EXHIBIT - 2.2
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ASSET PURCHASE AGREEMENT
by and between:
AUSPEX SYSTEMS, INC.,
a Delaware corporation;
and
GLASSHOUSE TECHNOLOGIES, INC.,
a Delaware corporation
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Dated as of June __, 2003
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is entered into as of June ___,
2003, by and between AUSPEX SYSTEMS, INC., a Delaware corporation (the "Seller")
and GLASSHOUSE TECHNOLOGIES, INC., a Delaware corporation (the "Purchaser").
RECITALS
WHEREAS, the Seller has filed a voluntary petition (case no.
03-52596-mmll) for relief under Chapter 11 of Title 11 (the "Bankruptcy Case")
with the United States Bankruptcy Court for the Northern District of California,
San ▇▇▇▇ Division (the "Bankruptcy Court") under the United States Bankruptcy
Code, as amended from time to time (the "Bankruptcy Code"); and
WHEREAS, pursuant to the Bankruptcy Code and with the approval of the
Bankruptcy Court, the Seller wishes to provide for the sale of certain assets,
together with certain obligations and liabilities relating thereto, of the
Seller to the Purchaser (the "Transaction") on the terms set forth in this
Agreement.
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as
follows:
1. DEFINITIONS
1.1 AGREEMENT. "Agreement" shall mean this Asset Purchase
Agreement, as it may be amended from time to time.
1.2 ASSIGNED CONTRACT. "Assigned Contract" shall mean any
agreement, contract or other instrument listed on Schedule 1 attached hereto.
1.3 CUSTOMER SERVICE FIXED ASSETS. "Customer Service Fixed Assets"
shall mean the fixed assets set forth on Schedule 2 attached hereto to the
extent such fixed assets continue to be owned, controlled and possessed by the
Seller at Closing. However, Customer Service Fixed Assets shall not include any
Intellectual Property (including software) that has not been assumed by the
Seller and assigned to the Purchaser.
1.4 INTELLECTUAL PROPERTY. "Intellectual Property" shall mean all
intellectual property and related assets, including (i) telephone and telecopier
numbers, e-mail addresses and all internet domain names, (ii) all foreign and
domestic patents, patent rights, patent disclosures, and statutory invention
registrations, including all reissues, divisions, continuations, continuations
in part, extensions and reexaminations thereof, and all improvements thereto,
(iii) all service marks, tradenames, trade dress, all product names, all assumed
or fictitious names and the logos associated therewith, copyrights (whether
registered or unregistered), applications for and renewals of all of the
foregoing, (iv) other such property and intangible rights owned by the Seller,
including financial and marketing business data, pricing and cost information,
business and marketing plans and subject to applicable privacy laws, customer
and supplier lists, together with the goodwill associated with which such
trademarks, tradenames, product names and
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service marks, and (v) all computer software, including source code, object
code, comments, user interfaces, menus, buttons and icons, and all files, data,
manuals, design notes and other items and documentation related thereto and
associated therewith owned by the Seller.
1.5 LICENSE AGREEMENT. "License Agreement" shall mean that certain
License Agreement by and between the Purchaser and Network Appliance, Inc.,
dated as of ______, 2003, pursuant to which Network Appliance, Inc. agrees to
grant a non-exclusive limited use license under certain intellectual property.
1.6 PERSON. "Person" shall mean any individual, entity or
governmental body.
1.7 REPRESENTATIVES. "Representatives" shall mean officers,
directors, employees, agents, attorneys, accountants, advisors and
representatives.
1.8 SERVICE BUSINESS. "Service Business" shall mean the
maintenance and customer support business of the Seller for the maintenance of
its proprietary storage server products.
1.9 SPARE PARTS INVENTORY. "Spare Parts Inventory" shall mean the
inventory set forth in Schedule 3 attached hereto with such additions,
subtractions and modifications as may result from the conduct of the Seller's
business in the ordinary course prior to Closing.
2. SALE OF ASSETS; RELATED TRANSACTIONS.
2.1 SALE OF ASSETS. The Seller shall sell and transfer to the
Purchaser, and the Purchaser shall purchase from the Seller, at the Closing (as
defined below), subject to the terms and conditions set forth in this Agreement,
good and valid title to the following (the "Assets"):
(a) all of the Seller's rights and interests in and to,
as of the Closing Date (as defined below), all accounts receivable of the Seller
as of Closing, directly arising from the Assigned Contracts;
(b) all of the Seller's rights and interests in and to,
as of the Closing Date, the Assigned Contracts;
(C) all of the Seller's rights and interests in and to,
as of the Closing Date, the Customer Service Fixed Assets;
(d) all of the Seller's rights and interests in and to,
as of the Closing Date, the Spare Parts Inventory;
(e) Seller's rights and interests in and to the Seller's
name, logo and the trademarks and service marks related to the Service Business;
(f) Seller's rights and interests in and to 18003AUSPEX
support line and the ▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇.▇▇.▇▇ internet domain names
(including all content and data contain within these internet web sites relating
to the Service Business);
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(g) all right and title and interest in customer support
training materials and technical documentation used by the Seller in conducting
the Service Business; and
(h) copies of all of Seller's books, records, files and
data related to the Service Business, excluding books, records, files and data
which are attorney-client privileged or considered attorney work-product (the
"Books and Records").
2.2 EXCLUDED ASSETS. Notwithstanding anything to the contrary
contained in this Agreement, the Assets shall not include any assets, rights or
interests of the Seller other than the Assets specified in Section 2.1. For
clarity, the assets shall not include:
(a) all rights of the Seller under the Transactional
Agreements (as defined below);
(b) any Assigned Contracts to which the Seller is a party
or is otherwise bound if, after taking into account Section 365 of the
Bankruptcy Code, (i) a consent is required to be obtained from any Person in
order to permit the sale or transfer to the Purchaser of the Seller's rights
under such contract and (ii) such consent shall not have been obtained prior to
the Closing (the "Unassigned Contracts");
(c) all cash, cash equivalents (including deposits),
prepayments and securities owned by the Seller;
(d) all of the Seller's books, records, ledgers, files
and documents (except that the Purchaser may obtain copies of certain records
described in Section 2.1(h));
(e) the Seller's formal corporate records, including its
certificate of incorporation, bylaws, minute books, corporate books, stock
transfer records and other records having to do with the corporate organization
of the Seller;
(f) any Intellectual Property other than that
specifically described in Section 1.5 and Sections 2.1(e), (f) and (g);
(g) all insurance policies or benefits, including rights
and proceeds, arising from or relating to the Assets prior to the Closing Date;
(h) any tax attributes of the Seller, including, any net
operating loss carryovers and any right or claim for a tax refund attributable
to the operations or assets of the Seller, whether arising before, on or after
the Closing Date;
(i) all personnel records and other records that the
Seller is required by any law, rule or regulation to retain in its possession;
(j) any avoidance power causes of action under the
Sections 544-551 of the Bankruptcy Code;
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(k) the leased equipment that Transamerica Equipment
Financial Services asserts a protective lien over;
(l) all personal property assets of the Seller not
referenced in Section 2.1;
(m) any claims or causes of action of the Seller that
relate to or arise from any acts or omissions that may occur on or before the
Closing;
(n) any and all litigation that may be pending as of the
Closing; and
(o) all of the Seller's rights and interests in and to
the contracts, agreements and other instruments identified on Schedule 4 (the
"Excluded Contracts").
2.3 PURCHASE PRICE.
(a) As consideration for the sale of the Assets to the
Purchaser:
(i) at the Closing (as defined below), the
Purchaser shall pay to the Seller, by wire transfer of immediately
available funds pursuant to the wire instructions set forth in Schedule
5 attached hereto, a total of $280,000; and
(ii) at the Closing, the Purchaser shall assume
the Assumed Liabilities by delivering to the Seller an Assumption
Agreement in substantially the form of Exhibit A (the "Assumption
Agreement").
(b) For purposes of this Agreement "Assumed Liabilities"
shall mean the following obligations and other liabilities (whether known,
unknown, accrued, absolute, matured, unmatured, contingent or otherwise, and
whether arising before (only in the case of clauses (i) and (iv) below) or after
(in the case of clauses (i) through (v) below) the Closing) as they may exist at
and/or after the Closing: (i) all contractual obligations and liabilities of the
Seller under or relating to the Assigned Contracts; (ii) all obligations and
other liabilities of the Seller relating to any of the taxes, charges, fees and
expenses that the Purchaser is required to bear and pay pursuant to Section 2.4;
(iii) all costs and expenses related to the Purchaser's taking possession and
control of the Assets; (iv) any Cure Payments related to the Assigned Contracts;
and (v) each other obligation or other liability of the Seller relating to any
of the Assets.
(c) Notwithstanding the foregoing, the following
liabilities shall not be included in the Assumed Liabilities:
(i) all obligations of the Seller (whether
known, unknown, accrued, absolute, matured, unmatured, contingent or
otherwise, whether or not required to be reflected on a balance sheet,
whether or not incurred in the ordinary course of business and whether
or not arising prior to or after the Closing) that relate to the
Unassigned Contracts or the Excluded Contracts; and
(ii) all obligations of the Seller (whether
known, unknown, accrued, absolute, matured, unmatured, contingent or
otherwise, whether or not required to be
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reflected on a balance sheet, whether or not incurred in the ordinary
course of business and whether or not arising prior to or after the
Closing) that relate to warranty obligations arising from the sale of
products by the Seller, other than those warranty obligations set forth
in the Assigned Contracts, if any.
2.4 SALES TAXES. The Purchaser shall bear and pay, and shall
reimburse the Seller for, any sales taxes, use taxes, transfer taxes,
documentary charges, recording fees or similar taxes, charges, fees or expenses
that may become payable in connection with the sale of the Assets to the
Purchaser or in connection with (a) the execution and delivery of the Agreement
and the Assumption Agreement (the Agreement and the Assumption Agreement shall
collectively be referred to as the "Transactional Agreements"), and (b) all of
the transactions contemplated by the Transactional Agreements.
2.5 ALLOCATION. Within five days after the Closing, the Purchaser
shall deliver to the Seller a proposed statement setting forth the Purchaser's
good faith determination of the manner in which the consideration referred to in
Sections 2.3(a)(i) and 2.3(a)(ii) is to be allocated among the Assets (the
"Allocation"). Within 2 days after receipt of the Purchaser's proposed
statement, the Seller will deliver to Purchaser a notice setting forth any
proposed changes to such allocation, together with a reasonably detailed
explanation of the reasons for such proposed changes. The parties will negotiate
in good faith to resolve any disputed items, and if the parties are unable to
agree on the allocation within 10 days after delivery of such notice to
Purchaser, then the dispute will be arbitrated by a accounting firm of national
reputation mutually acceptable to the parties, whose determination will be
conclusive and binding upon the parties for tax purposes. The Allocation will be
conclusive and binding upon the parties for tax purposes, and neither party will
make any statement or declaration to any taxing authority that is inconsistent
with the Allocation.
2.6 CLOSING.
(a) The closing of the sale of the Assets to the
Purchaser (the "Closing") shall take place at the offices of Cooley Godward LLP
in Palo Alto, California, at 10:00 a.m. on the first business day after the
satisfaction or waiver of the conditions set forth in Sections 7 and 8, or
subject to the Bankruptcy Court, at such other date, place or time as may be
agreed to by the parties thereafter but in no event later than 12:00 p.m. on
June 30, 2003. For purposes of this Agreement, "Closing Date" shall mean the
time and date as of which the Closing actually takes place.
(b) At the Closing:
(i) the Purchaser shall pay to the Seller the
consideration set forth in Section 2.3(a)(i); and
(ii) the Purchaser shall execute and deliver to
the Seller the Assumption Agreement.
2.7 CURE PAYMENTS. The Seller agrees to use commercially
reasonable efforts to assign the Assigned Contracts to the Purchaser pursuant to
Section 365 of the Bankruptcy Code.
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All amounts and actions necessary to cure any defaults or arrearages under any
and all Assigned Contracts (other than Unassigned Contracts) as set forth hereto
on Schedule 6 (the "Cure Payments") shall be the responsibility of the
Purchaser.
2.8 ASSUMED LIABILITIES. From and after the Closing, the Purchaser
agrees to assume and discharge or perform when due the Assumed Liabilities.
2.9 GRANT-BACK LICENSE OF "AUSPEX" NAME AND LOGO. Effective
immediately after the Closing, the Purchaser hereby grants to the Seller a
non-exclusive license to use the name "Auspex" and the Seller's logo solely for
the purpose of completing the bankruptcy process.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER.
The Seller represents and warrants as follows:
3.1 DUE ORGANIZATION. The Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
3.2 AUTHORITY; BINDING NATURE OF AGREEMENTS. Assuming the Closing
takes place after the Sale Order (as defined in Section 10.2), Seller has all
necessary corporate power and authority to execute and deliver the Transactional
Agreements and to perform its obligations under the Transactional Agreements.
Assuming the Closing takes place after the Sale Order, this Agreement
constitutes, and, upon execution thereof, the Assumption Agreement will
constitute, the valid and binding obligations of the Seller, enforceable against
the Seller in accordance with their terms, subject to (i) laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
(ii) rules of law governing specific performance, injunctive relief and other
equitable remedies.
3.3 TITLE TO ASSETS. Assuming the Closing takes place after the
entry of the Sale Order, as of the Closing Date, the Seller will have good and
valid title to the Assets.
3.4 ASSIGNED CONTRACTS. Subject to (i) laws of general application
relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of
law governing specific performance, injunctive relief and other equitable
remedies, each Assigned Contract is valid and in full force and effect in
accordance with its terms, except where the invalidity or failure to be in full
force or effect arises from a default or arrearages to be cured by satisfaction
of a Cure Payment.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser represents and warrants, to and for the benefit of the
Seller, as follows:
4.1 DUE ORGANIZATION. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
4.2 AUTHORITY; BINDING NATURE OF AGREEMENTS. The Purchaser has all
necessary corporate power and authority to execute and deliver the Transactional
Agreements and to
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perform its obligations under the Transactional Agreements. Assuming the Closing
takes place after the Sale Order, this Agreement constitutes, and, upon
execution thereof, the Assumption Agreement will constitute, the valid and
binding obligations of the Purchaser, enforceable against the Purchaser in
accordance with their terms, subject to (i) laws of general application relating
to bankruptcy, insolvency and the relief of debtors and (ii) rules of law
governing specific performance, injunctive relief and other equitable remedies.
5. PRE-CLOSING COVENANTS OF THE SELLER.
5.1 ACCESS AND INVESTIGATION. During the period from the date of
this Agreement through the Closing Date (the "Pre-Closing Period"), the Seller
shall (a) after receiving reasonable advance notice from the Purchaser, give the
Purchaser reasonable access (during normal business hours) to the Books and
Records and (b) provide the Purchaser with such information regarding the Assets
and any other appropriate matters related to the Transactional Agreements as the
Purchaser may reasonably request, for the sole purpose of enabling the Purchaser
to further investigate the Assets and any other appropriate matters related to
the subject matter of the Transactional Agreements.
5.2 OPERATION OF BUSINESS. The Seller shall ensure that, during
the Pre-Closing Period, the Seller, subject to Bankruptcy Court jurisdiction:
(i) will not prematurely terminate or materially amend any of the Assigned
Contracts; (ii) will not commit a material breach of any Assigned Contract;
(iii) only with respect to the Spare Parts Inventory, will not change or modify
in any material respect existing inventory management and (iv) will use
commercially reasonable efforts to maintain good relations with the employees
and the parties to the Assigned Contracts.
5.3 CONDITIONS. The Seller will use commercially reasonable
efforts during the Pre-Closing Period to cause the conditions set forth in
Section 7 to be satisfied on a timely basis and otherwise to cause the Closing
to take place as soon as reasonably practicable.
5.4 BANKRUPTCY CASE. The Seller will use commercially reasonable
efforts to obtain the order described in Section 10.2.
5.5 CUSTOMER SERVICE FIXED ASSETS. The Seller will not sell,
transfer or otherwise dispose of Customer Service Fixed Assets prior to the
Closing other than in the ordinary course of the Seller's business.
6. PRE-CLOSING COVENANTS OF THE PURCHASER.
6.1 CONDITIONS. The Purchaser will use commercially reasonable
efforts during the Pre-Closing Period to cause the conditions set forth in
Section 8 to be satisfied on a timely basis and otherwise to cause the Closing
to take place as soon as reasonably practicable.
6.2 EMPLOYMENT OFFERS. Prior to the Closing, the Purchaser may
offer employment to none, some or all of the Seller's employees providing
services for the Service Business. Employees of the Seller immediately prior to
the Closing who accept such offers of employment (the "Transferred Employees")
shall be granted full credit for all employment with, or recognized by, the
Seller for purposes of eligibility, vesting and determining the amount of any
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benefit with respect to any paid time off program of the Purchaser, provided
that no Transferred Employee shall be credited with employment time which is
greater than the life of the Purchaser. Nothing in this Section 6.2 is intended
to create any claim or right against the Purchaser on the part of any employee
of the Seller, and no such employee shall be entitled to assert any claim or
right hereunder.
6.3 CURE PAYMENTS. Subject to the prior approval of the Bankruptcy
Court, the Purchaser will, on or prior to the Closing, make the Cure Payments
under any Assigned Contract in order that such Assigned Contract may be assigned
to and assumed by the Purchaser in accordance with the provisions of Section 365
of the Bankruptcy Code and this Agreement.
6.4 BANKRUPTCY CASE. The Purchaser will cooperate fully with the
Bankruptcy Court and with the Seller to expedite the Bankruptcy Case and to
obtain the order described in Section 10.2.
7. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATION TO CLOSE.
The Purchaser's obligation to purchase the Assets and to take the other
actions required to be taken by the Purchaser at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by the Purchaser, in whole or in part, in writing):
7.1 ACCURACY OF REPRESENTATIONS. All of the representations and
warranties made by the Seller in this Agreement (considered collectively), and
each of said representations and warranties (considered individually), shall
have been accurate in all material respects as of the date of this Agreement,
and shall be accurate in all material respects as of the Closing Date.
7.2 PERFORMANCE OF OBLIGATIONS.
(a) The Assumption Agreement shall have been executed by
each of the parties thereto and delivered to the Purchaser.
(b) All of the covenants and obligations that the Seller
are required to comply with or to perform at or prior to the Closing (considered
collectively), and each of said covenants and obligations (considered
individually), shall have been duly complied with and performed in all material
respects.
7.3 ▇▇▇▇ OF SALE; ETC. The Seller shall have executed and
delivered such ▇▇▇▇ of sale, assignments or other instruments in order to
evidence and effectuate the sale and transfer of the Assets to the Purchaser.
7.4 BANKRUPTCY CASE. The Bankruptcy Court shall have entered the
Sale Order (as defined in Section 10.2), which Sale Order shall not have been
reversed, rescinded, stayed, modified or amended prior to the Closing Date.
7.5 RESTRAINTS. No injunction or other order preventing the
consummation of the transactions contemplated by the Transactional Agreements
shall have been issued since the date
8.
of this Agreement by any United States federal or state court of competent
jurisdiction and shall remain in effect.
7.6 LICENSE AGREEMENT. The License Agreement, in a form reasonably
acceptable to the Purchaser, shall have been executed by the parties thereto.
8. CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATION TO CLOSE.
The Seller's obligation to sell the Assets and to take the other
actions required to be taken by the Seller at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by the Seller, in whole or in part, in writing):
8.1 ACCURACY OF REPRESENTATIONS. All of the representations and
warranties made by the Purchaser in this Agreement (considered collectively),
and each of said representations and warranties (considered individually), shall
have been accurate in all material respects as of the date of this Agreement and
shall be accurate in all material respects as of the Closing Date.
8.2 PERFORMANCE OF OBLIGATIONS.
(a) The Purchaser shall have executed and delivered the
Assumption Agreement and shall have made the payment contemplated by Section
2.3(a)(i).
(b) All of the other covenants and obligations that the
Purchaser is required to comply with or to perform pursuant to this Agreement at
or prior to the Closing (considered collectively), and each of said covenants
and obligations (considered individually), shall have been complied with and
performed in all material respects.
8.3 BANKRUPTCY CASE. The Bankruptcy Court shall have entered the
Sale Order (as defined in Section 10.2), which Sale Order shall not have been
reversed, rescinded, stayed, modified or amended prior to the Closing Date.
8.4 RESTRAINTS. No injunction or other order preventing the
consummation of the transactions contemplated by the Transactional Agreements
shall have been issued since the date of this Agreement by any United States
federal or state court of competent jurisdiction and shall remain in effect.
8.5 BEST OFFER. The transactions contemplated by the Transactional
Agreements shall be determined by the Bankruptcy Court to be the highest and
best offer for the Assets.
8.6 CURE PAYMENTS. The Purchaser shall have paid the Cure
Payments.
8.7 LICENSE AGREEMENT. The License Agreement, in a form reasonably
acceptable to the Seller, shall have been executed by the parties thereto.
9. TERMINATION.
9.1 TERMINATION EVENTS. This Agreement may be terminated prior to
the Closing:
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(a) by the Purchaser if (i) there is a material breach of
any covenant or obligation of the Seller and such breach shall not have been
cured within ten days after the delivery of notice thereof to the Seller, or
(ii) the Purchaser reasonably determines that the timely satisfaction of any
condition set forth in Section 7 has become impossible or impractical (other
than as a result of any failure on the part of the Purchaser to comply with or
perform its covenants and obligations set forth in this Agreement);
(b) by the Seller if (i) there is a material breach of
any covenant or obligation of the Purchaser and such breach shall not have been
cured within ten days after the delivery of notice thereof to the Purchaser, or
(ii) the Seller reasonably determines that the timely satisfaction of any
condition set forth in Section 8 has become impossible or impractical (other
than as a result of any failure on the part of any Shareholder or the Seller to
comply with or perform any covenant or obligation set forth in this Agreement);
(c) by either party if the Bankruptcy Court: (i)
determine not to enter the Sale Order (as defined in Section 10.2); (ii)
approves a transaction or series of transactions involving a sale, transfer or
assignment of all or substantially all of the Assets to a Person other than the
Purchaser; or (iii) in the event that a stay pending appeal or a writ of mandate
of the Sale Order is granted on behalf of any party; or
(d) by the mutual written consent of the Purchaser and
the Seller.
9.2 TERMINATION PROCEDURES. If either party wishes to terminate
this Agreement pursuant to Section 9.1, such party will deliver to the other
party a written termination notification stating that such party is terminating
this Agreement and setting forth in reasonable detail the basis on which such
party is terminating this Agreement.
9.3 EFFECT OF TERMINATION. If this Agreement is terminated
pursuant to Section 9.1, all further obligations of the parties under this
Agreement shall terminate; provided, however, that (a) no party shall be
relieved of any obligation or other liability arising from any breach by such
party of any provision of this Agreement and (b) the parties shall, in all
events, remain bound by and continue to be subject to the provisions set forth
in Section 11.4.
9.4 NONEXCLUSIVITY OF TERMINATION RIGHTS. The termination rights
provided in Section 9.1 shall not be deemed to be exclusive. Accordingly, the
exercise by any party of its right to terminate this Agreement pursuant to
Section 9.1 shall not be deemed to be an election of remedies and shall not be
deemed to prejudice, or to constitute or operate as a waiver of, any other right
or remedy that such party may be entitled to exercise (whether under this
Agreement, under any statute or rule, at common law, in equity or otherwise).
10. AS-IS OFFER AND BANKRUPTCY APPROVALS.
10.1 AS-IS TRANSACTION. Whether as of the date hereof or as of the
Closing Date, the Purchaser hereby acknowledges and agrees that, the Seller
makes no representations or warranties whatsoever, express or implied, with
respect to any matter relating to the Assets, including (a) income to be derived
or expenses to be incurred in connection with the Assets; (b) the physical
condition of any personal property or any tangible or intangible personal
property
10.
comprising a part of the Assets or the property or assets which are the subject
of any Assigned Contract; (c) the environmental condition or other matter
relating to the physical condition of any property or improvements of the Assets
(or any portion thereof) or (d) the merchantability or fitness of the Assets for
a particular purposes. Without in any way limiting the foregoing, the Seller
hereby disclaims any warranty (express or implied) of merchantability or fitness
for a particular purpose as to any portion of the Assets. The Purchaser further
acknowledges that the Purchaser has conducted an independent inspection and
investigation of the physical condition of all portions of the Assets and all
such other matters relating to or affecting the Assets as the Purchaser deemed
necessary or appropriate and that in proceeding with this Agreement, the
Purchaser is and will do so based solely upon such independent inspections and
investigations. Accordingly, the Purchaser will accept the Assets at the Closing
"AS-IS," WHERE IS" AND "WITH ALL FAULTS."
10.2 SALE ORDER PROCEDURES. As soon as practicable following a
hearing before the Bankruptcy Court to consider the sale of the Assets by the
Seller (the "Sale Hearing"), the Seller shall, if the transactions contemplated
by the Transactional Agreements shall be determined by the Bankruptcy Court to
be the highest and best offer for the Assets, file with the Bankruptcy Court a
motion or motions seeking entry of an Order of the Bankruptcy Court approving
this Agreement and the sale of the Assets contemplated hereunder pursuant to
Section 363 of the Bankruptcy Code and the assumption and assignment of the
Assigned Contracts in accordance with Section 365 of the Bankruptcy Code (the
"Sale Order").
11. MISCELLANEOUS PROVISIONS.
11.1 FURTHER ASSURANCES. Each party hereto shall execute and/or
cause to be delivered to each other party hereto such instruments and other
documents, and shall take such other actions, as such other party may reasonably
request (prior to, at or after the Closing) for the purpose of carrying out or
evidencing any of the transactions contemplated by the Transactional Documents.
11.2 NO OTHER REPRESENTATIONS. The parties acknowledge that, except
as expressly set forth in this Agreement and the Assumption Agreement, neither
party has made or is making any representations or warranties whatsoever to the
other, implied or otherwise.
11.3 SURVIVAL OF REPRESENTATIONS AND WARRANTS. None of the Seller's
representations and warranties and pre-closing covenants contained in this
Agreement or the Assumption Agreement or in any other agreement, document or
certificate delivered pursuant to this Agreement shall survive the Closing and
neither the Seller nor any of its officers, directors, Representatives,
employees, advisors or agents shall have any liability to the Purchaser or any
other Person after the Closing for any breach thereof.
11.4 FEES AND EXPENSES.
(a) Subject to the approval of the Bankruptcy Court, the
Seller shall bear and pay all fees, costs and expenses (including all legal fees
and expenses payable to ▇▇▇▇▇▇ Godward LLP) that have been incurred or that are
in the future incurred by, on behalf of or for the benefit of the Seller in
connection with: (i) the negotiation, preparation and review of any letter
11.
of intent or similar document relating to the Transaction; (ii) the negotiation,
preparation and review of the Transactional Agreements and other instruments and
documents delivered or to be delivered in connection with the Transaction; (iii)
the preparation and submission of any filing or notice required to be made or
given in connection with any of the Transaction, and the obtaining of any
Consent required to be obtained in connection with any of the Transaction; and
(iv) the consummation and performance of the Transaction.
(b) the Purchaser shall bear and pay all fees, costs and
expenses (including all legal fees and expenses payable to counsel and other
advisors) that have been incurred or that are in the future incurred by or on
behalf of the Purchaser in connection with: (i) the negotiation, preparation and
review of any letter of intent or similar document relating to the Transaction;
(ii) the investigation and review conducted by the Purchaser and its
Representatives with respect to the business of the Seller; (iii) the
negotiation, preparation and review of the Transactional Agreements and other
instruments and documents delivered or to be delivered in connection with the
Transaction; and (iv) the consummation and performance of the Transactions.
11.5 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to any of the Transactional Agreements or the enforcement of any
provision of any of the Transactional Agreements is brought against any party to
this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees, costs and disbursements (in addition to any other relief to
which the prevailing party may be entitled).
11.6 NOTICES. Any notice or other communication required or
permitted to be delivered to any party under this Agreement shall be in writing
and shall be deemed properly delivered, given and received when delivered (by
hand, by registered mail, by courier or express delivery service or by
facsimile) to the address or facsimile telephone number set forth beneath the
name of such party below (or to such other address or facsimile telephone number
as such party shall have specified in a written notice given to the other
parties hereto):
if to the Seller:
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ Godward LLP
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Purchaser:
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
in either case, with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
11.7 TIME OF THE ESSENCE. Time is of the essence of this Agreement.
11.8 HEADINGS. The underlined headings contained in this Agreement
are for convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
11.9 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
11.10 GOVERNING LAW; VENUE.
(a) This Agreement shall be construed in accordance with,
and governed in all respects by, the internal laws of the State of California
(without giving effect to principles of conflicts of laws).
(b) If any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision of this Agreement
is brought or otherwise commenced, the venue therefore will be the Bankruptcy
Court. The Purchaser and the Seller hereby expressly and irrevocably consent and
submit to the jurisdiction of the Bankruptcy Court.
11.11 SUCCESSORS AND ASSIGNS; PARTIES IN INTEREST.
(a) This Agreement shall be binding upon: the Seller and
its successors and assigns (if any) and the Purchaser and its successors and
assigns (if any). This Agreement shall inure to the benefit of: the Seller; the
Purchaser and the respective successors and assigns (if any) of the foregoing.
(b) Neither party may assign any of its rights or
delegate any of its obligations under this Agreement or the Assumption Agreement
(whether voluntarily, involuntarily, by way of merger or otherwise) to any other
Person without the prior written consent of the other party.
13.
(c) Nothing in this Agreement is intended to provide any
rights or remedies to any employee of the Seller or to any other Person other
than the parties.
11.12 WAIVER.
(a) No failure on the part of any Person to exercise any
power, right, privilege or remedy under this Agreement, and no delay on the part
of any Person in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy.
(b) No Person shall be deemed to have waived any claim
arising out of this Agreement, or any power, right, privilege or remedy under
this Agreement, unless the waiver of such claim, power, right, privilege or
remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of such Person; and any such waiver shall not be applicable
or have any effect except in the specific instance in which it is given.
11.13 AMENDMENTS. This Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf of the Purchaser and the Seller.
11.14 SEVERABILITY. In the event that any provision of this
Agreement, or the application of any such provision to any Person or set of
circumstances, shall be determined to be invalid, unlawful, void or
unenforceable to any extent, the remainder of this Agreement, and the
application of such provision to Persons or circumstances other than those as to
which it is determined to be invalid, unlawful, void or unenforceable, shall not
be impaired or otherwise affected and shall continue to be valid and enforceable
to the fullest extent permitted by law.
11.15 ENTIRE AGREEMENT. The Transactional Agreements set forth the
entire understanding of the parties relating to the subject matter thereof and
supersede all prior agreements and understandings among or between any of the
parties relating to the subject matter thereof.
11.16 CONSTRUCTION.
(a) For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include the masculine and feminine genders.
(b) The parties hereto agree that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party shall not be applied in the construction or interpretation of
this Agreement.
14.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Agreement and Exhibits to this Agreement.
15.
The parties to this Agreement have caused this Agreement to be executed
and delivered as of the date set forth on the first page.
AUSPEX SYSTEMS, INC.,
a Delaware corporation
By:____________________________________
___________________, President
By:____________________________________
___________________, Secretary
GLASSHOUSE TECHNOLOGIES, INC.,
a Delaware corporation
By:____________________________________
Title:_________________________________
16.
