and the exercise by a party of any one remedy will not preclude
\nthe exercise of any other remedy.<\/p>\n
-56-<\/p>\n
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
\nof the day and year first above written.<\/p>\n
OVERTURE SERVICES, INC.<\/p>\n
\/s\/ Ted Meisel
\n By: _____________________________<\/p>\n
Ted Meisel
\n Name: ___________________________<\/p>\n
CEO
\n Title: __________________________<\/p>\n
FAST SEARCH & TRANSFER ASA<\/p>\n
\/s\/ John M. Lervik
\n By: _____________________________<\/p>\n
John M. Lervik
\n Name: ___________________________<\/p>\n
CEO
\n Title: __________________________<\/p>\n
U.S. BANK TRUST,
\n NATIONAL ASSOCIATION<\/p>\n
\/s\/ Sheila Soares
\n By: _____________________________<\/p>\n
Sheila Soares
\n Name: ___________________________<\/p>\n
Assistant Vice President
\n Title: __________________________<\/p>\n
SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT<\/p>\n
EXHIBITS<\/p>\n
Exhibit A Form of General Assignment, Assumption and Bill of Sale
\nExhibit B Intellectual Property License Agreement
\nExhibit C Transition Services Agreement
\nExhibit D Interim Commercial Hosting Agreement<\/p>\n
SCHEDULES<\/p>\n
Schedule 1.1(l) Business Employees
\nSchedule 1.1(v) Consent Required Contracts
\nSchedule 1.1(zz) Terms of Joint Development Agreement
\nSchedule 1.1(aaa) Key Employees
\nSchedule 1.11.1(kkk) Offered Employees
\nSchedule 1.1(bbbb) Seller Subsidiaries
\nSchedule 1.1(dddd) Tangible Assets
\nSchedule 1.1(gggg) Third Party IP
\nSchedule 1.1(jjjj) Transferred Contracts
\nSchedule 1.1(llll) Transferred Intellectual Property Rights
\nSchedule 1.1(mmmm) Transferred Patents
\nSchedule 1.1(nnnn) Transferred Technology
\nSchedule 1.1(oooo) Transferred Trademarks
\nSchedule 3.2(b) Earn-Out
\nSchedule 4.9 Business Financial Statements
\nSchedule 6.20 Contracts to be Terminated or Amended
\nSchedule 7.2(d) Certain Third Party Consents
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