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Title: |
Asset Purchase Agreement |
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Entities: |
Kulicke & Soffa Industries Inc.; Drinker Biddle & Reath LLP; Greenberg Traurig |
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Date: |
2004 |
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Size: |
154KB total |
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Price: |
$55 |
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ID: |
#1161258 |
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Start of Preview |
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ASSET PURCHASE AGREEMENT
Between
FLIPCHIP INTERNATIONAL, LLC
and
FLIP CHIP TECHNOLOGIES, LLC
February 6, 2004
TABLE OF CONTENTS
| Page | ||||
| Article I SALE AND PURCHASE OF ASSETS | 1 | |||
| 1.1 | Sale and Purchase of Assets | 1 | ||
| 1.2 | Payment for Assets | 4 | ||
| 1.3 | Closing Date Balance Sheet | 5 | ||
| 1.4 | Disputes | 5 | ||
| Article II CLOSING | 6 | |||
| 2.1 | Closing | 6 | ||
| 2.2 | Deliveries by the Seller | 6 | ||
| 2.3 | Deliveries by Buyer | 7 | ||
| 2.4 | Termination in Absence of Closing | 7 | ||
| Article III REPRESENTATIONS AND WARRANTIES THE SELLER | 8 | |||
| 3.1 | Corporate Existence and Qualification | 8 | ||
| 3.2 | Authority, Approval and Enforceability | 8 | ||
| 3.3 | Adequacy of Assets | 8 | ||
| 3.4 | No Seller Defaults or Consents | 9 | ||
| 3.5 | No Proceedings | 9 | ||
| 3.6 | Employee Benefit Matters. | 9 | ||
| 3.7 | Financial Statements; Liabilities; Accounts Receivable. | 11 | ||
| 3.8 | Absence of Certain Changes. | 11 | ||
| 3.9 | Compliance with Laws | 13 | ||
| 3.10 | Litigation | 13 | ||
| 3.11 | Real Property. | 14 | ||
| 3.12 | Commitments. | 14 | ||
| 3.13 | Insurance | 15 | ||
| 3.14 | Intangible Rights | 15 | ||
| 3.15 | Equipment and Other Tangible Property | 16 | ||
| 3.16 | Permits; Environmental Matters. | 16 | ||
| 3.17 | Suppliers and Customers | 17 | ||
| 3.18 | Absence of Certain Business Practices | 18 | ||
| 3.19 | Products, Services and Authorizations. | 18 | ||
| 3.20 | Transactions With Affiliates | 18 | ||
| 3.21 | Other Information | 19 | ||
| 3.22 | Disclaimers | 19 | ||
| Article IV REPRESENTATIONS AND WARRANTIES OF BUYER | 19 | |||
| 4.1 | Corporate Existence and Qualification | 19 | ||
| 4.2 | Authority, Approval and Enforceability | 19 | ||
| 4.3 | No Default or Consents | 20 | ||
-i-
TABLE OF CONTENTS
(Cont.)
| Page | ||||
| 4.4 | No Proceedings | 20 | ||
| 4.5 | Financing | 20 | ||
| Article V OBLIGATIONS PRIOR TO CLOSING | 20 | |||
| 5.1 | Buyer's Access to Information and Properties | 20 | ||
| 5.2 | Conduct of Business and Operations | 21 | ||
| 5.3 | General Restrictions | 21 | ||
| 5.4 | Notice Regarding Changes | 22 | ||
| 5.5 | Ensure Conditions Met | 22 | ||
| 5.6 | Employee Matters. | 23 | ||
| 5.7 | Environmental Due Diligence | 24 | ||
| 5.8 | Survey | 25 | ||
| 5.9 | No Shop | 25 | ||
| 5.10 | Name Change | 25 | ||
| Article VI CONDITIONS TO SELLERS AND BUYER'S OBLIGATIONS | 26 | |||
| 6.1 | Conditions to Obligations of the Seller | 26 | ||
| 6.2 | Conditions to Obligations of Buyer | 26 | ||
| Article VII POST-CLOSING OBLIGATIONS | 28 | |||
| 7.1 | Further Assurances | 28 | ||
| 7.2 | Publicity | 28 | ||
| 7.3 | Post-Closing Indemnity by the Seller | 28 | ||
| 7.4 | Post-Closing Indemnity by Buyer | 28 | ||
| 7.5 | Non-Competition, Non-Solicitation and Non-Disclosure. | 29 | ||
| 7.6 | Delivery of Property Received by the Seller After Closing | 30 | ||
| 7.7 | Buyer Appointed Attorney for the Seller | 31 | ||
| 7.8 | Assignment of Contracts | 31 | ||
| 7.9 | Employees. | 31 | ||
| 7.10 | Satisfaction of Payables. | 31 | ||
| 7.11 | Reimbursement for Employee-Related Expenses | 32 | ||
| Article VIII TAX MATTERS | 32 | |||
| 8.1 | Representations and Obligations Regarding Taxes | 32 | ||
| 8.2 | Indemnification for Taxes. | 33 | ||
| 8.3 | Internal Revenue Service Forms | 34 | ||
| Article IX MISCELLANEOUS | 34 | |||
| 9.1 | Limitation on Liability. | 34 | ||
| 9.2 | Confidentiality. | 36 | ||
| 9.3 | Brokers | 37 | ||
| 9.4 | Costs and Expenses | 37 | ||
| 9.5 | Notices | 37 | ||
| 9.6 | Governing Law | 38 | ||
-ii-
TABLE OF CONTENTS
(Cont.)
| Page | ||||
| 9.7 | Dispute Resolution | 38 | ||
| 9.8 | Representations and Warranties | 39 | ||
| 9.9 | Entire Agreement; Amendments and Waivers | 39 | ||
| 9.10 | Binding Effect and Assignment | 40 | ||
| 9.11 | Exclusive Remedies | 40 | ||
| 9.12 | No Withholding of Payments | 40 | ||
| 9.13 | Exhibits and Schedules | 40 | ||
| 9.14 | Multiple Counterparts | 40 | ||
| 9.15 | References and Construction. | 41 | ||
| 9.16 | Survival | 41 | ||
| 9.17 | Attorneys' Fees | 41 | ||
| 9.18 | Risk of Loss | 41 | ||
| Article X DEFINITIONS | 41 | |||
| 10.1 | Adjusted Current Assets | 41 | ||
| 10.2 | Adjusted Current Liabilities | 41 | ||
| 10.3 | Affiliate | 42 | ||
| 10.4 | Closing Accounts Difference | 42 | ||
| 10.5 | Collateral Agreements | 42 | ||
| 10.6 | Confidential Information | 42 | ||
| 10.7 | Contracts | 42 | ||
| 10.8 | Damages | 42 | ||
| 10.9 | FOC Flip Chip Services | 42 | ||
| 10.10 | GAAP | 43 | ||
| 10.11 | Governmental Authorities | 43 | ||
| 10.12 | Hazardous Material | 43 | ||
| 10.13 | Inventory | 43 | ||
| 10.14 | Knowledge of the Seller | 43 | ||
| 10.15 | Leased Premises | 43 | ||
| 10.16 | Legal Requirements | 43 | ||
| 10.17 | Permits | 43 | ||
| 10.18 | Person | 44 | ||
| 10.19 | Product | 44 | ||
| 10.20 | Properties | 44 | ||
| 10.21 | Purchase Price Adjustment | 44 | ||
| 10.22 | Real Property | 44 | ||
| 10.23 | Regulations | 44 | ||
| 10.24 | September Accounts Difference | 44 | ||
| 10.25 | Subsidiary | 44 | ||
| 10.26 | Tax | 44 | ||
| 10.27 | Taxes | 44 | ||
| 10.28 | Tax Return | 44 | ||
| 10.29 | Total Receivables | 45 | ||
| 10.30 | Trade Secrets | 45 | ||
-iii-
TABLE OF CONTENTS
(Cont.)
| Page | ||||
| 10.31 | Ultra CSP Services | 45 | ||
| 10.32 | Used | 45 |
-iv-
LIST OF SCHEDULES
| Schedule 1.1(a)(iii) | Equipment | |
| Schedule 1.1(b)(viii) | Excluded Assets | |
| Schedule 1.1(d) | Assumed Obligations | |
| Schedule 1.2 | Allocation of Purchase Price | |
| Schedule 3.1 | Qualifications as Foreign Corporation | |
| Schedule 3.4 | Seller Defaults or Consents | |
| Schedule 3.6(a) | Employee Arrangements | |
| Schedule 3.6(c) | Benefit Plan Liabilities | |
| Schedule 3.6(d) | Current Employees | |
| Schedule 3.6(e) | Terminated Employees | |
| Schedule 3.7(a) | Financial Statements | |
| Schedule 3.7(b) | Scheduled Liabilities | |
| Schedule 3.7(c) | Accounts Receivable Aging Report | |
| Schedule 3.7(d) | Inventory | |
| Schedule 3.7(e) | Encumbrances | |
| Schedule 3.8(a) | Certain Material Changes Circumstances | |
| Schedule 3.8(b) | Certain Material Changes Events | |
| Schedule 3.9(a) | Compliance with Law | |
| Schedule 3.9(b) | Citations | |
| Schedule 3.10 | Litigation | |
| Schedule 3.11 | Leased Premises | |
| Schedule 3.12 | Commitments | |
| Schedule 3.12(c) | Non-Arms Length Contracts | |
| Schedule 3.13 | Insurance | |
| Schedule 3.14 | Intangible Rights | |
| Schedule 3.15 | Tangible Assets Condition | |
| Schedule 3.16(a) | Permits | |
| Schedule 3.16(b) | Environmental Claims | |
| Schedule 3.16(c) | Hazardous Materials | |
| Schedule 3.16(d) | Environmental Law Compliance | |
| Schedule 3.17 | Suppliers and Customers | |
| Schedule 3.19(b) | Other Person Authorizations | |
| Schedule 3.20 | Affiliate Transactions | |
| Schedule 4.3 | Buyer Defaults or Consents | |
| Schedule 4.5 | Financing | |
| Schedule 5.6 | Employees to be Hired by Buyer | |
| Schedule 6.2(i) | Consents | |
| Schedule 8.1(a) | Tax Returns | |
| Schedule 8.1(c) | Taxes |
-v-
LIST OF EXHIBITS
|
Exhibit A |
Purchase Price Escrow Agreement | A-1 | ||||
|
Exhibit B |
Transition Services Agreement | B-1 | ||||
|
Exhibit C |
K&S Guaranty | C-1 | ||||
|
Exhibit D |
Assignment and Assumption of Lease Agreement | D-1 | ||||
|
Exhibit E |
Standby Letter of Credit Agreement | E-1 | ||||
|
Exhibit F |
Assignment and Assumption Agreement | F-1 | ||||
|
Exhibit G |
Equipment Sublease | G-1 | ||||
|
Exhibit H |
RoseStreet Guaranty | H-1 | ||||
|
Exhibit I |
Intellectual Property Security Agreement | I-1 | ||||
|
Exhibit J |
Opinion of Seller Counsel | J-1 | ||||
-vi-
Execution Version
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the Agreement) is made and entered into as of the 6th day of February, 2004, by and between (i) FlipChip International, LLC, a Delaware limited liability company (the Buyer), and (ii) Flip Chip Technologies, LLC, a Delaware limited liability company (the Seller).
Recitals
A. Buyer desires to purchase substantially all of the assets of Seller.
B. The Seller desires to sell and Buyer desires to purchase such assets upon the terms and subject to the conditions set forth herein.
Agreement
NOW, THEREFORE, in consideration of the premises and of the mutual covenants contained herein, the parties agree as follows:
ARTICLE I
SALE AND PURCHASE OF ASSETS
1.1 Sale and Purchase of Assets
(a) On the terms and subject to the conditions of this Agreement, at the Closing referred to in Section 2.1 hereof, the Seller shall sell, convey, assign, transfer and deliver to Buyer, and Buyer shall purchase, acquire and accept delivery of, all assets and properties Used by Seller in connection with its business (the Business) (excluding only the Excluded Assets as defined below), including, without limiting the generality of the foregoing, each and all of the following:
(i) all accounts receivable attributable to or arising in connection with the Business;
(ii) all raw materials, work-in-process, inventories and other materials Used by the Seller in connection with the Business wherever located and including all inventory in transit or on order and not yet delivered, and all rights with respect to the processing and completion of any work-in-process related to the Business, including the right to collect and receive charges for services performed by the Seller with respect thereto;
(iii) all supplies, equipment, vehicles, machinery, furniture, fixtures, leasehold improvements and other tangible property Used by the Seller in connection with the Business, and the Sellers interest as lessee in any leases with respect to any of the foregoing, including but not limited to the assets listed on Schedule 1.1(a)(iii);
(iv) all of the right, title and interest of the Seller in and to Contracts Used by the Seller in connection with the Business, including the Contracts listed or required to be listed on Schedule 3.12;
-1-
(v) all Intangible Rights, Confidential Information, computer software and licenses, formulae, designs and drawings, quality control data, processes (whether secret or not), methods, inventions and other similar know-how or rights Used by the Seller in the conduct of the Business, including, but not limited to, the areas of manufacturing, marketing, advertising and personnel training and recruitment, including all files, manuals, documentation and source and object codes related thereto;
(vi) all utility, security and other deposits and prepaid expenses related to the Business;
(vii) the Business as a going concern and its franchises, Permits and other authorizations of Governmental Authorities (to the extent such Permits and other authorizations of Governmental Authorities are transferable) and third parties, licenses, telephone numbers, customer lists, vendor lists, referral lists and contacts, advertising materials and data, restrictive covenants and similar obligations owing to the Seller in connection with the Business from its present and former members, officers, employees, agents and others, together with all books, operating data and records (including financial, accounting and credit records), files, papers, records and other data of the Seller related to the Business;
(viii) all rights to real property Used by the Seller in connection with the Business; and
(ix) all other property and rights of every kind or nature Used by the Seller in the operation of the Business.
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