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Asset Purchase Agreement

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Title:

Asset Purchase Agreement

Entities:

Napster Inc; Roxio, Inc.; Greenberg Traurig

Date:

2002

Size:

95KB total

Price:

$39

ID:

#1392108

► Purchase & Sale ► Purchase ► Asset Purchase Agreements
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Start of Preview

ASSET PURCHASE AGREEMENT

dated as of

November 15, 2002

Between

NAPSTER, INC.,

NAPSTER MUSIC COMPANY, INC.,

NAPSTER MOBILE COMPANY, INC.

AND

ROXIO, INC

TABLE OF CONTENTS

		Page
ARTICLE 1

DEFINITIONS

Section 1.1	Definitions	1

ARTICLE 2

PURCHASE AND SALE

Section 2.1	Purchase and Sale	5
Section 2.2	Excluded Assets	7
Section 2.3	Assumption of Liabilities	7
Section 2.4	Excluded Liabilities	7
Section 2.5	Assignment of Contracts and Rights	9
Section 2.6	Consideration	9
Section 2.7	Allocation	9
Section 2.8	Closing	9

ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF SELLERS

Section 3.1	Organization and Standing; Authority	10
Section 3.2	No Conflicts; Consents	10
Section 3.3	Sufficiency of and Title to the Purchased Assets	11
Section 3.4	Required Consents	11
Section 3.5	Material Contracts	11
Section 3.6	Intellectual Property	13
Section 3.7	Litigation	14
Section 3.8	Compliance with Laws and Court Orders	14
Section 3.9	Brokers and Finders	15
Section 3.10	Subsidiaries	15
Section 3.11	No Warranties	15

ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF BUYER

Section 4.1	Organization and Standing; Authority	15
Section 4.2	No Conflicts; Consents	15
Section 4.3	Availability of Funds	16
Section 4.4	Brokers and Finders	16
Section 4.5	Payments	16

-i-

TABLE OF CONTENTS

(continued)

		Page
Section 4.6	No Warranties	16
Section 4.7	Actions and Proceedings, etc	16

ARTICLE 5

COVENANTS OF SELLERS

Section 5.1	Conduct of the Intended Business	17
Section 5.2	Access to Information; Assistance	17
Section 5.3	Notices of Certain Events	18
Section 5.4	Bankruptcy Court Approval	18
Section 5.5	Permits	19
Section 5.6	Cure Amounts	19
Section 5.7	Name Changes	19

ARTICLE 6

COVENANTS OF BUYER

Section 6.1	Confidentiality	20
Section 6.2	No Additional Representations	20
Section 6.3	Supplemental Disclosure	21
Section 6.4	Assignment to Affiliate	21
Section 6.5	Buyers Cooperation	21
Section 6.6	Delivery of List of Assumed Contracts	21

ARTICLE 7

COVENANTS OF ALL PARTIES

Section 7.1	Commercially Reasonable Efforts; Further Assurances	20
Section 7.2	Certain Filings	22
Section 7.3	Public Announcements	22
Section 7.4	Post-Closing Access to Books and Records	22

ARTICLE 8

TAX MATTERS

Section 8.1	Tax Matters	22
Section 8.2	Tax Cooperation; Allocation of Taxes	23
Section 8.3	Transfer Taxes	24
Section 8.4	Tax Payments Made by Buyer	24

-ii-

TABLE OF CONTENTS (continued)
		Page

	ARTICLE 9

CONDITIONS TO CLOSING

Section 9.1	Conditions to Buyers Obligations	24
Section 9.2	Conditions to Obligation of Sellers	25
Section 9.3	Frustration of Conditions	26

ARTICLE 10

SURVIVAL

Section 10.1	Survival	26

ARTICLE 11

TERMINATION

Section 11.1	Grounds for Termination	26
Section 11.2	Effect of Termination	27

ARTICLE 12

MISCELLANEOUS

Section 12.1	Notices	27
Section 12.2	Amendments and Waivers	28
Section 12.3	Fees and Expenses	29
Section 12.4	Successors and Assigns	29
Section 12.5	Governing Law	29
Section 12.6	Counterparts; Effectiveness	29
Section 12.7	Entire Agreement; Third Party Beneficiaries	29
Section 12.8	Captions	29
Section 12.9	Severability	29
Section 12.10	Consent to Jurisdiction	30
Section 12.11	WAIVER OF JURY TRIAL	30

-iii-

ASSET PURCHASE AGREEMENT

ASSET PURCHASE AGREEMENT dated as of November 15, 2002 between Napster, Inc., a Delaware corporation (Napster), Napster Music Company, Inc., a Delaware corporation and a wholly-owned subsidiary of Napster (Napster Music), Napster Mobile Company, Inc., a Delaware corporation and a wholly-owned subsidiary of Napster (Napster Mobile and, together with Napster and Napster Music, the Sellers), and Roxio, Inc., a Delaware corporation (Buyer).

W I T N E S S E T H:

WHEREAS, on June 3, 2002 (the Petition Date), Sellers filed voluntary petitions for relief pursuant to chapter 11 of The Bankruptcy Reform Act of 1978, as codified in title 11 of the United States Code 101-1330 (as amended, the Bankruptcy Code) in the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court) and such case (the Bankruptcy Case) is presently pending under Case No. 02-11573 (PJW) (Jointly Administered);

WHEREAS, on October 2, 2002 the Bankruptcy Court entered an order appointing Hobart G. Truesdell as the Chapter 11 Trustee of the Sellers and their estates (the Trustee) pursuant to Section 1104 of the Bankruptcy Code; and

WHEREAS, subject to approval of the Bankruptcy Court, as set forth herein, Buyer desires to acquire from Sellers, and Sellers desire to sell, convey, transfer and assign to Buyer, the Purchased Assets (as defined below), together with certain obligations and liabilities, all in the manner and subject to the terms and conditions set forth herein and in accordance with Sections 363 and 365 and other applicable provisions of the Bankruptcy Code.

NOW, THEREFORE, the parties hereto agree as follows:

ARTICLE 1

DEFINITIONS

Section 1.1 Definitions.

(a) The following terms, as used herein, have the following meanings:

Affiliate of any Person shall mean any Person directly or indirectly controlling, controlled by, or under common control with, such Person; provided, that for the purposes of this definition, control (including, with correlative meanings, the terms controlled by and under common control with), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, membership or partnership interests, election or appointment of directors, by contract or otherwise.

Agreement means this Agreement and all exhibits and schedules attached hereto, as amended, consolidated, supplemented, novated or replaced by the parties from time to time, as the same may be amended from time to time.

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