EXHIBIT 10.15
ASSET PURCHASE AGREEMENT
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AND ASSIGNMENT OF CONTRACT RIGHTS
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THIS ASSET PURCHASE AGREEMENT AND ASSIGNMENT OF CONTRACT RIGHTS (this
"Agreement") dated as of March 15, 2001 (the "Effective Date"), between
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Comdisco, Inc., a Delaware corporation having an office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Seller"), and NetSolve, Incorporated, a
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Delaware corporation, having an office at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ ("Buyer").
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RECITALS:
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Seller is engaged in remote monitoring and network management services (the
"Business"), among other things. Seller desires to retain all of its assets and
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properties used in connection with the Business and not listed on Schedule 1.1
hereto as well as any other service or other portion of the Seller's business
not included in the definition of the Business (the "Retained Business") and to
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sell to Buyer and Buyer desires to acquire from Seller, all right, title and
interest of Seller in and to the portion of the contracts of Seller relating to
the Business, all upon the terms and subject to the conditions herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the parties hereto agree as follows:
1. Acquisition
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1.1. Acquired Contracts
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(a) In consideration of the payment by Buyer of the Acquisition Price (as
defined in Section 3.1 below) and certain additional payments as
described herein, Seller hereby sells, assigns, transfers, conveys
and delivers to Buyer, and Buyer hereby purchases, acquires and takes
assignment and delivery of, all the right, title and interest of
Seller in and to the contracts or the portions of the contracts of
Seller listed on Schedule 1.1 and identified thereon as "Acquired
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Contracts". As described in Section 8.2 hereof, certain contracts of
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Seller relating to the Business are, as of the Effective Date,
subject to certain consent requirements or other conditions and are
not being assigned at this time. If and when such contracts are
assigned, as contemplated in Section 8.2 hereof, they shall become
Acquired Contracts as of that time.
(b) Except as set forth on Schedule 1.1, all of the Acquired Contracts
are fully assignable without any action on the part of any party, or
all action necessary to effect the assignment evidenced hereby has
been taken, and the Acquired Contracts are being sold, assigned,
transferred, conveyed and delivered to Buyer free and clear of all
claims, encumbrances, security interests, mortgages, pledges,
restrictions, charges, or liens of any kind, including, without
limitation, tax liens ("Liens").
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Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*]. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
1.2. Excluded Assets. Notwithstanding the foregoing, Seller is not
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selling, assigning, transferring, conveying or delivering, and Buyer
is not purchasing pursuant to this Agreement, and the term "Acquired
Contracts" does not include, any contracts, portions of contracts,
assets or properties of Seller not expressly and specifically
included in the list of Acquired Contracts on Schedule 1.1 as it may
be updated hereafter pursuant to Section 8.3 (the "Excluded Assets").
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2. Limited Assumption of Obligations
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2.1. Assumption of Obligations. Subject to the terms, conditions,
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representations and warranties contained herein, Buyer hereby assumes
and agrees to fully and completely perform and discharge when due all
obligations of Seller arising after the Service Date with respect to
the Acquired Contracts (the "Assumed Obligations") and no other
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obligations or liabilities of Seller. For each Acquired Contract, the
"Service Date" is the earlier of: (i) the date the transition from
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Seller's network operations center in Wood Dale, Illinois to Buyer's
network operations center in Austin, Texas is complete for the
particular Acquired Contract; or (ii) thirty days following both the
Closing of the particular Acquired Contract and the provision by
Seller to Buyer (as confirmed by Buyer in writing) of, at a minimum,
the network diagrams, ARS database images, escalation procedures,
performance reports and contact lists for the particular Acquired
Contract, each in the best available format as specified on Schedule
2.1. The Service Date for each Acquired Contract shall be documented
in a writing signed by both Buyer and Seller. Seller shall retain and
agrees to fully and completely perform and discharge when due all
obligations which arose prior to the Service Date with respect to the
Acquired Contracts, as well as all obligations with respect to the
Excluded Assets. Except as expressly provided herein, Buyer does not
assume or agree to pay, perform or discharge, any debts, liabilities,
obligations, claims, expenses, taxes, contracts, accounts payable, or
commitments of any kind, character or description, whether accrued or
fixed, absolute or contingent, matured or unmatured or determined or
undetermined (collectively, "Obligations") of Seller.
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2.2. Excluded Obligations. Regardless of whether any of the following may
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be disclosed to Buyer pursuant to Section 4 hereof or otherwise, or
whether Buyer has knowledge of same, other than the Assumed
Obligations, Buyer does not assume, and shall have no liability for
Obligations arising out of any act or omission of Seller (the
"Excluded Obligations") including, without limitation, any Obligation
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of Seller relating to or arising from: (i) the breach of Seller's
obligations under the Acquired Contracts prior to the Service Date;
(ii) any infringement by Seller on the rights of others in connection
with the Business; (iii) taxes, including, without limitation, any
social security taxes or any other taxes relating to Seller's current
or former employees, any employment or withholding taxes upon
employees collected by Seller, any income, capital gains,
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sales, use or transfer tax arising from the operations of Seller,
including any thereof that may be due in connection with the
transactions contemplated hereby; (iv) any accrued but unpaid
payroll, severance, bonus, holiday, vacation and/or employee benefit
obligations to employees of Seller; (v) any damages, fines, interest
or penalties assessed by any federal, state, county, city or
municipal government or governmental agency or authority; or (vi) any
current or long-term debts, payables or amounts owing to any of
Seller's officers, directors, shareholders or any of their affiliates
or any other third party. Seller retains, and shall fully and
completely pay, perform and discharge when due all Excluded
Obligations.
3. Acquisition Price and Certain Additional Payments
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3.1. Acquisition Price. Upon Closing (as that term is defined in Section
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8.3 below), Buyer will make a payment to Seller equal to * percent
(*%) of the Aggregate Remaining Term Value (specified on Schedule 1.1
hereto) of the Acquired Contracts ("Acquisition Price"). The parties
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understand and agree that the Aggregate Remaining Term Value shall
not include any contracts pursuant to which Buyer performs services
as a subcontractor of Seller under Section 7.7.
3.2. Additional Continuing Payments. In addition to the Acquisition Price,
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Buyer agrees to pay Seller the continuing payments described below.
(a) Commencing as of the Service Date and continuing until such time
as Buyer has collected aggregate fees from customers under the
Acquired Contracts equal to the Aggregate Remaining Term Value of
all Acquired Contracts, Buyer will, on or before the twentieth
(20th) day of each month, pay Seller an amount equal to a certain
percentage of the fees (specified on Schedule 1.1 hereto)
collected by Buyer during the previous month for services
previously rendered by Buyer under the Acquired Contracts. The
first payment of fees by Buyer to Seller for each Acquired
Contract under this subsection will be prorated so that Seller
shall receive the pro rata portion allocable to that part of the
first month that follows the Service Date. After Buyer has
collected fees from the customers under the Acquired Contracts
equal to the Aggregate Remaining Term Value of all Acquired
Contracts, the additional monthly payment provided for in this
paragraph shall be increased to * percent (*%) of the fees
collected by Buyer during the previous month for services
previously rendered by Buyer under the Acquired Contracts.
(b) For any New Business (as defined below) sold by Buyer to
customers under the Acquired Contracts and booked by Buyer on or
before March 31, 2002, Buyer will, on or before the twentieth
(20th) day of each month, pay Seller * percent (*%) of the fees
collected by Buyer during the previous month relating to such New
Business. For any New Business
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission
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sold by Buyer to customers under the Acquired Contracts and
booked by Buyer after March 31, 2002, Buyer will, on or before
the twentieth (20th) day of each month, pay Seller * percent (*%)
of the fees collected by Buyer during the previous month relating
to such New Business. "New Business" shall mean additional
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recurring network management services, including such services
for new locations, not being purchased by the customer under the
Acquired Contract at the time of Closing. In the event that the
aggregate fees collected by Buyer under the Acquired Contracts
for network management services are, at any point in time and on
an ongoing basis, less than the amount of the anticipated fees
that Buyer should have collected based on the Aggregate Remaining
Term Value of the Acquired Contracts, due to early terminations
not caused by Buyer performance or quality issues, Buyer will
have the right to reduce the percentage applicable to New
Business to * percent (*%).
(c) The monthly payments provided for under Sections 3.2(a) and
3.2(b) shall continue through the later of March 31, 2004, or the
expiration or termination of the original term of the Acquired
Contract. All Acquired Contracts, whether in their initial term
or a renewal term, will be included in calculating such monthly
payments for the period commencing as of the Service Date and
ending March 31, 2004. For the period beginning April 1, 2004,
only Acquired Contracts that are in their initial term will be
included in the calculation of the payments.
(d) For each customer of Seller (excluding customers under the
Acquired Contracts) which Seller refers to Buyer in writing and
with which Buyer enters into a contract for the sale of Buyer's
network management services (each, a "New Customer Contract"),
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Buyer will, on or before the twentieth (20th) day of each month,
pay Seller an amount equal to * percent (*%) of the fees
collected by Buyer during the previous month for services
previously rendered by Buyer under each New Customer Contract.
With respect to each New Customer Contract, the payments will
continue for the longer of the initial term of such New Customer
Contract or two (2) years from the date of the execution of such
New Customer Contract, unless the New Customer Contract is
terminated prior to such time, in which case Buyer's payments
hereunder with respect to such New Customer Contract shall cease
upon termination.
(e) Notwithstanding any other provision of this Agreement, the
parties understand and agree that the additional monthly payments
provided for in this Section 3.2 shall be calculated solely on
the basis of fees actually collected by Buyer for recurring
network management services. In furtherance of this, the
calculation of such additional monthly payments shall not include
amounts received by Buyer for one-time implementation
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission
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services and the like regardless of the manner in which Buyer
structures the pricing under a particular contract.
3.3. Audit. Buyer shall keep true and accurate records relating to the
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Acquired Contracts in accordance with reasonable business practices.
Buyer shall make such records available for audit by Seller semi-
annually upon thirty (30) days prior written notice, during regular
business hours at Buyer's principal place of business, provided that
no such audit shall unreasonably interfere with Buyer's business.
4. Representations and Warranties of Seller
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In addition to any other representations and warranties provided
elsewhere in this Agreement, Seller hereby represents and warrants to
Buyer as follows:
4.1. Organization of Seller. Seller is a corporation duly organized,
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validly existing and in good standing under the laws of the State of
Delaware. Seller has all requisite power and authority to own the
Acquired Contracts, to conduct the Business as currently conducted by
Seller and is duly licensed, permitted or qualified to do business in
each jurisdiction listed on Schedule 4.1.
4.2. Authority. Seller has all requisite power and authority to execute
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and deliver this Agreement and, if applicable, the Subcontractor
Agreement as defined in Section 7.7 below, to carry out its
obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. Seller has obtained all
necessary approvals for the execution and delivery of this Agreement
and, if applicable, the Subcontractor Agreement, the performance of
its obligations hereunder and thereunder, and the consummation of the
transactions contemplated hereby and thereby. Both this Agreement
and, if applicable, the Subcontractor Agreement have been duly
executed and delivered by Seller and (assuming due authorization,
execution and delivery by the other parties hereto and thereto)
constitutes Seller's legal, valid and binding obligation, enforceable
against Seller in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally and general equitable principles (whether considered
in a proceeding in equity or at law).
4.3. Non-Contravention. Except as set forth on Schedule 4.3, none of the
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execution and delivery of this Agreement and, if applicable, the
Subcontractor Agreement by Seller, the performance of Seller's
obligations hereunder and thereunder or the consummation by Seller of
the transactions contemplated hereby or thereby will conflict with
Seller's Certificate of Incorporation or By-laws or will, with or
without notice, the passage of time or both, constitute a material
breach or violation of, be in conflict with, constitute or create a
material default under, or result in the creation or imposition of
any Liens under (a) any contract, indenture,
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agreement, instrument, mortgage, lease or commitment to which Seller
is a party or by which Seller is or any of Seller's properties are
bound, or to which Seller is subject or (b) any law or statute or any
judgment, decree, order, regulation or rule of any court or
governmental or regulatory authority relating to Seller or the
Business.
4.4. Solvency. Seller is not currently insolvent, as such term is defined
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in Title 11 of the United States Bankruptcy Code or any state statute
relating to insolvency, and none of the execution and delivery of
this Agreement by Seller, the performance of its obligations
hereunder or the consummation by Seller of the transactions
contemplated hereby will render Seller insolvent or result in Seller
being unable to pay its debts as they become due.
4.5. No Right to Terminate. There has been no event which could give rise
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to the right of any customer under an Acquired Contract to terminate
the Acquired Contract.
4.6. Acquired Contracts. Schedule 1.1 contains a true, complete and
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accurate list of all of the underlying agreements, Schedules and
related Statements of Work of the Acquired Contracts. To the best of
Seller's knowledge and belief and based upon Seller's good faith due
diligence, Schedule 1.1 contains a true, complete and accurate list
of: (i) the total amount billed under each such Acquired Contract
each month; (ii) the price per device for each Acquired Contract;
(iii) the term of each Acquired Contract; (iv) the Aggregate
Remaining Term Value of each such Acquired Contract; (v) cancellation
and/or early termination provisions of each Acquired Contract; and
(vi) provisions in each Acquired Contract providing for credits,
penalties or reduced prices.
4.7. Governmental Consents. There are no consents, approvals or
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authorizations of, or registrations, qualifications or filings with,
governmental or regulatory agencies or authorities necessary in
connection with the execution and delivery of this Agreement by
Seller, the performance of Seller's obligations hereunder or the
consummation of the transactions contemplated hereby.
4.8. Compliance with Laws. Seller has conducted the Business, in all
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material respects, in accordance with all laws and statutes and
rules, regulations, judgments, orders or decrees of any court or
governmental or regulatory authority applicable to Seller, the
Business or the Acquired Contracts, and Seller is not in violation of
any such laws, statutes, rules, regulations, judgments, orders or
decrees.
4.9. Litigation. Except as set forth on Schedule 4.9, there are no
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judicial or administrative actions, suits, proceedings or
investigations pending or threatened, directly relating to or
affecting the Seller, the Acquired Contracts or the Business which
question the validity of this Agreement or challenge any of the
transactions
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contemplated hereby or the enforceability of the Acquired Contracts,
or the conduct of the Business under the Acquired Contracts by Buyer
after the Service Date. To the best knowledge of Seller, there are no
facts or circumstances that are reasonably likely to give rise to any
of the foregoing.
4.10 Permits. There are no special permits, licenses, franchises, orders,
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certificates or approvals of any federal, state or local regulatory
or administrative agency or court required for the lawful operation
of the Business and the Acquired Contracts.
4.11 Prepaid Fees. There are no prepaid fees under any of the Acquired
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Contracts.
4.12. Status of the Acquired Contracts. Except as disclosed on Schedule
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4.12, the Acquired Contracts are valid, legally binding and
enforceable in accordance with their terms and are in full force and
effect, and there are no existing material defaults (or events that,
with notice or lapse of time or both, would constitute a material
default) with respect to any of the Acquired Contracts. In accordance
with Section 4.6, Seller has delivered to Buyer true and complete
copies of each of the Acquired Contracts.
4.13. Brokers, Finders Etc. All negotiations relating to this Agreement
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and the transactions contemplated hereby have been carried on without
the participation of any person or entity acting on behalf of Seller
in such manner as to give rise to any valid claim for any brokerage
or finder's fee, commission or similar compensation.
4.14. No Material Misstatements or Omissions. No representation or
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warranty made in this Agreement by Seller is false or misleading as
to any material fact, or omits to state a material fact required to
make any of the statements made herein not misleading in any material
respect.
5. Representations and Warranties of Buyer.
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In addition to any other representations and warranties provided elsewhere
in this Agreement, Buyer represents and warrants to Seller as follows:
5.1. Organization of Buyer. Buyer is a corporation duly organized, validly
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existing and in good standing under the laws of the State of
Delaware. Buyer has all requisite power and authority under its
charter and governance documents and under applicable laws to execute
and deliver this Agreement and, if applicable, the Subcontractor
Agreement, to carry out its obligations hereunder and thereunder, and
to consummate the transactions contemplated hereby and thereby.
5.2. Authority. Buyer has obtained all necessary approvals for the
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execution and delivery of this Agreement and, if applicable, the
Subcontractor Agreement, the
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performance of its obligations hereunder and thereunder, and the
consummation of the transactions contemplated hereby and thereby.
Each of this Agreement and, if applicable, the Subcontractor
Agreement, has been duly executed and delivered by Buyer and
(assuming due authorization, execution and delivery by the other
parties hereto and thereto) constitutes Buyer's legal, valid and
binding obligation, enforceable against Buyer in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and general
equitable principles (whether considered in a proceeding in equity or
at law).
5.3. Non-Contravention. None of the execution and delivery of this
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Agreement and, if applicable, the Subcontractor Agreement by Buyer,
the performance of its obligations hereunder and thereunder, or the
consummation by Buyer of the transactions contemplated hereby and
thereby will constitute a violation of, or be in conflict with,
Buyer's Certificate of Incorporation and By-laws or will, with or
without notice, the passage of time or both, constitute a material
breach or violation of, be in conflict with, constitute or create a
material default under or result in the creation or imposition of any
Liens upon any property of Buyer pursuant to (a) any contract,
indenture, agreement, instrument, mortgage, lease or commitment to
which Buyer is a party or by which any of its properties are bound,
or to which Buyer is subject or (b) any law or statute or any
judgment, decree, order, regulation or rule of any court or
governmental or regulatory authority relating to Buyer.
5.4. Litigation. There are no actions, suits, proceedings or
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investigations pending or threatened against Buyer which question the
validity of this Agreement or challenge any of the transactions
contemplated hereby and, to the best knowledge of Buyer, there are no
facts or circumstances that are reasonably likely to give rise to any
of the foregoing.
5.5. Brokers, Finders Etc. All negotiations relating to this Agreement and
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the transactions contemplated hereby have been carried on without the
participation of any person or entity acting on behalf of Buyer in
such manner as to give rise to any valid claim for any brokerage or
finder's fee, commission or similar compensation.
5.6. Governmental Consents. There are no consents, approvals or
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authorizations of, or registrations, qualifications or filings with,
governmental or regulatory agencies or authorities necessary in
connection with the execution and delivery of this Agreement by
Buyer, the performance of Buyer's obligations hereunder or the
consummation of the transactions contemplated hereby.
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6. Indemnification.
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6.1. Indemnification.
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(a) Seller agrees to defend, indemnify and hold harmless Buyer, any
subsidiary or affiliate thereof and its officers, directors,
shareholders and controlling persons, employees, agents, successors
and assigns (the "Indemnified Buyer Group") from and against any and
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all Obligations (other than the Assumed Obligations), losses,
damages, claims, costs, expenses, judgments, interest and penalties
(including, without limitation, attorneys' and accountants'
reasonable fees and disbursements incurred by the Indemnified Buyer
Group in any action or proceeding between Seller and the Indemnified
Buyer Group or between the Indemnified Buyer Group and any third
party or otherwise) (collectively, "Losses") incurred as a result of,
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arising out of or resulting from:
(i) the breach of any representation, warranty, covenant or
agreement made by Seller contained in this Agreement; or
(ii) any claim or cause of action of any third party (including,
without limitation, any federal or state government entity),
whether commenced before or after the Effective Date of this
Agreement, arising out of any action, inaction, event,
condition, or Obligation of Seller, including any claim or
cause of action under any Acquired Contract arising or existing
prior to the Service Date of the Acquired Contract (regardless
of whether or not referred to on a Schedule to this Agreement
or otherwise disclosed or known to Buyer as of the date
hereof); or
(iii) any fines or penalties assessed by any federal, state, county,
city or municipal government or any governmental agency or
authority to the extent arising out of any action, inaction,
event, condition, or Obligation of Seller occurring or existing
prior to the Service Date of the Acquired Contract to which
such fine or penalty relates (regardless of whether or not
referred to on a Schedule to this Agreement or otherwise
disclosed or known to Buyer as of the date hereof); or
(iv) failure to pay, perform or discharge when due any Excluded
Obligation.
(b) Buyer agrees to defend, indemnify and hold harmless Seller, any
subsidiary or affiliate thereof and any of their officers, directors,
controlling persons, employees, agents, successors and assigns (the
"Indemnified Seller Group") from and against any and all Assumed
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Obligations (other than the Excluded
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Obligations), losses, damages, claims, costs, expenses, judgments,
interest and penalties (including, without limitation, attorneys' and
accountants' reasonable fees and disbursements incurred by the
Indemnified Seller Group in any action or proceeding between Buyer
and Indemnified Seller Group or between the Indemnified Seller Group
and any third party or otherwise) (collectively "Losses") incurred as
a result of, arising out of or resulting from:
(i) the breach of any representation, warranty, covenant or
agreement made by Buyer contained in this Agreement; or
(ii) any claim or cause of action of any third party (including,
without limitation, any federal or state government entity)
arising out of any action, inaction, event, condition, or
Assumed Obligation of Buyer arising on or after the Service
Date of the particular Acquired Contract to which such claim or
cause of action relates; or
(iii) the failure on the part of Buyer to pay, perform and discharge
when due the Assumed Obligations; or
(iv) the failure of Buyer to perform under any Acquired Contract.
6.2. Survival of Representations and Warranties. The representations and
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warranties made by Buyer and Seller are made as of the Closing and
not on a continuous basis. All representations and warranties made by
or on behalf of Seller in this Agreement shall be deemed to have been
relied upon by Buyer (notwithstanding any investigation by Buyer).
6.3. Notice of Claims. An indemnified party shall give prompt written
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notice to the indemnifying party of any claim against the indemnified
party which might give rise to a claim by the indemnified party
against the indemnifying party under the indemnification provisions
contained herein, stating the nature and basis of the claim and the
actual or estimated amount thereof; provided, however, that failure
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to give such notice will not effect the obligation of the
indemnifying party to provide indemnification in accordance with the
terms of Section 6.1 unless, and only to the extent that, the
indemnifying party is actually prejudiced thereby. In the event that
any action, suit or proceeding is brought against any indemnified
party with respect to which the indemnifying party may have liability
under the indemnification provisions contained herein, the
indemnifying party shall, upon written acknowledgement by the
indemnifying party that such action, suit or proceeding is an
indemnifiable loss pursuant to Section 6.1, have the right, at the
cost and expense of the indemnifying party, to defend such action in
the name and on behalf of the indemnified party (using counsel
reasonably satisfactory to the indemnified party), and, in connection
with any such action, the indemnified party and indemnifying party
agree to render to each other such assistance as may reasonably be
required in order to ensure proper and adequate defense of such
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action; provided, however, that an indemnified party shall have the
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right to retain its own counsel, with fees and expenses paid by the
indemnifying party, if representation of such indemnified party by
counsel retained by the indemnifying party would be inappropriate
because of an actual conflict of interest between such indemnified
party and the indemnifying party in the particular matter at hand. If
the indemnifying party shall fail to defend such action, suit or
proceeding, then the indemnified party shall have the right to defend
such action without prejudice to its rights to indemnification under
Section 6.1 and, in connection therewith, the indemnified party and
the indemnifying party agree to render to each other such assistance
as may reasonably be required in an effort to provide for the
appropriate defense of such action. Neither the indemnified party nor
the indemnifying party shall make any settlement of any claim which
might give rise to liability of the indemnifying party under the
indemnification provisions contained herein without the written
consent of each party, which consent shall not be unreasonably
withheld, delayed or conditioned.
7. Additional Agreements
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7.1. Operations. Buyer intends to transfer network operations for the
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Acquired Contracts from Seller's center in Wood Dale, Illinois to
Buyer's center in Austin, Texas as soon as reasonably practical
following the assignment of the Acquired Contracts to Buyer
hereunder. Seller understands, however, that it will be required to
retain and continue to operate its network operations center for the
Acquired Contracts for a mutually agreeable period of time beyond
Closing. The parties agree, however, that if Seller is required to
continue to operate its network operations center beyond May 15, 2001
in order to support any Acquired Contracts (excluding Acquired
Contracts assigned to Buyer after April 15, 2001, or Acquired
Contracts for which pertinent information necessary to transition the
Acquired Contracts is not provided to Buyer as provided for in the
last sentence of this Section 7.1 and contracts for which Buyer acts
as a subcontractor), Buyer will reimburse Seller for all reasonable
operational costs associated with the continued operation of Seller's
network operations center so long as such continued operations are
solely in connection with such Acquired Contracts. In no event will
the reimbursement amount for any given month exceed the amount
collected as fees for the Business under the Acquired Contracts for
that month. In order to facilitate a smooth and timely transition of
the Acquired Contracts to Buyer, Seller will upon Closing, and
continuing weekly thereafter, provide Buyer with all requisite site
implementation information for all of the Acquired Contracts in
increments of a minimum of 1,000 sites per week.
7.2. Billing and Apportionment. In order to effectuate an orderly billing
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transition to Buyer, Seller shall continue to ▇▇▇▇ for services
rendered by Buyer under the Acquired Contracts during the period
commencing as of the Closing and ending June 30, 2001. After the
invoice for the month of June is mailed out by Seller, Buyer shall be
responsible for billing customers directly under all Acquired
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Contracts. Until May 31, 2001, Buyer will provide Seller with any
changes to the standard monthly recurring billing information for
services rendered by Buyer for the previous month under the Acquired
Contracts fifteen (15) days prior to the date Seller sends its
invoice to customers. On a monthly basis, Seller shall remit to Buyer
the amount of any payment received from customers in the prior month
attributable to the Acquired Contracts following the Service Date for
the Acquired Contracts and will retain any amounts due to Seller
pursuant to Section 3.2 hereof for Acquired Contracts fully
transitioned to Buyer.
7.3. Transfer of Business. For the period of time commencing with the
--------------------
Effective Date and ending March 31, 2004, Seller shall not, and shall
cause its employees, agents, representatives, affiliates, officers
and directors not to induce, incent, solicit or encourage, in any
manner, any customer of Seller under an Acquired Contract to transfer
to, or seek network management services as described in the Acquired
Contracts from, a provider other than Buyer.
7.4. Confidentiality. Seller and Buyer shall abide by the terms of the
---------------
non-disclosure provisions provided for in the Acquired Contracts.
7.5. Non-Compete. In consideration of the Acquisition Price and the
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continuing payments provided for herein, Seller agrees that for a
period of three (3) years from the Effective Date, Seller shall not
directly or through any affiliate sell, as a stand-alone service, to
customers under the Acquired Contracts remote monitoring or network
management services similar in scope and function to the services
described in the Acquired Contracts.
7.6. Employees. Buyer shall be permitted to discuss potential employment
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arrangements with those employees of Seller identified on Schedule
7.6. Buyer and Seller shall mutually agree to the employment start
date for any such employee hired by Buyer if such start date is prior
to May 15, 2001.
7.7. Subcontractor Agreement. Seller shall use all reasonable efforts to
-----------------------
obtain any consents necessary to assign or otherwise transfer all the
Seller's contracts in the Business to Buyer. In the event that any
consent required with respect to a contract in the Business cannot be
obtained, Seller may at its option and if permitted under the terms
of each such contract subcontract all of its obligations relating to
the Business under such contract to Buyer. In such event, Buyer and
Seller shall enter into a Schedule under the Subcontractor Agreement
attached hereto as Exhibit A (the "Subcontractor Agreement") covering
each such contract subcontracted to Buyer. Seller will retain the
billing obligation for all contracts subcontracted to Buyer.
7.8. Set-Off. Buyer shall have the right to set-off the following amounts
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against the payments due Seller pursuant to Sections 3.2(a), (b) and
(d):
12
(i) A pro rata portion of the Acquisition Price for a
particular Acquired Contract if: (i) the customer
terminates such Acquired Contract prior to the expiration
of the term stated on Schedule 1.1 for such contract; (ii)
such early termination right is provided for in the
Acquired Contract; and (iii) such termination is not
caused by Buyer performance or quality issues. The pro
rata portion of the Acquisition Price to be set-off shall
be * percent (*%) of the difference between the Aggregate
Remaining Term Value of the Acquired Contract as listed on
Schedule 1.1 and the actual aggregate remaining term value
of the Acquired Contract based on the early termination
date;
(ii) The amount of any credits, penalties, fee reductions or
reimbursements which are provided for in an Acquired
Contract and are exercised by a customer or otherwise
become applicable following the Service Date for such
Acquired Contract;
(iii) A pro rata portion of the Acquisition Price for a
particular Acquired Contract if: (i) the term of the
Acquired Contract actually expires earlier than the term
date stated on Schedule 1.1 for such Acquired Contract;
and (ii) the customer under the Acquired Contract does not
renew or extend such contract. The pro rata portion of the
Acquisition Price to be set-off shall be calculated by:
(i) multiplying the Acquisition Price of such Acquired
Contract by the ratio of the number of days in the actual
term of the Acquired Contract and the number of days in
the term stated on Schedule 1.1; and then (ii) subtracting
such amount from the Acquisition Price. If, however, a
set-off against the payments due Seller pursuant to
Sections 3(a), (b) and (d) is not sufficient to reimburse
Buyer the pro rata portion of the Acquisition Price due
Buyer pursuant to this subsection and such pro rata
portion of the Acquisition Price is greater than or equal
to * percent (*%) of the difference between the actual
remaining term value of the Acquired Contract based on the
actual term and the Aggregate Remaining Term Value of such
Acquired Contract as listed on Schedule 1.1, Seller shall
reimburse Buyer the pro rata portion of the Acquisition
Price within thirty (30) days of its receipt of written
notice of such amount; and
(iv) A pro rata portion of the Acquisition Price for a
particular Acquired Contract if the actual price per
device for an Acquired Contract is actually lower than the
price per device for such Acquired Contract listed on
Schedule 1.1. The pro rata portion of the Acquisition
Price to be set-off shall be * percent (*%) of the
difference between the Aggregate Remaining Term Value of
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission
13
the Acquired Contract as listed on Schedule 1.1 and the
actual aggregate remaining term value of the Acquired
Contract based on the actual price per device amount. If,
however, a set-off against the payments due Seller
pursuant to Sections 3(a), (b) and (d) is not sufficient
to reimburse Buyer the pro rata portion of the Acquisition
Price due Buyer pursuant to this subsection and such pro
rata portion of the Acquisition Price is greater than or
equal to * percent (*%) of the difference between the
actual remaining term value of the Acquired Contract based
on the actual price per device and the Aggregate Remaining
Term Value of such Acquired Contract as listed on Schedule
1.1, Seller shall reimburse Buyer the pro rata portion of
the Acquisition Price within thirty (30) days of its
receipt of written notice of such amount.
8. Closing.
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8.1. Initial Closing. The closing of the transactions contemplated by this
---------------
Agreement shall take place by facsimile or at the offices of
Comdisco, Inc. in Rosemont, Illinois on or before March 15, 2001
unless extended by both parties. The date on which such closing
actually takes place is herein referred to as the "Initial Closing".
---------------
Any subsequent closing will occur as provided for in Section 8.2.
8.2. Subsequent Closings. For contracts related to the Business for which
-------------------
Seller was unable to obtain a necessary consent to assignment prior
to the Initial Closing, there may be additional closings as such
consents to assignment are obtained (each a "Subsequent Closing");
------------------
provided, however, that no such Subsequent Closing shall occur later
than April 16, 2001, unless mutually extended by Buyer and Seller.
Anything in this Agreement to the contrary notwithstanding, the
network diagrams, ARS database images, escalation procedures,
performance reports and contact lists for the contracts to be added
as Acquired Contracts pursuant to Subsequent Closings must be
provided to Buyer prior to April 16, 2001, unless mutually extended
by Buyer and Seller.
8.3. Closing Procedures. Each date on which either the Initial Closing or
------------------
a Subsequent Closing takes place shall be deemed a "Closing". Each
Closing will result in the contract for which the necessary consent
has been obtained becoming an Acquired Contract for all purposes
hereof as of the Effective Date for the Initial Closing and the date
that the customer under the Acquired Contract executes the necessary
consent to assignment for Subsequent Closings. Upon each Subsequent
Closing, Schedule 1.1 shall be modified and updated to reflect each
such contract as an Acquired Contract. Upon each Closing, Buyer shall
pay Seller an amount equal to the Acquisition Price for each Acquired
Contract added to Schedule 1.1 for that Closing. All terms and
conditions of this Agreement, including the representations and
warranties of each party, will apply to each
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission
14
Acquired Contract and will be updated and renewed as of each
Subsequent Closing with respect to the applicable newly added
Acquired Contract.
8.4. Post-Closing Obligations. Following each Closing, Buyer and Seller
------------------------
shall execute and deliver such documents, and take such action as
shall be reasonably requested by the other party to carry out the
transactions herein contemplated.
9. General.
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9.1. Expenses. Except as expressly provided for in Section 7.1, all
--------
expenses of the preparation, execution and consummation of this
Agreement and of the transactions contemplated hereby including,
without limitation, attorneys', accountants' and outside advisors'
fees and disbursements, shall be borne by the party incurring such
expenses.
9.2. Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties and supersedes all prior agreements and understandings
relating to the subject matter hereof, including, without limitation,
the letter of intent dated February 8, 2001, among the parties
hereto, and shall not be amended or terminated except by a written
instrument hereafter signed by all of the parties hereto. The
Schedules to this Agreement are to be considered a part of this
Agreement for all purposes.
9.3. Assignment. None of the parties hereto may assign its rights or
----------
delegate its obligations under this Agreement without the prior
written consent of the other party.
9.4. Further Action. Each of the parties hereto shall use all reasonable
--------------
efforts to do, or cause to be done, all things necessary, proper or
advisable under applicable law to carry out the provisions of this
Agreement and shall execute and deliver such documents and other
papers as may be required to carry out the provisions of this
Agreement.
9.5. Notices. All notices will be in writing and will be sent by certified
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or registered United States mail, postage prepaid and return receipt
requested, or via a prepaid nationally recognized overnight courier
or facsimile transmission. Notices will be addressed to the party for
which it is intended at the address in the first paragraph of this
Agreement or to such other address as either party shall from time to
time indicate in writing. Notices will be effective upon receipt. A
facsimile counterpart of any notice may be delivered to the parties
and each party adopts its signature on the facsimile as its original
signature and agrees that the facsimile will have the same effect as
if the document had been signed and delivered by mail or in person.
15
9.6. Specific Performance. The parties agree that due to the unique
--------------------
subject matter of this transaction, monetary damages will be
insufficient to compensate the non-breaching party in the event of a
breach of any part of this Agreement. Accordingly, the parties agree
that the non-breaching party shall be entitled (without prejudice to
any other right or remedy to which it may be entitled) to an
appropriate decree of specific performance, or an injunction
restraining any violation of this Agreement or other equitable
remedies to enforce this Agreement (without establishing the
likelihood of irreparable injury or posting bond or other security),
and the breaching party waives in any action or proceeding brought to
enforce this Agreement the defense that there exists an adequate
remedy at law.
9.7. Severability. If any one or more of the provisions contained in this
------------
Agreement or any document executed in connection herewith shall be
invalid, illegal or unenforceable in any respect under any applicable
law, the validity, legality and enforceability of the remaining
provisions contained herein shall not (to the full extent permitted
by law) in any way be affected or impaired.
9.8. Attorney's Fees. In any action, proceeding or counterclaim arising
---------------
out of or in any way connected with this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees and
disbursements incurred in connection therewith.
9.9. No Third-Party Beneficiaries. This Agreement does not create, and
----------------------------
shall not be construed as creating, any rights enforceable by any
person not a party to this Agreement.
9.10. Headings. All headings in this Agreement are intended solely for
--------
convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement.
9.11. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original and all of
which taken together shall constitute one and the same instrument.
9.12. Governing Law. The validity and construction of this Agreement shall
-------------
be governed by the internal laws (and not the principles of conflict
of laws) of the State of Delaware.
9.13. Public Announcement. No press releases or public announcements
relating to this Agreement will be released unless agreed to in
writing in advance by both Seller and Buyer.
9.14. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR SPECIAL,
CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES
16
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
IN WITNESS WHEREOF, and intending to be legally bound thereby, Buyer and
Seller have caused this Agreement to be duly executed and delivered by their
respective duly authorized officers as of the Effective Date.
COMDISCO, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: President, Availability Solutions
-----------------------------------
NETSOLVE, INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: VP Finance and CFO
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17
