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Title: |
Asset Purchase Agreement |
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Entities: |
InterDigital Communications Corp.; Silicon Valley Bank; Pepper Hamilton LLP |
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Date: |
2003 |
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Size: |
Preview shows 44KB of 117KB total |
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Price: |
$56 |
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ID: |
#656285 |
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ASSET PURCHASE AGREEMENT
BETWEEN
INTERDIGITAL ACQUISITION CORP.,
AS BUYER
AND
TANTIVY COMMUNICATIONS, INC.,
AS SELLER
DATED AS OF JULY 30, 2003
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS |
1 | |
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ARTICLE II PURCHASE AND SALE OF ASSETS AND PURCHASE PRICE |
1 | |
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Section 2.01 Purchase |
1 | |
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Section 2.02 Purchase Price |
2 | |
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Section 2.03 Internal Revenue Form 8594 |
3 | |
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ARTICLE III CLOSING |
3 | |
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Section 3.01 Time and Place |
3 | |
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Section 3.02 Deliveries by Seller to Buyer |
3 | |
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Section 3.03 Deliveries by Buyer to Seller |
5 | |
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Section 3.04 Non-Assignable Contracts or Permits |
6 | |
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER |
6 | |
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Section 4.01 Organization; Good Standing |
6 | |
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Section 4.02 Authority; Capacity; Enforceability |
6 | |
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Section 4.03 No Violation |
7 | |
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Section 4.04 Required Consents |
7 | |
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Section 4.05 Title to Properties |
7 | |
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Section 4.06 Condition of Assets |
8 | |
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Section 4.07 Completeness of Assets Transferred |
8 | |
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Section 4.08 Financial Statements |
8 | |
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Section 4.09 Litigation |
8 | |
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Section 4.10 Contracts and Commitments |
8 | |
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Section 4.11 Compliance with Law |
9 | |
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Section 4.12 Employees |
9 | |
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Section 4.13 Employee Agreements and Benefit Plans |
10 | |
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Section 4.14 Absence of Certain Changes, Events or Conditions |
10 | |
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Section 4.15 Taxes |
11 | |
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Section 4.16 Intellectual Property |
11 | |
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Section 4.17 Accounts Receivable; Customer Relationships; Vendor Relationships |
12 | |
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Section 4.18 Powers of Attorney |
13 | |
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Section 4.19 Product Warranties and Liabilities |
13 | |
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Section 4.20 Brokers? Fees |
14 | |
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Section 4.21 No Undisclosed Liabilities |
14 | |
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Section 4.22 No Material Misstatements/Omissions |
14 | |
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Section 4.23 Solvency |
14 | |
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Section 4.24 Anechoic Chamber |
14 | |
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ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER |
14 | |
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Section 5.01 Organization and Standing |
14 | |
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Section 5.02 Corporate Authority |
14 | |
i
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Section 5.03 No Violation |
15 | |
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Section 5.04 Broker?s Fees |
15 | |
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ARTICLE VI CERTAIN ADDITIONAL AGREEMENTS AND COVENANTS OF THE PARTIES |
15 | |
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Section 6.01 Public Announcements |
15 | |
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Section 6.02 Bulk Sales Laws |
15 | |
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Section 6.03 Items Received after Effective Time |
15 | |
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Section 6.04 Access to Records |
15 | |
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Section 6.05 Further Assurances |
16 | |
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Section 6.06 Expenses; Sales and Other Transfer Taxes |
16 | |
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Section 6.07 Tax Matters; Financial and Other Reports |
16 | |
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Section 6.08 Post-Closing Covenants |
17 | |
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ARTICLE VII INDEMNITY |
19 | |
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Section 7.01 Indemnity by Seller |
19 | |
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Section 7.02 Indemnity by Buyer |
19 | |
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Section 7.03 Limitations |
20 | |
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Section 7.04 Indemnity Procedures |
20 | |
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Section 7.05 Characterization of Indemnity Payments |
21 | |
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ARTICLE VIII MISCELLANEOUS |
21 | |
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Section 8.01 Assignment; No Third-Party Rights |
21 | |
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Section 8.02 Entire Agreement |
22 | |
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Section 8.03 Section and Other Headings; Number |
22 | |
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Section 8.04 Notices |
22 | |
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Section 8.05 Severability |
23 | |
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Section 8.06 Amendment; Waiver, etc |
23 | |
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Section 8.07 Law Governing |
23 | |
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Section 8.08 Jurisdiction; Service of Process |
23 | |
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Section 8.09 Counterparts; Facsimile Signatures |
24 | |
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Section 8.10 Specific Performance |
24 | |
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Section 8.11 Construction |
24 | |
ii
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EXHIBITS: |
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Exhibit A |
Intentionally Omitted |
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Exhibit B |
Form of Bill of Sale |
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Exhibit C |
Form of Assignment and Assumption Agreement |
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Exhibit D |
Form of Intellectual Property Right Assignment |
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Exhibit E |
Form of Seller?s Legal Opinion |
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Exhibit F |
Form of Non-Competition and Confidentiality Agreement |
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Exhibit G |
Form of Non-Disclosure and Assignment of Ideas Agreement |
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Exhibit H |
Form of Offer Letter and Form of Consulting Agreement |
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Exhibit I |
Form of Lease Agreement |
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Exhibit J |
Form of Escrow Agreement |
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SCHEDULES: |
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Schedule 1 |
Definitions |
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Schedule 2 |
Disclosure Schedule |
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Schedule 3 |
Financial Statements |
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Schedule 4 |
Certain Excluded Assets |
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Schedule 5 |
Assumed Contracts |
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Schedule 6 |
802.11 Patents and Smart Antenna Patents |
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iii
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made and entered into as of July 30, 2003, by and between Buyer and Seller.
Recitals
A. Seller is engaged primarily in the Business. While engaging in the Business, Seller has developed a portfolio of technologies, which includes, but is not limited to, innovations for all emerging mobile wireless data standards including 3GPP WCDMA, 3GPP2 CDMA2000, IEEE 802.11, and ANISI T1.723-2002 I-CDMA. These innovations include subscriber-based smart antenna solutions and are based on antenna and steering algorithm technology. While engaging in the Business, Seller also has developed a field proven, full IP-based, end-to-end solution, (based on its I-CDMA technology, which is Committee T1 approved as ANSI Standard T1.723-2002) that enables portable, wireless broadband Internet access.
B. The parent of Buyer engages in the architecture, design, and delivery of advanced wireless technology and product platforms.
C. Upon the terms and conditions of this Agreement, Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, the Acquired Assets (as hereinafter defined).
Agreement
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
For the purpose of this Agreement, any amendments hereto and any Exhibit attached hereto or Schedule described herein, and in addition to terms defined elsewhere herein, capitalized terms used in this Agreement shall have the meanings set forth on Schedule 1 attached hereto.
ARTICLE II
PURCHASE AND SALE OF ASSETS AND PURCHASE PRICE
Section 2.01 Purchase. Subject to the terms and conditions of this Agreement, at the Closing, Seller shall sell, convey, assign, transfer and deliver to Buyer, and Buyer shall purchase and acquire from Seller, the Acquired Assets free and clear of all Encumbrances (other than Permitted Encumbrances), and Buyer shall pay the Purchase Price, all as of the Effective Time.
Notwithstanding anything to contrary contained herein, the Buyer will not assume any liabilities of the Seller, other than for obligations under the Assumed Contracts arising after the Closing.
Section 2.02 Purchase Price.
(a) The purchase price of the Acquired Assets shall consist of the Initial Purchase Price plus a contingent purchase price as described herein, in each case subject to reduction in accordance with the escrow and indemnification provisions contained herein. On the Closing Date, the Initial Purchase Price shall be payable as follows:
(i) Buyer shall pay to Seller an aggregate amount equal to Nine Million Two Hundred Thousand Dollars ($9,200,000) minus the total outstanding principal and interest on the Notes calculated as of the Closing Date, in immediately available funds; and
(ii) Buyer shall deposit in escrow the Escrow Amount to be held and dispersed in accordance with the terms of the Escrow Agreement.
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