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Title: |
Asset Purchase Agreement |
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Entities: |
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Date: |
2004 |
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Size: |
85KB total |
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Price: |
$54 |
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ID: |
#1146413 |
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Start of Preview |
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SEPTEMBER 4, 2003
ASSET PURCHASE AGREEMENT
between
beTRUSTed US INC. and beTRUSTed (UK) LIMITED
and
BALTIMORE TECHNOLOGIES INC., BALTIMORE TECHNOLOGIES (UK) LIMITED, and
BALTIMORE TECHNOLOGIES PLC
Dated as of September 4, 2003
Exhibits
SEPTEMBER 4, 2003
TABLE OF CONTENTS
| Page | ||||||
|
1. |
Definitions. |
1 | ||||
|
2. |
Purchase and Sale of Assets; Assumption of Liabilities. |
4 | ||||
| (a) |
Purchase and Sale of Assets |
4 | ||||
| (b) |
Excluded Assets |
5 | ||||
| (c) |
Assumption of Liabilities |
5 | ||||
| (d) |
Excluded Liabilities |
6 | ||||
| (e) |
Purchase Price |
6 | ||||
| (f) |
The Closing |
7 | ||||
| (g) |
Deliveries at the Closing |
7 | ||||
| (h) |
Closing Costs, Transfer Taxes and Fees |
7 | ||||
|
3. |
Representations and Warranties of the Seller |
7 | ||||
| (a) |
Organization of the Seller |
8 | ||||
| (b) |
Authorization of Transaction |
8 | ||||
| (c) |
Noncontravention |
8 | ||||
| (d) |
Brokers Fees |
8 | ||||
| (e) |
Title to Tangible Assets |
8 | ||||
| (f) |
Legal Compliance |
8 | ||||
| (g) |
Tax Matters. |
8 | ||||
| (h) |
Certain Financial Information |
9 | ||||
| (i) |
Customer Contracts |
9 | ||||
| (j) |
Intentionally Omitted |
9 | ||||
| (k) |
Litigation |
10 | ||||
| (l) |
Disclaimer of other Representations and Warranties |
10 | ||||
|
4. |
Representations and Warranties of the Buyer |
10 | ||||
| (a) |
Organization of the Buyer |
10 | ||||
| (b) |
Authorization of Transaction |
10 | ||||
| (c) |
Noncontravention |
10 | ||||
| (d) |
Brokers Fees |
10 | ||||
| (e) |
Investigation |
10 | ||||
|
5. |
Pre-Closing Covenants |
11 | ||||
| (a) |
General |
11 | ||||
| (b) |
Notices and Consents |
11 | ||||
| (c) |
Operation of Business |
11 | ||||
| (d) |
Full Access |
11 | ||||
| (e) |
Notice of Developments |
11 | ||||
| (f) |
Retention of Employees |
12 | ||||
Exhibits
SEPTEMBER 4, 2003
|
6. |
Conditions to Obligation to Close. |
12 | ||||
| (a) |
Conditions to Obligation of the Buyer |
12 | ||||
| (b) |
Conditions to Obligation of the Seller |
12 | ||||
|
7. |
Termination. |
13 | ||||
| (a) |
Termination of Agreement |
13 | ||||
| (b) |
Effect of Termination |
14 | ||||
|
8. |
Miscellaneous. |
14 | ||||
| (a) |
Survival of Representations, Warranties and Agreements; No Other Representations and Warranties |
14 | ||||
| (b) |
Confidentiality |
15 | ||||
| (c) |
Press Releases and Public Announcements |
15 | ||||
| (d) |
No Third-Party Beneficiaries |
16 | ||||
| (e) |
Entire Agreement |
16 | ||||
| (f) |
Succession and Assignment |
16 | ||||
| (g) |
Counterparts |
16 | ||||
| (h) |
Nonforeign Affidavit |
16 | ||||
| (i) |
Notices |
16 | ||||
| (j) |
Governing Law; Waiver of Jury Trial |
17 | ||||
| (k) |
Limitation on Liability |
17 | ||||
| (l) |
Amendments and Waivers |
18 | ||||
| (m) |
Severability |
18 | ||||
| (n) |
Expenses |
18 | ||||
| (o) |
Construction |
18 | ||||
| (p) |
Incorporation of Exhibits and Schedules |
18 | ||||
| (q) |
Bulk Transfer Laws |
19 | ||||
Exhibits
SEPTEMBER 4, 2003
ASSET PURCHASE AGREEMENT
Agreement entered into as of September 4, 2003, by and between beTRUSTed US INC., a Delaware corporation (beTrusted US), and beTRUSTed (UK) LIMITED, a United Kingdom corporation (beTrusted UK and together with beTrusted US, the Buyer), and BALTIMORE TECHNOLOGIES INC., a Massachusetts corporation, BALTIMORE TECHNOLOGIES (UK) LIMITED, an English corporation, and BALTIMORE TECHNOLOGIES PLC, and Irish corporation (collectively, the Seller). The Buyer and the Seller are referred to collectively herein as the Parties.
WHEREAS, the Buyer desires to purchase the Acquired Assets (as defined below) and to assume the Assumed Liabilities (as defined below) from the Seller, and the Seller desires to sell the Acquired Assets and to transfer the Assumed Liabilities to the Buyer, upon the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Parties hereto agree as follows:
| 1. | Definitions. |
Acquired Assets has the meaning set forth in Section 2(a).
Acquired Business means the business relating to, or carried out with the use of, OmniRoot by the Seller on the date hereof, including (i) the OmniRoot certificate business and (ii) the SureServer certificate business.
Affiliate has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act of 1934, as amended.
Assumed Liabilities has the meaning set forth in Section 2(c).
Books and Records means (i) all records and lists of the Seller, including lists of customers, suppliers or personnel, (ii) all product, business and marketing plans of the Seller, and (iii) all books, ledgers, files, reports, plans, drawings and operating records of every kind maintained by the Seller, in each case relating directly to the Acquired Business, but excluding the Sellers minute books, stock books or other corporate records.
Cash means cash and cash equivalents (including marketable securities and short term investments) calculated in accordance with GAAP.
Closing has the meaning set forth in Section 2(f).
Closing Date has the meaning set forth in Section 2(f).
Code means the Internal Revenue Code of 1986, as amended.
Exhibits
SEPTEMBER 4, 2003
Confidential Information means any information concerning the businesses and affairs of the Acquired Business, the Acquired Assets, the Assumed Liabilities, the Seller and its Subsidiaries that is not already generally available to the public (including, the terms or existence of this Agreement).
Contract means all contracts, leases, licenses, commitments, understandings and agreements, whether oral or written or express or implied, relating directly to the Acquired Business to which the Seller is a party or is bound and are being assigned to and assumed by the Buyer and are identified on Schedule 3(i) of the Seller Disclosure Schedule under a heading other than Customer Contracts.
Customer Contracts means the written Contracts between the Seller and its customers which relate to the Acquired Business and are being assigned to and assumed by the Buyer and are identified on Schedule 3(i) of the Seller Disclosure Schedule as Customer Contracts.
Excluded Assets has the meaning set forth in Section 2(b).
Excluded Liabilities has the meaning set forth in Section 2(d).
GAAP means United States generally accepted accounting principles as in effect from time to time.
Included Equipment means all of the machinery, equipment and other tangible personal property owned, leased or licensed by the Seller which is used or held for use in the operation of the Acquired Business and is to be acquired by or assigned to the Buyer and which is identified on Schedule 1 of the Seller Disclosure Schedule.
Income Tax means any federal, state, local, or foreign income tax, including any interest, penalty, or addition thereto, whether disputed or not.
Income Tax Return means any return, declaration, report, claim for refund, or information return or statement relating to Income Taxes, including any schedule or attachment thereto.
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