Preview | Asset Purchase Agreement | Olin Acquisition Corporation; Vari-L Company, Inc.; Vl Dissolution Corp (sirenza Microdevices Inc)

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Asset Purchase Agreement

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Title:

Asset Purchase Agreement

Entities:

Sirenza Microdevices, Inc.; Bank of America, NA; Nasdaq Stock Market Inc.; Cooley Godward LLP; Wilson Sonsini Goodrich & Rosati; Olin Acquisition Corporation; Vari-L Company, Inc.; Vl Dissolution Corp (sirenza Microdevices Inc)

Date:

2002

Size:

Preview shows 84KB of 242KB total

Price:

$75

ID:

#167666

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ASSET PURCHASE AGREEMENT

By and Among

SIRENZA MICRODEVICES, INC.,

OLIN ACQUISITION CORPORATION

and

VARI-L COMPANY, INC.

December 2, 2002

TABLE OF CONTENTS

		Page
ARTICLE 1 DEFINITIONS		1
1.1	Capitalized Terms	1
1.2	Construction	7

ARTICLE 2 PURCHASE AND SALE		8
2.1	Purchase and Sale of Assets	8
2.2	Assumed Liabilities	9
2.3	Excluded Liabilities	9
2.4	Consideration	10
2.5	Closing	10
2.6	Adjustment of Purchase Price	11
2.7	Allocation of Consideration	12
2.8	Transfer Taxes	13
2.9	Further Assurances; Post-Closing Cooperation	13

ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER		13
3.1	Organization of Seller; Books and Records	13
3.2	Authority	14
3.3	No Conflict	15
3.4	SEC Filings; Seller Financial Statements	15
3.5	Transferred Contracts	16
3.6	Consents; Capitalization	16
3.7	Sufficiency of Consideration	16
3.8	No Liquidation, Insolvency, WindingUp	17
3.9	Restrictions on Business Activities	17
3.10	Title to Properties; Absence of Liens and Encumbrances; Condition of Equipment	17
3.11	Customers and Sales	18
3.12	Distributor Inventory	19
3.13	Intellectual Property	19
3.14	Litigation	21
3.15	Brokers or Finders Fees; Fairness Opinion	21
3.16	Tax Matters	21
3.17	Power of Attorney	22
3.18	Affiliated Transactions	22
3.19	Compliance with Laws	22
3.20	Product Warranties	22
3.21	Bulk Transfer Laws	22
3.22	Employee Matters	23
3.23	Environmental Matters	25
3.24	Accounts Receivable and Accounts Payable	26
3.25	Sufficiency of Acquired Assets	27
3.26	Business Changes	27
3.27	Excluded Liabilities; Seller Creditors	27
3.28	Disclosure	27

ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PARENT AND BUYER		28
4.1	Organization, Good Standing and Qualification	28
4.2	Authority	28
4.3	Stock Consideration	28
4.4	No Conflict	28
4.5	SEC Filings	29

TABLE OF CONTENTS

(continued)

		Page
4.6	Consents	29
4.7	Brokers and Finders Fees	30
4.8	Disclosure	30

ARTICLE 5 COVENANTS AND AGREEMENTS		30
5.1	Access	30
5.2	Operation of the Business by Seller	30
5.3	Conduct Prior to Closing	31
5.4	Confidentiality	32
5.5	Use of Confidential Information	32
5.6	Covenant Not to Compete or Solicit	33
5.7	No Solicitation	34
5.8	Notification of Certain Matters	35
5.9	New Employment Arrangements	35
5.10	Public Disclosure	36
5.11	Consents	36
5.12	Benefits Liabilities	36
5.13	COBRA Continuation Coverage	36
5.14	Protection of Seller Creditors	37
5.15	Registration Statement	37
5.16	Meeting of Sellers Stockholders	38
5.17	Commercially Reasonable Efforts	39
5.18	Additional Documents and Further Assurances	39
5.19	Change of Control Agreements	39
5.20	Post Closing Tax Covenants	40
5.21	Employee Withholding	40
5.22	Restrictions on Resale or Distribution of Stock Consideration	40
5.23	Payables	41
5.24	Change of Name; Use of Name	41
5.25	Performance Under Loan Facility	41
5.26	Insurance	41
5.27	Asvan Payments	41
5.28	Supplemental Transferred Contracts	41

ARTICLE 6 CONDITIONS TO THE CLOSING		42
6.1	Conditions to Obligations of Each Party	42
6.2	Additional Conditions to the Obligations of Buyer	42
6.3	Additional Conditions to Obligations of Seller	44

ARTICLE 7 SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION		45
7.1	Survival of Representations, Warranties and Covenants	45
7.2	Indemnification	45
7.3	Indemnification Procedure	46
7.4	Resolution of Conflicts; Arbitration	46
7.5	Third-Party Claims	47
7.6	Maximum Payments; Remedy	47
7.7	Security for Seller Indemnification Obligations	49

ARTICLE 8 TERMINATION, AMENDMENT AND WAIVER		49
8.1	Termination	49

TABLE OF CONTENTS

(continued)

		Page
8.2	Effect of Termination	50

ARTICLE 9 GENERAL		51
9.1	Notices	51
9.2	Amendment	51
9.3	Extension; Waiver	51
9.4	Entire Agreement; Assignment	52
9.5	Severability	52
9.6	Other Remedies	52
9.7	Governing Law	52
9.8	Jurisdiction and Venue	52
9.9	Waiver of Jury Trial	52
9.10	Fees and Expenses	52
9.11	Counterparts	53

iii

EXHIBITS

Exhibit A

Form of Non-Competition Agreement

Exhibit B

Form of Support Agreement

Exhibit C

Form of Assignment and Assumption Agreement

Exhibit D

Form of Bill of Sale

Exhibit E

Form of Real Property Sublease

ASSET PURCHASE AGREEMENT

THIS ASSET PURCHASE AGREEMENT (the Agreement), is made and entered into as of December 2, 2002, by and among Sirenza Microdevices, Inc., a Delaware corporation (Parent), Olin Acquisition Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent (Buyer), and Vari-L Company, Inc., a Colorado corporation (Seller).

RECITALS

A. Parent and Buyer desire to cause Buyer to purchase from Seller, and Seller desires to sell to Buyer, the Acquired Assets (as defined below), in exchange for shares of the common stock of Parent, the assumption of certain specified Assumed Liabilities (as defined below) and the other consideration set forth below.

B. Concurrently with the execution and delivery of this Agreement, as a material inducement to Parent and Buyer to enter into this Agreement, the Key Employees (as defined below) of Seller are entering into non-competition agreements substantially in the form attached hereto as Exhibit A (the Non-Competition Agreements) with Parent, each of which shall become effective as of the Closing Date (as defined below).

C. Concurrently with the execution and delivery of this Agreement, as a material inducement to Parent and Buyer to enter into this Agreement, certain affiliate stockholders of Seller are executing and delivering stockholder support agreements (the Support Agreements), substantially in the form attached hereto as Exhibit B, to Buyer.

NOW, THEREFORE, in consideration of the covenants, representations, warranties and mutual agreements set forth herein, and for other good and valuable consideration, intending to be legally bound hereby, the parties hereto agree as follows:

ARTICLE 1

DEFINITIONS

1.1 Capitalized Terms. The following capitalized terms shall have the meanings set forth below:

(a) Accrued Vacation Pay shall mean any accrued holiday, vacation and sick pay payable incurred by Seller included in account 2001-244 (Accrued Holiday/Vacation/Sick Pay) on the Seller Balance Sheet or Sellers Books and Records to the extent such accrued holiday, vacation and sick pay has been included therein in conformity with GAAP applied on a basis consistent with the Reference Balance Sheet.

(b) Acquired Assets shall have the meaning set forth in Section 2.1.

(d) Agreement means this Asset Purchase Agreement together with all exhibits and schedules hereto.

(e) Allocation shall have the meaning set forth in Section 2.7.

(f) Assignment and Assumption Agreement shall mean the Assignment and Assumption Agreement by and between Buyer and Seller in substantially the form attached hereto as Exhibit C.

(g) Assumed Liabilities shall have the meaning set forth in Section 2.2.

(h) Benefits Liabilities means any and all claims, debts, liabilities, commitment and obligations, whether fixed, contingent or absolute, matured or unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown, whenever or however arising, including all costs and expenses relating thereto, and including those debts, liabilities and obligations arising under law, rule, regulation, permits, action or proceeding before any Governmental Entity, order or consent decree or any award of any arbitrator of any kind relating to any Employee Plan, International Employee Plan, Employment Agreement or otherwise to an Employee (other than Accrued Vacation Pay).

(i) Bill of Sale shall mean the Bill of Sale to be delivered by Seller to Buyer at the Closing in the form attached hereto as Exhibit D.

(j) Books and Records means all papers and records (in paper or electronic format) of the Seller or otherwise in Sellers care, custody, or control relating to the Acquired Assets or the Business including, without limitation, all purchasing and sales records, customer and vendor lists, accounting and financial records, product documentation, product specifications, and marketing requirement documents.

(k) Business means the design, manufacture and marketing of radio frequency and microwave components and devices for use in commercial and military/aerospace wireless communications applications, including wireless telecommunications networks, wireless base stations, wireless point-to-point radio systems, wireless point-to-multi-point radio systems, wireless local area networks, satellite payload, test equipment (instrumentation) and ground communications, radar systems, weapons guidance systems and advanced telemetry systems, in each case as conducted or proposed to be conducted by Seller.

(l) Cash Consideration means the product of (i) the difference between (A) the Dollar Value and (B) the Loan Facility Indebtedness and (ii) 0.45.

(m) Closing shall have the meaning set forth in Section 2.5.

(n) Closing Balance Sheet shall mean the balance sheet of Seller as of the Closing Date, to be prepared pursuant to Section 2.6(b).

(o) Closing Date shall have the meaning set forth in Section 2.5.

(p) COBRA means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.

(q) Code shall mean the Internal Revenue Code of 1986, as amended.

(r) Collateral Agreements shall have the meaning set forth in Section 2.5.

(s) Conflict means any event that would constitute a conflict, breach, violation or default (with or without notice or lapse of time, or both) or give rise to a right of termination, cancellation, modification or acceleration of any obligation or loss of any benefit.

(t) Continuing Employees shall have the meaning set forth in Section 5.9.

(u) Contract means any mortgage, indenture, lease (including the Lease Agreements), sublease, contract, covenant or other agreement, instrument or commitment, permit, concession, franchise or license.

(v) Custom Products means (i) those products of Seller listed on Schedule 1.1(v), which have been created or customized by Seller pursuant to specifications developed by or in collaboration with its customers and Distributors; (ii) those products under development by Seller listed on Schedule 1.1(v), which are being created or customized by Seller pursuant to specifications developed by or in collaboration with its customers and Distributors; and (iii) all documentation and training materials with respect to any of the items identified in clauses (i) and (ii) herein

(w) Derivative Work has the meaning ascribed to it under the United States Copyright Law, Title 17 U.S.C. Sec. 101 et. seq., as the same may be amended from time to time.

(x) Designated Amount means $25,000.

(y) Designated Employees means those employees of Seller listed on Schedule 1.1(y) hereto.

(z) Discontinued Product means any product that has been sold by Seller which either (i) is listed on the excess and obsolete list kept by Seller as part of its Books and Records, or (ii) has not been shipped by Seller for commercial sale during the eighteen (18) months immediately preceding the date of this Agreement, including, without limitation, the products listed on Schedule 1.1(z).

(aa) Distributor shall have the meaning set forth in Section 3.12.

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