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Title: |
Asset Purchase Agreement |
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Date: |
2001 |
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Preview shows 20KB of 117KB total |
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$52 |
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#639258 |
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ASSET PURCHASE AGREEMENT
BETWEEN
METAWAVE COMMUNICATIONS CORPORATION
and
VIASYSTEMS, INC.
____________________
Dated as of April 1, 2001
____________________
ARTICLE I
Purchase of Manufacturing Assets
1.1 Purchase and Sale of Manufacturing Assets. 1
1.2 Excluded Assets. 2
1.3 Nonassignable Contracts or Permits. 3
ARTICLE II
Assumption of Liabilities
2.1 Assumed Liabilities. 3
ARTICLE III
Purchase Price
3.1 Purchase Price. 4
3.2 Allocation of Purchase Price. 4
3.3 Physical Inventory. 4
3.4 Put Right in Respect of Inventory. 5
ARTICLE IV
Closing
4.1 Closing Date. 5
4.2 Proceedings at Closing 5
ARTICLE V
Representations and Warranties of Seller
5.1 Organization and Power. 6
5.2 Authorization. 6
5.3 No Conflicts. 6
5.4 Consents and Approvals 6
5.5 No Third-Party Options 7
5.6 Legal Compliance. 7
5.7 Litigation; Orders. 7
5.8 Permits. 7
5.9 Financial Statements. 7
5.10 Inventory. 8
5.11 Absence of Changes. 8
5.12 Title to Manufacturing Assets. 8
5.13 Sufficiency and Condition of Manufacturing Assets. 8
5.14 Intellectual Property. 8
5.15 Real Property. 9
5.16 Environmental Matters. 9
5.17 Benefit Plans. 10
5.18 Labor and Employment Matters. 10
5.19 Disclosure. 10
5.20 No Other Representations. 11
ARTICLE VI
Representations and Warranties of Purchaser
6.1 Organization and Power. 11
6.2 Authorization. 11
6.3 No Conflicts. 11
6.4 Consents and Approvals 12
6.5 Financial Condition 12
6.6 Disclosure 12
ARTICLE VII
Pre-Closing Covenants
7.1 Access. 12
7.2 Conduct of the Manufacturing Operations. 12
7.3 Notifications. 13
7.4 Governmental Filings. 13
7.5 Injunctions. 13
7.6 Satisfaction of Conditions. 13
7.7 Confidentiality. 14
ARTICLE VIII
Conditions to Closing
8.1 Conditions Precedent to Obligations of Purchaser and
Seller. 14
8.2 Additional Conditions Precedent to Obligations of
Purchaser. 14
8.3 Additional Conditions Precedent to Obligations of
Seller. 14
ARTICLE IX
Closing Deliveries
9.1 Seller's Deliveries. 15
9.2 Purchaser's Deliveries. 15
ARTICLE X
Post-Closing Covenants
10.1 Discharge of Business Obligations 16
10.2 Payments Received 16
10.3 Maintenance of Books and Records 16
10.4 Transfer Taxes 17
10.5 Employee and Employee Benefits Plans 17
10.6 Repurchase Rights 18
10.7 Sale of Taiwan Manufacturing Facilities 18
10.8 Release of Liens 19
ARTICLE XI
Survival and Indemnification
11.1 Survival of Representations and Warranties. 19
11.2 Limitations of Liability. 19
11.3 Indemnification. 20
11.4 Defense of Claims. 20
11.5 Exclusive Remedy. 22
ARTICLE XII
Termination
12.1 Termination. 22
12.2 Effect of Termination. 22
ARTICLE XIII
Miscellaneous Provisions
13.1 Amendments 22
13.2 Assignment 23
13.3 Binding Effect 23
13.4 Construction 23
13.5 Counterparts 23
13.6 Entire Agreement 23
13.7 Expenses 23
13.8 Finder's Fee, etc. 24
13.9 Further Assurances. 24
13.10 Governing Law 24
13.11 Headings 24
13.12 Jurisdiction 24
13.13 Notices 24
13.14 Passage of Title; Risk of Loss. 25
13.15 Press Releases 25
13.16 Severability 26
13.17 Third-Party Beneficiaries 26
13.18 Waiver 26
EXHIBITS AND SCHEDULES
Exhibit A Manufacturing Agreement
Exhibit B Form of Promissory Note
Exhibit C Sublease
Exhibit D-1 Transition Services Agreement
Exhibit D-2 Transition Services Agreement
Schedule 1.1(a) Tangible Personal Property
Schedule 1.1(b) Inventories
Schedule 1.1(c) Contracts
Schedule 1.1(d) Permits
Schedule 2.1 Assumed Liabilities
Schedule 5.3 No Conflicts
Schedule 5.4 Consents and Approvals
Schedule 5.7 Litigation; Orders
Schedule 5.9 Financial Statements
Schedule 5.10 Inventory
Schedule 5.11 Absence of Changes
Schedule 5.12 Title to Manufacturing Assets
Schedule 5.14 Intellectual Property
Schedule 5.15 Real Property Leases
Schedule 5.16 Environmental Matters
Schedule 5.17 Benefit Plans
Schedule 5.18 Labor and Employment Matters
Schedule 6.4 Consent and Approvals
Schedule 7.2 Conduct of Manufacturing Operations
Schedule 10.5(e) Stock Options
GLOSSARY OF DEFINED TERMS
"Accountants" Section 3.3
"affiliate" Section 13.4
"Agreed Allocation" Section 3.2
"Agreement" preamble
"Asset Value" Section 3.3
"Assumed Liabilities" Section 2.1
"Benefit Plan" Section 5.17
"Cessation of Business" Section 10.6
"Closing" Section 4.1
"Closing Date" Section 4.1
"Closing Statement" Section 3.3
"COBRA" Section 10.5(b)
"Code" Section 3.2
"Contracts" Section 1.1(c)
"Default" Section 5.3
"Direct Claim" Section 11.4(d)
"Employee" Section 5.17
"Environmental Laws" Section 5.16
"Environmental Permits" Section 5.16
"ERISA" Section 5.17
"Excess Inventory" Section 3.4(a)
"Excess Inventory Determination Date" Section 3.4(a)
"Excluded Assets" Section 1.2
"Facility" recitals
"Financial Statements" Section 5.9
"Former Employee" Section 5.17
"GAAP" Section 5.9
"Governmental Entity" Section 5.3
"Historical Statements of Assets" Section 5.9
"Indemnifiable Losses" Section 11.2(a)
"Indemnifying Party" Section 11.2(a)
"Indemnitee" Section 11.2(a)
"Indemnity Payment" Section 11.2(a)
"Intellectual Property" Section 5.14
"Inventories" Section 1.1(b)
"Inventory Purchase Price" Section 3.1
"Law" Section 5.3
"Liens" Section 5.12
"Manufacturing Agreement" recitals
"Manufacturing Assets" Section 1.1
"Manufacturing Cost Statements" Section 5.9
"Manufacturing Operations" recitals
"Metawave Taiwan" Section 10.7
"Note" Section 3.1
"Order" Section 5.3
"P&L Statements" Section 5.9
"Permits" Section 1.1(d)
"Permitted Liens" Section 5.12
"person" Section 13.4
"Purchase Price" Section 3.1
"Purchaser" preamble
"Purchaser Documents" Section 6.2
"Purchaser's Notice" Section 10.6
"Real Property" Section 5.15(a)
"Real Property Leases" Section 5.15(a)
"Seller" preamble
"Seller Documents" Section 5.2
"Seller's Notice" Section 10.6
"Software" Section 1.1(c)
"Statement of Assets" Section 5.9
"Statement of Assets Date" Section 5.9
"Taiwan Manufacturing Assets" Section 10.7
"Taiwan Permits" Section 10.7
"Taiwan Purchase Agreement" Section 10.7
"Tangible Personal Property" Section 1.1(a)
"Third Party Claim" Section 11.2(a)
"TPP Purchase Price" Section 3.1
"Transfer Documents" Section 9.1(a)
"Unadjusted Purchase Price" Section 3.1
"Viasystems Taiwan" Section 10.7
"WARN Act" Section 10.5(b)
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made as
of April 1, 2001, between Metawave Communications Corporation, a
Delaware corporation ("Seller"), and Viasystems, Inc., a Delaware
corporation ("Purchaser").
WHEREAS, Seller currently conducts manufacturing operations
("Manufacturing Operations") to manufacture smart antennas for
the wireless communications industry designed and marketed by
Seller at its facility located in Redmond, Washington (the
"Facility");
WHEREAS, on the terms and subject to the conditions set
forth herein, Seller desires to sell, transfer, and assign to
Purchaser, and Purchaser desires to acquire and purchase from
Seller, all of the Manufacturing Assets;
WHEREAS, on the terms and subject to the conditions set
forth herein, Seller desires to assign to Purchaser, and
Purchaser desires to assume, the Assumed Liabilities; and
WHEREAS, as a condition precedent to the consummation of the
transactions contemplated by this Agreement, each of Purchaser
and Seller desire to execute and deliver a Manufacturing
Agreement in substantially the form of Exhibit A ("Manufacturing
Agreement").
NOW, THEREFORE, in consideration of the foregoing recitals
and the representations, warranties, covenants, and agreements
herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
Purchase of Manufacturing Assets
1.1 Purchase and Sale of Manufacturing Assets. On the
terms and subject to the conditions set forth herein, at the
Closing, Seller will sell, transfer, convey, assign, and deliver
to Purchaser, and Purchaser will purchase and accept, all right,
title, and interest of Seller in and to the rights, assets, and
properties of the Manufacturing Operations specified in this
Section 1.1 (collectively, the "Manufacturing Assets"):
(a) Tangible Personal Property. All machinery and
equipment, tools, artwork, test equipment, spare and
maintenance parts, furniture, fixtures, jigs, dies, office
equipment, vehicles, and all other tangible personal
property of the Manufacturing Operations owned by Seller and
located at the Facility (subject to any exceptions listed on
Schedule 1.1(a)) as of the Closing, and all other tangible
personal property owned by Seller as of the Closing listed
on Schedule 1.1(a) (collectively, the "Tangible Personal
Property");
(b) Inventories, Stores, and Supplies. All raw
materials, components, packaging materials, stores and
supplies, and samples (collectively, "Inventories") located
at the Facility (subject to any exceptions listed on
Schedule 1.1(b)) and all other Inventories listed on
Schedule 1.1(b);
(c) Contract Rights. Subject to Section 1.3, all
rights and incidents of interest of Seller as of the Closing
in and to all supply agreements, commitments, orders,
leases, software licenses (the "Software"), and other
contracts and legally binding contractual rights and
obligations that are necessary to operate the Manufacturing
Operations, in each case as listed on Schedule 1.1(c)
(collectively, "Contracts");
(d) Governmental Licenses, Permits, and
Approvals. Subject to Section 1.3 and except for Seller's
license to do business from the city of Redmond, Washington,
all rights and incidents of interest in and to all licenses,
permits, franchises, authorizations, orders, registrations,
certificates, variances, approvals, and similar rights
issued to Seller by any Governmental Entity that are
necessary to operate the Manufacturing Operations, as listed
on Schedule 1.1(d) (collectively, "Permits"); and
(e) Books and Records.
(i) All books, records, reports, documents, and
files of Seller relating exclusively or principally to
the Manufacturing Operations, in original or copy form,
including purchase and sales records, accounting and
financial data, property records, manufacturing
records, product engineering, and drawings that are
necessary to operate the Manufacturing Operations
(provided, however, that extracts pertaining only to
the Manufacturing Operations will be furnished to
Purchaser where such records also reflect other aspects
of Seller's businesses); and
(ii) All records of Seller relating to the
employment of all former Employees of Seller who have
accepted employment with Purchaser.
1.2 Excluded Assets. Notwithstanding any other provision
of this Agreement to the contrary, the following rights,
properties, and assets (collectively, the "Excluded Assets") will
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