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Title: |
Asset Purchase Agreement |
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Date: |
2007 |
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Preview shows 13KB of 175KB total |
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$46 |
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ID: |
#2842954 |
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is made and entered into as of this 23rd
day of April, 2007, by and among Lyman Bros., Inc., a Utah corporation (the
"Parent"), GlobalSat, LLC, a Delaware limited liability company and a
wholly-owned subsidiary of the Parent (the "Seller"), Globecomm Systems Inc., a
Delaware corporation (the "Buyer"), and Snowbird Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of the Buyer (the "Buyer Subsidiary").
The Seller and the Parent are from time to time collectively referred to herein
as the "Seller Parties", and the Buyer and the Buyer Subsidiary are from time to
time collectively referred to herein as the "Buyer Parties."
WHEREAS, the Seller Parties own all right, title, and interest in and
to the Acquired Assets (as defined below); and
WHEREAS, the Seller Parties desire to sell, assign, grant, convey and
transfer the Acquired Assets, and all right, title and interest therein, to the
Buyer Subsidiary, and the Buyer Subsidiary desires to buy and acquire the
Acquired Assets, and all right, title and interest therein, in accordance with
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each party, the
parties, intending legally to be bound, agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth in this Article I:
"Acquired Assets" has the meaning assigned to it in Section 2.1.
"Adjusted Net Purchase Price" has the meaning assigned to it in
Section 3.1.
"Adjustment" has the meaning assigned to it in Section 3.2.2.
"Adjustment Account" has the meaning assigned to it in Section 3.1.1.
"Affiliate" means, with respect to a specified Person, any other
Person (i) which controls, is controlled by or is under common control with such
specified Person or (ii) which beneficially owns 10% or more of the equity
securities of such specified Person or (iii) of which such specified Person
beneficially owns 10% or more of the equity securities. For purposes of the
definition of Affiliate, the term "beneficially owns" means possesses, directly
or indirectly, the power to vote (or direct the voting of) or dispose of (or
direct the disposition of) an equity security. For purposes of the definition of
Affiliate, the term "control" (including the terms "controls", "controlled by"
and "under common control with") means the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agreement" means this Agreement and all Exhibits and Schedules
annexed hereto, as the same may be amended, modified or supplemented from time
to time.
"Allocation" has the meaning assigned to it in Section 3.3.
"Assignment and Assumption Agreement" means the Assignment and
Assumption Agreement annexed hereto as Exhibit A, pursuant to which the Buyer
Subsidiary shall assume the Assumed Liabilities in accordance with the
provisions hereof.
"Assumed Liabilities" means (i) all liabilities set forth on the face
of the Balance Sheet, (ii) all obligations of the Parent and Subject Companies,
as applicable, under the contracts, leases, licenses or other arrangements
included in the Acquired Assets, and (iii) all liabilities of the Parent or the
Subject Companies as specified on Schedule 1.1(a). Except as otherwise expressly
stated in the preceding sentence, under no circumstances shall Assumed
Liabilities include any debt, liability (whether absolute, accrued, contingent
or otherwise) or other obligation of or owing by the Parent of Subject
Companies.
"Balance Sheet" has the meaning assigned to it in Section 4.22(a).
"Bankruptcy Event" has the meaning assigned to it in Section 6.3.
"Basket Amount" has the meaning assigned to it in Section 9.5.1.
"Bill of Sale" means the Bill of Sale and Assignment annexed hereto as
Exhibit B, sufficient to vest the Buyer Subsidiary with title in and to the
Acquired Assets free and clear of all debts, Taxes, claims, options,
liabilities, obligations and Liens (whether matured or unmatured), other than
Permitted Liens.
"British Telecom Services" has the meaning assigned to it in the
definition of "Excluded Liabilities" in this Article I.
"Business" means the business of the Subject Companies as conducted as
of the date hereof, including without limitation, the Subject Company Business.
"Buyer Indemnified Parties" has the meaning assigned to it in Section
9.2.
"Buyer Material Adverse Effect" means any material adverse effect on
the operations, assets, condition (financial or otherwise), liabilities, results
of operations or prospects of the Buyer's business as conducted as of the date
hereof.
"Buyer Parties" has the meaning assigned to it in the preamble.
"Buyer Party Confidential Information" means all trade secrets,
know-how, customer lists, technical information, proprietary information,
technologies, processes and formulae, source code, algorithms, architecture,
structure, display screens and development tools, data, plans and drawings and
blue prints, whether tangible or intangible and whether or how stored, compiled,
or memorialized physically, electronically, photographically, or otherwise,
owned, used or licensed by Buyer Parties as licensee or licensor and that have
been used or are used in or are material to the conduct of the business of the
Buyer Parties as of the Closing Date.
"Buyer Subsidiary" has the meaning assigned to it in the preamble.
"CEIPA" has the meaning assigned to it in Section 4.27.
"Classified Information" has the meaning assigned to it in Section
4.12(p).
"Clients" has the meaning assigned to it in Section 4.9.
-2-
"Closing" has the meaning assigned to it in Section 3.4.
"Closing Amount" means the Modified Current Asset Amount plus the
Modified Working Capital Amount.
"Closing Date" means the date of the Closing.
"Closing Statement" has the meaning assigned to it in Section 3.2.1.
"Closing Statement Documentation" has the meaning assigned to it in
Section 3.2.1.
"Closing Working Capital Adjustment Amount" means the applicable
working capital adjustment determined as set forth on Schedule 1.1(b).
"Co-Employment Agreement" has the meaning assigned to it in Section
8.2(m).
"Code" means the Internal Revenue Code of 1986, as amended.
"Contracts" has the meaning assigned to it in Section 4.10.
"Controlled Technology" has the meaning assigned to it in Section
4.27.
"Conveyance Documents" has the meaning assigned to it in Section 2.2.
"Copyrights" has the meaning assigned to it in Section 4.12(a)(i).
"Dispute Notice" has the meaning assigned to it in Section 3.2.3.
"Dispute Resolution Period" has the meaning assigned to it in Section
3.2.4.
"Disputed Amounts" has the meaning assigned to it in Section 3.2.4.
"Domain Names" has the meaning assigned to it in Section 4.12(a)(iv).
"EAR" has the meaning assigned to it in Section 4.27.
"Employee Benefit Plan" has the meaning assigned to it in Section
4.16.
"Employment Agreement" has the meaning assigned to it in Section 6.5.
"Employer Parties" means the Seller Parties and WSI (with respect to
WSI, such definition extends to WSI only to the extent of employees leased by
WSI to Seller Parties pursuant to the Co-Employment Agreement).
"Environmental Laws" has the meaning assigned to it in Section 4.23.
"Environmental Liabilities" has the meaning assigned to it in Section
4.23.
"ERISA" means the Employee Retirement Income and Security Act of 1974,
as amended.
"ERISA Affiliate" has the meaning assigned to it in Section 4.16(d)
-3-
"Escrow Agent" has the meaning assigned to it in Section 3.1.1.
"Escrow Agreement" has the meaning assigned to it in Section 3.1.1.
"Escrow Amount" has the meaning assigned to it in Section 3.1.1.
"Excluded Assets" has the meaning assigned to it in Section 2.1.
"Excluded Liabilities" means any and all debts, liabilities (whether
absolute, accrued, contingent or otherwise) and other obligations of or owing by
the Seller and/or the Parent other than the Assumed Liabilities, including,
without limitation (i) any claims from British Telecommunications PLC ("British
Telecom") for payments related to collocation and uplinking services from
British Telecom's Cornwall, United Kingdom, facility (the "British Telecom
Services"), (ii) any claims from International Organization of Space
Communications ("Intersputnik") for payments related to that certain contract
between the Parent and Intersputnik for satellite space segment (the
"Intersputnik Contract"), including, without limitation any liabilities arising
from the termination of either the Intersputnik Contract or the British Telecom
Services and (iii) any and all Losses arising out of or relating to the
Co-Employment Agreement, including, without limitation, the acts or omissions of
the parties thereto.
"Expenses" has the meaning assigned to it in Section 9.8(b).
"FAR" has the meaning assigned to it in Section 4.12(f)(v).
"FCC" means the Federal Communications Commission.
"FCC Licensed Assets" means the satellite fixed earth stations and
fixed point to point microwave stations set forth on Schedule 1.1(c).
"FCC Licenses" means the licenses granted by the FCC authorizing the
operation of the FCC Licensed Assets.
"FCC Rules" means Title 47 of the Code of Federal Regulations, as
amended, and decisions of the Federal Communications Commission, policies,
reports and orders issued pursuant to the adoption of such regulations.
"Financial Adjustment Escrow Account" has the meaning assigned to it
in Section 3.1.1.
"Force Majeure Event" means any of the following: wars, terrorism,
riots or civil unrest, fires, storms, earthquakes, floods or elements of nature,
acts of government, acts of God or any other similar event beyond the reasonable
control of a party hereto.
"GAAP" means United States generally accepted accounting principles
applied on a consistent basis.
"Governmental Body" means any governmental or regulatory body, agency,
authority, commission, department, bureau, court, tribunal, public arbitrator or
arbitral body, or political subdivision, whether federal, state, local or
foreign.
"Hazardous Materials" has the meaning assigned to it in Section 4.23.
"Indemnified Party" has the meaning assigned to it in Section 9.4.
-4-
"Indemnifying Party" has the meaning assigned to it in Section 9.4.
"Indemnity Escrow Account" has the meaning assigned to it in Section
3.1.1.
"Intellectual Property" has the meaning assigned to it in Section
4.12(a).
"Intersputnik Contract" has the meaning assigned to it in the
definition of "Excluded Liabilities" in this Article I.
"Inventions" has the meaning assigned to it in Section 4.12(a)(vi).
"ITAR" has the meaning assigned to it in Section 4.27.
"JAMS" means Judicial Arbitration and Mediation Services, Inc.
"Know How" has the meaning assigned to it in Section 4.12(a)(vii).
"Knowledge" means, when referring to the "Knowledge" of the Seller
Parties, or any similar phrase or qualification based on knowledge, the actual
knowledge of Mathew J. Lyman, William Raney, Rodger Lyman, Jeffrey Lee, Owen
Hunsaker and Kelly Raney, after reasonable review by such persons.
"Laws" means, with respect to any Person, any foreign, federal, state
or local laws, statutes, ordinances, rules, regulations, orders, judgments or
decrees applicable to such Person, including, without limitation, the FCC Rules.
"LBISAT" means LBISAT, LLC, a Utah limited liability company and a
wholly-owned subsidiary of the Parent.
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