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Asset Acquisition Agreement

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Title:

Asset Acquisition Agreement

Entities:

Google, Inc.; Rackable Systems, Inc.; Silicon Valley Bank

Date:

2005

Size:

135KB total

Price:

$64

ID:

#1284014

► M&A ► Acquisition ► Asset Acquisition Agreements
► Technology

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ASSET ACQUISITION AGREEMENT

BY AND BETWEEN

RACKABLE SYSTEMS, INC.

AND

RACKABLE CORPORATION

DATED AS OF DECEMBER 23, 2002

TABLE OF CONTENTS


		PAGE
SECTION 1.	PURCHASE AND SALE OF ASSETS	1

1.1	Purchase and Sale; Consideration	1

1.2	Intentionally Left Blank	2

1.3	Closing	2

1.4	Use of Proceeds	2

SECTION 2.	REPRESENTATIONS AND WARRANTIES OF THE COMPANY	2

2.1	Organization of the Company	2

2.2	Capitalization and Ownership of the Company	2

2.3	Authorization of Transaction	3

2.4	Noncontravention	4

2.5	Brokers Fees	4

2.6	Title to Assets	4

2.7	All Assets Necessary to Conduct Business	4

2.8	Subsidiaries	4

2.9	Financial Statements	4

2.10	Indebtedness and Guarantees	5

2.11	Absence of Certain Changes and Events	5

2.12	Absence of Undisclosed Liabilities	7

2.13	Legal and Other Compliance	7

2.14	No Material Adverse Change	7

2.15	Taxes	8

2.16	Property, Plant and Equipment	9

2.17	Intellectual Property	9

2.18	Contracts	12

2.19	Borrowing Base	13

2.20	Insurance and Risk Management	13

2.21	Litigation	13

2.22	Product Warranty and Liability	14

2.23	Employees	14

2.24	Employee Benefits	14

-i-

TABLE OF CONTENTS

(CONTINUED)


		PAGE
2.25	Environment, Health, and Safety	16

2.26	Affiliated Transactions	17

2.27	Customers and Suppliers	17

2.28	No Illegal Payments, Etc.	17

2.29	Consents	17

2.30	No Acceleration of Rights or Benefits	18

2.31	Reliance by Acquiror	18

SECTION 3.	REPRESENTATIONS AND WARRANTIES OF THE ACQUIRORS	18

3.1	Organization of the Acquiror	18

3.2	Authority for Agreement	18

3.3	Brokers Fees	19

3.4	Reliance by the Company	19

SECTION 4.	CONDITIONS TO OBLIGATION TO CLOSE	19

4.1	Conditions to Obligation of the Acquiror	19

4.2	Conditions to Obligations of the Company	21

SECTION 5.	EMPLOYEES	21

5.1	Transferred Employees	21

5.2	Employee Benefit Arrangements	21

5.3	Post-Closing Employee Benefits	22

SECTION 6.	POST-CLOSING COVENANTS	22

6.1	Certain Tax Matters	22

6.2	Post-Closing Employee Benefits	22

SECTION 7.	INTENTIONALLY LEFT BLANK	22

SECTION 8.	DEFINITIONS	23

8.1	Certain Matters of Construction	23

8.2	Cross Reference Table	23

8.3	Certain Definitions	24

SECTION 9.	MISCELLANEOUS	31

9.1	Press Releases and Public Announcements	31

9.2	Third Party Beneficiaries	31

-ii-

TABLE OF CONTENTS

(CONTINUED)


		PAGE
9.3	Entire Agreement	31

9.4	Succession and Assignment	31

9.5	Counterparts	31

9.6	Headings	31

9.7	Notices	32

9.8	Governing Law; Jurisdiction	32

9.9	Amendments and Waivers	33

9.10	Severability	33

9.11	Intentionally Left Blank	33

9.12	Remedies	33

9.13	Construction	33

9.14	Generally Accepted Accounting Principles	33

9.15	Delivery by Facsimile	34

9.16	Payment Set Aside	34

9.17	Incorporation of Exhibits and Schedules	34

9.18	Specific Performance	34

9.19	Further Assurances	34

9.20	Unassigned Contracts or Permits	34

9.21	Acknowledgement	35

9.22	Reliance	35

SECTION 10.	WAIVER OF JURY TRIAL	35

-iii-

EXHIBITS


Exhibit A	-	Financial Statements

Exhibit B	-	Document Closing Checklist

Exhibit C	-	Transferred Employees

Exhibit D	-	Form of Advisory Agreement

Exhibit E	-	Amended and Restated Broker Agreement

Exhibit F	-	Employee Proprietary Information and Inventions Agreement

Exhibit G	-	Form of Employment Agreement

Exhibit H	-	Form of Founders Agreement

Exhibit I	-	Form of Opinion of Counsel to the Company

Exhibit J	-	Form of Option Agreement

Exhibit K	-	Form of Option Plan

Exhibit L	-	Form of Registration Agreement

Exhibit M	-	Schedule of Retained Liabilities

Exhibit N	-	Form of Stockholder Voting Agreement

-iv-

ASSET ACQUISITION AGREEMENT

This ASSET ACQUISITION AGREEMENT (this Agreement) is made as of December 23, 2002, by and among Rackable Systems. Inc., a Delaware corporation (the Company), Rackable Corporation, a Delaware corporation (the Acquiror) and each of Giovanni Coglitore, Nikolai Gallo and Jack Randall (each a Founder, and, collectively, the Founders). The Company and the Acquiror are referred to herein collectively as the Parties.

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