PURCHASE AGREEMENT
BETWEEN
NETSCAPE COMMUNICATIONS CORPORATION
AND
GE INFORMATION SERVICES, INC.
CONCERNING ACTRA BUSINESS SYSTEMS, L.L.C.
Dated as of November 6, 1997
TABLE OF CONTENTS
Page
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ARTICLE I - PURCHASE AND SALE OF MEMBERSHIP INTEREST . . . . . . . . . . . . 1
1.1 Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Consideration; Payment at Closing and on Effectiveness Date . . . . 2
1.4 No Fractional Shares. . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 Tax Consequences. . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.6 Delivery of Certificates. . . . . . . . . . . . . . . . . . . . . . 3
1.7 Legend on Certificates. . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF XXXX. . . . . . . . . . . . . 3
2.1 Organization, Standing and Power. . . . . . . . . . . . . . . . . . 3
2.2 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Ownership of Membership Interest. . . . . . . . . . . . . . . . . . 4
2.4 Absence of Claims by XXXX . . . . . . . . . . . . . . . . . . . . . 4
2.5 No Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.6 Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.7 Investment Representations. . . . . . . . . . . . . . . . . . . . . 5
2.8 Other Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF NETSCAPE . . . . . . . . . . 6
3.1 Organization, Standing and Power. . . . . . . . . . . . . . . . . . 6
3.2 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.3 Capital Structure . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.4 No Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.5 Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.6 SEC Documents; Netscape Financial Statements. . . . . . . . . . . . 8
3.7 S-3 Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.8 No Material Adverse Change. . . . . . . . . . . . . . . . . . . . . 8
3.9 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV - CONDUCT PRIOR TO THE CLOSING. . . . . . . . . . . . . . . . . . 9
4.1 No Solicitation . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE V - ADDITIONAL AGREEMENTS. . . . . . . . . . . . . . . . . . . . . . 9
5.1 Sale and Registration of Shares; Shareholder Matters. . . . . . . . 9
5.2 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . .10
5.3 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
5.4 Public Disclosure . . . . . . . . . . . . . . . . . . . . . . . . .11
5.5 Reasonable Efforts; Further Assurances. . . . . . . . . . . . . . .11
5.6 Notification of Certain Matters . . . . . . . . . . . . . . . . . .11
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TABLE OF CONTENTS
(CONTINUED)
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5.7 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
5.8 Nasdaq National Market Listing. . . . . . . . . . . . . . . . . . .11
5.9 Additional Documents. . . . . . . . . . . . . . . . . . . . . . . .11
5.10 Registration Rights . . . . . . . . . . . . . . . . . . . . . . . .12
5.11 Access to Books and Records . . . . . . . . . . . . . . . . . . . .12
5.12 Nonsolicitation of Employees. . . . . . . . . . . . . . . . . . . .12
5.13 Mutual Release. . . . . . . . . . . . . . . . . . . . . . . . . . .12
ARTICLE VI - CONDITIONS TO THE ACQUISITION . . . . . . . . . . . . . . . . .13
6.1 Conditions to Obligations of Each Party to Effect the Acquisition .13
6.2 Additional Conditions to Obligations of XXXX. . . . . . . . . . . .13
6.3 Additional Conditions to the Obligations of Netscape. . . . . . . .14
ARTICLE VII - DISPUTE RESOLUTION . . . . . . . . . . . . . . . . . . . . . .15
7.1 Resolution of Disputes; Mediation . . . . . . . . . . . . . . . . .15
ARTICLE VIII - TERMINATION, AMENDMENT AND WAIVER . . . . . . . . . . . . . .16
8.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
8.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . .16
8.3 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
8.4 Extension; Waiver . . . . . . . . . . . . . . . . . . . . . . . . .17
ARTICLE IX - GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . .17
9.1 Survival of Representations and Warranties. . . . . . . . . . . . .17
9.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
9.3 Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . .18
9.4 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . .18
9.5 Entire Agreement; Assignment. . . . . . . . . . . . . . . . . . . .18
9.6 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . .18
9.7 Other Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . .19
9.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . .19
9.9 No Third Party Beneficiaries. . . . . . . . . . . . . . . . . . . .19
9.10 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . .19
9.11 Specific Performance. . . . . . . . . . . . . . . . . . . . . . . .19
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INDEX OF EXHIBITS
EXHIBIT DESCRIPTION
------- -----------
Exhibit A Logistic Tracking System Source Code License Agreement
Exhibit B Form of Xxxx of Sale and Assignment
Exhibit C Form of Declaration of Registration Rights
Exhibit D Software Distribution Agreement
Exhibit E Form of Legal Opinion of Counsel to Netscape
Exhibit F Form of Legal Opinion of Counsel to XXXX
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PURCHASE AGREEMENT
This PURCHASE AGREEMENT (this "AGREEMENT") is made and entered into as of
November 6, 1997 between Netscape Communications Corporation, a Delaware
corporation ("NETSCAPE"), and GE Information Services, Inc., a Delaware
corporation ("XXXX").
RECITALS
A. The Boards of Directors of each of Netscape and XXXX believe it is in
their respective best interests that Netscape acquire (the "ACQUISITION") and
that XXXX sell XXXX'x entire Membership Interest (as defined below) in Actra
Business Systems, L.L.C., a Delaware limited liability company ("ACTRA"). For
purposes of this Agreement, "Membership Interest" shall mean XXXX'x limited
liability company ownership interest in Actra.
B. In connection with the Acquisition, Netscape and XXXX desire to
enter into a source code licensing agreement.
C. Netscape and XXXX desire to make certain representations and
warranties and other agreements in connection with the Acquisition.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
intending to be legally bound hereby the parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF MEMBERSHIP INTEREST
1.1 PURCHASE AND SALE. At the Closing (as defined in Section 1.2
hereof) and subject to and upon the terms and conditions of this Agreement, XXXX
will sell, transfer, convey, assign and deliver to Netscape, and Netscape will
purchase and acquire from XXXX, free and clear of any liens, claims, charges,
restrictions, pledges, security interests, options, mortgages, or other legal or
equitable encumbrances (collectively, "LIENS"), (i) all of XXXX'x right, title
and interest in and to the Membership Interest and (ii) certain rights to source
code (the "SOURCE CODE RIGHTS") for the Logistics Tracking System pursuant to
that certain Logistic Tracking System Source Code License Agreement (the
"LICENSE AGREEMENT") in the form attached hereto as EXHIBIT A. At the Closing,
XXXX will deliver to Netscape duly executed instruments of transfer and
assignment of its Membership Interest sufficient to vest in Netscape all right,
title and interest in the Membership Interest in accordance with the terms of
this Agreement; such transfer instruments to include a Xxxx of Sale and
Assignment in substantially the form of EXHIBIT B attached hereto.
1.2 CLOSING. Unless this Agreement is earlier terminated pursuant to
Section 8.1 hereof, the closing of the purchase and sale of the Membership
Interest (the "CLOSING") will take place as promptly as practicable, but no
later than five (5) business days, following satisfaction or waiver of the
conditions set forth in Article VI hereof, at the offices of Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx, unless another
place or time is agreed to by Netscape and XXXX. The date upon which the
Closing actually occurs is herein referred to as the "CLOSING DATE".
1.3 CONSIDERATION; PAYMENT AT CLOSING AND ON EFFECTIVENESS DATE.
(a) The number of shares of Netscape common stock ("NETSCAPE
COMMON STOCK") to be issued as consideration for the acquisition by Netscape of
the Membership Interest and the Source Code Rights shall be equal to the number
of shares (the "EFFECTIVENESS SHARE NUMBER"), rounded to the nearest whole
share, determined by dividing (A) $55,000,000 by (B) the average closing sale
price of a share of Netscape Common Stock, as reported on the Nasdaq National
Market for the twenty (20) most recent trading days ending on the third trading
day preceding the date of effectiveness of the Registration Statement (as
defined in Section 5.1(b)) (the "EFFECTIVENESS DATE").
(b) At the Closing, Netscape shall issue to XXXX a number of
shares of Netscape Common Stock, rounded to the nearest whole share and subject
to adjustment as provided in Section 1.3 (c) below, equal to (A) $55,000,000
DIVIDED by (B) the average closing sale price of a share of Netscape Common
Stock, as reported on the Nasdaq National Market for the twenty (20) most recent
trading days ending on the third trading day preceding the Closing Date (the
"CLOSING SHARE NUMBER").
(c) On the Effectiveness Date, the parties shall adjust the
Closing Share Number as follows:
(i) if the Closing Share Number is greater than the
Effectiveness Share Number, XXXX shall surrender to Netscape for cancellation on
the Closing Date a number of shares of Netscape Common Stock equal to the excess
of the Closing Share Number over the Effectiveness Share Number; or
(ii) if the Effectiveness Share Number is greater than
the Closing Share Number, Netscape shall issue to XXXX a number of shares of
Netscape Common Stock equal to the excess of the Effectiveness Share Number over
the Closing Share Number (the "ADDITIONAL SHARE NUMBER").
(d) The total number of shares Netscape Common Stock issued by
Netscape to XXXX following the adjustment pursuant to Section 1.3(c) shall be
allocated 90.909% as purchase price for the Membership Interest and 9.091% as
license fees for the Source Code Rights.
1.4 NO FRACTIONAL SHARES. No fraction of a share of Netscape Common
Stock will be issued to XXXX, and no payment will be made by Netscape to XXXX
for any fraction of a share of Netscape Common Stock.
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1.5 TAX CONSEQUENCES. The Acquisition is intended by the parties to
be treated as a taxable purchase and sale of the Membership Interest for all
income tax purposes resulting in the termination of Actra under
Section 708(b)(1)(A) of the Internal Revenue Code of 1986, as amended (the
"CODE"). Netscape and XXXX shall each bear and pay their respective federal,
state, local and foreign taxes that may become payable in connection with XXXX'x
sale of the Membership Interest to Netscape; provided, however, that XXXX shall
bear and pay any and all transfer taxes with respect to the sale of the
Membership Interest.
1.6 DELIVERY OF CERTIFICATES.
(a) At the Closing, Netscape shall, or shall cause its transfer
agent to, deliver to XXXX certificate(s) representing the number of whole shares
of Netscape Common Stock equal to the Closing Share Number pursuant to
Section 1.3(b).
(b) On the Effectiveness Date, Netscape shall, or shall cause
its transfer agent to (i) deliver to XXXX a certificate or certificates
representing the Additional Share Number, if Section 1.3(c)(ii) is applicable or
(ii) deliver to XXXX a certificate or certificates representing the
Effectiveness Share Number upon surrender thereof by XXXX of a certificate or
certificates equal to the Closing Share Number, if Section 1.3(c)(i) is
applicable.
1.7 LEGEND ON CERTIFICATES. The certificate or certificates issued
to XXXX pursuant to Section 1.3 and in accordance with Section 1.6 shall bear a
restrictive legend indicating that the shares represented by such certificate(s)
shall not be transferred prior to the Effectiveness Date.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF XXXX
XXXX hereby represents and warrants to Netscape, subject to such exceptions
as are specifically and accurately disclosed in the disclosure schedule
(referencing the appropriate section and paragraph numbers) supplied by XXXX to
Netscape (the "XXXX DISCLOSURE SCHEDULE") and dated as of the date hereof, as
follows:
2.1 ORGANIZATION, STANDING AND POWER. XXXX is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. XXXX has the corporate power to own its properties and to carry on
its business as now being conducted.
2.2 AUTHORITY. XXXX has all requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of XXXX, and no further action is required on the
part of XXXX to authorize the Agreement and the transactions contemplated
hereby. This Agreement has been duly executed and delivered by XXXX and,
assuming the due authorization,
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execution and delivery by Netscape, constitutes the valid and binding obligation
of XXXX, enforceable in accordance with its terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors' rights generally and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
2.3 OWNERSHIP OF MEMBERSHIP INTEREST. XXXX is the legal and
beneficial owner of the Membership Interest, and such Membership Interest is to
be sold pursuant to this Agreement. Other than arising under or pursuant to the
Formation and Limited Liability Company Agreement between XXXX and Netscape,
dated March 26, 1996, such Membership Interest is not subject to any Liens or to
any rights of first refusal of any kind, and XXXX has not granted any rights to
purchase such Membership Interest to any other person or entity. XXXX has the
sole right to transfer such Membership Interest to Netscape. To the knowledge
of XXXX, such Membership Interest constitutes all of the ownership rights in
Actra other than Netscape's (or any assignee or transferee of Netscape)
ownership rights in Actra. Upon the Closing, Netscape will receive good and
marketable title to XXXX'x Membership Interest, subject to no Liens retained,
granted or permitted by XXXX. XXXX has not engaged in any sale or other
transfer of the Membership Interest in contemplation of the Acquisition or
otherwise.
2.4 ABSENCE OF CLAIMS BY XXXX. XXXX does not have any present claim
against Actra nor does it have any present intent to pursue any future claim
against Actra, whether contingent or unconditional, fixed or variable under any
contract or on any other legal basis whatsoever.
2.5 NO CONFLICT. Subject to satisfaction of the conditions set forth
in Article VI, the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby will not conflict with or result in any
violation of any material statute, law, rule, regulation, judgment, order,
decree or ordinance applicable to XXXX or its properties or assets, or conflict
with or result in any breach or default (with or without notice or lapse of
time, or both) (any such event, a "CONFLICT"), under (i) any provision of the
Certificate of Incorporation or Bylaws of XXXX or (ii) any material agreement,
contract, note, mortgage, indenture, lease, instrument, permit, concession,
franchise or license to which XXXX is a party or by which XXXX or its properties
or assets may be bound or affected, which conflict, breach or default could
reasonably be expected to adversely affect the ability of XXXX to consummate the
transactions contemplated hereby.
2.6 CONSENTS. No consent, waiver, approval, order or authorization
of, or registration, declaration or filing with, any court, administrative
agency or commission or other federal, state, county, local or foreign
governmental authority, instrumentality, agency or commission (each a
"GOVERNMENTAL ENTITY") or any third party, including a party to any agreement
with XXXX (so as not to trigger any Conflict), is required by or with respect to
XXXX in connection with the execution and delivery of this Agreement, or the
consummation by XXXX of the transactions contemplated hereby, except for
(i) such consents, waivers, approvals, orders, authorizations, registrations,
qualifications, declarations and filings as may be required under applicable
securities laws, and (ii) such filings as are required under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
ACT").
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2.7 INVESTMENT REPRESENTATIONS.
(a) INVESTMENT INTENT. XXXX is an "accredited investor" within
the meaning of Rule 501(a) under the Securities Act of 1933, as amended (the
"SECURITIES ACT"). XXXX is acquiring the Netscape Common Stock for XXXX'x own
account for investment, and not for, with a view to, or in connection with the
resale or distribution thereof, except pursuant to registration under the
Securities Act. XXXX does not presently have an agreement or arrangement with
any person or firm to sell, pledge or otherwise transfer the Netscape Common
Stock. XXXX has adequate means of providing for XXXX'x current needs and
possible contingencies and has no need for liquidity in the investment.
(b) INFORMATION ABOUT NETSCAPE. To the extent XXXX has
determined it to be appropriate, XXXX has consulted XXXX'x attorney, accountant,
and other agents with respect to XXXX'x acquisition of the Netscape Common
Stock. XXXX has fully investigated Netscape and its business and financial
condition and has knowledge of its current and anticipated activities. XXXX
acknowledges that Netscape has granted XXXX and XXXX'x agents access to all
information about Netscape that they have requested in order to verify the
accuracy of the information in such documents and has offered XXXX and XXXX'x
agents access to all further information that XXXX and XXXX'x agents have deemed
relevant to an investment decision with respect to the Netscape Common Stock.
XXXX further acknowledges that XXXX is capable of evaluating the merits and
risks of the prospective investment in the Netscape Common Stock and that XXXX
and XXXX'x agents have had the opportunity to ask questions of, and receive
answers from, representatives of Netscape concerning the terms and conditions of
the offering of the Netscape Common Stock.
(c) HIGH RISK. XXXX realizes that investment in the Netscape
Common Stock involves a high degree of risk. XXXX is able to bear the risk of
the investment, to hold the Netscape Common Stock for an indefinite period of
time and to suffer a complete loss of the investment.
(d) SECURITIES NOT REGISTERED. XXXX understands that the
Securities have not been registered under the Securities Act in reliance upon
exemptions therefrom.
(e) HELD INDEFINITELY. XXXX further understands that the
Netscape Common Stock may be disposed of only if subsequently registered under
the Securities Act or if an exemption from registration is otherwise available.
In addition, XXXX understands that the certificate(s) evidencing the Netscape
Common Stock will be imprinted with a legend which prohibits the transfer of the
Netscape Common Stock unless it is registered or such registration is not
required in the opinion of counsel satisfactory to Netscape.
(f) RULE 144. XXXX is familiar with the provisions of Rule 144
promulgated under the Securities Act ("RULE 144"), which, in substance, permits
limited public resale of "restricted securities" acquired, directly or
indirectly, from the issuer thereof, in a non-public offering subject to the
satisfaction of certain conditions, including, among other things: (i) the
availability of certain public information about Netscape, (ii) the resale
occurring not less than one year after the party has purchased and made full
payment for, within the meaning of Rule 144, the securities to be
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sold; and, in the case of an affiliate, or of a non-affiliate who has held the
securities less than two years, (iii) the sale being made through a broker in an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT")) and the amount of securities being sold during any
three month period not exceeding the specified limitations stated therein, if
applicable.
(g) NO PUBLIC MARKET. XXXX further understands that at the time
XXXX wishes to sell the Netscape Common Stock there may be no public market upon
which to make such a sale, and that, even if such a public market then exists,
Netscape may not be satisfying the current public information requirements of
Rule 144, and that, in such event, XXXX would be precluded from selling the
Netscape Common Stock under Rule 144 even if the one-year minimum holding period
had been satisfied.
(h) SUBSTANTIAL BURDEN OF PROOF. XXXX further understands that
in the event all of the applicable requirements of Rule 144 are not satisfied,
registration under the Securities Act, compliance with Regulation A under the
Securities Act, or some other registration exemption will be required; and that,
notwithstanding the fact that Rule 144 is not exclusive, the staff of the SEC
has expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant to
Rule 144 will have a substantial burden of proof in establishing that an
exemption from registration is available for such offers or sales, and that such
persons and their respective brokers who participate in such transactions do so
at their own risk.
2.8 OTHER KNOWLEDGE. To the actual knowledge of XXXX'x Management,
XXXX is not intentionally withholding information with regard to any facts or
circumstances regarding Actra's internal business operations which XXXX
reasonably believes are not known to Netscape, the occurrence or existence of
which would have a material adverse effect on the business assets (including
intangible assets), liabilities or financial condition of Actra. "XXXX'x
Management" shall be defined as XXXX'x Vice President of Finance, Vice President
of Business Development and Vice President of Product Development.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF NETSCAPE
Netscape hereby represents and warrants to XXXX, subject to such exceptions
as are specifically and accurately disclosed in the disclosure schedule
(referencing the appropriate section and paragraph numbers) supplied by Netscape
to XXXX (the "NETSCAPE DISCLOSURE SCHEDULE") and dated as of the date hereof, as
follows:
3.1 ORGANIZATION, STANDING AND POWER. Netscape is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Netscape has the corporate power to own its properties and to carry
on its business as now being conducted and is duly qualified
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to do business and is in good standing as a foreign corporation in each
jurisdiction in which the failure to be so qualified would have a material
adverse effect on Netscape.
3.2 AUTHORITY. Netscape has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of Netscape and no further action
is required on the part of Netscape to authorize this Agreement and the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Netscape and, assuming the due authorization, execution and
delivery by XXXX, constitutes the valid and binding obligation of Netscape,
enforceable in accordance with its terms except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally and (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies.
3.3 CAPITAL STRUCTURE. The authorized stock of Netscape consists of
200,000,000 shares of Common Stock, of which 90,652,050 shares were issued and
outstanding as of October 31, 1997, and 5,000,000 shares of Preferred Stock,
none of which is issued or outstanding. At the close of business on October 31,
1997, 12,348,312 shares of Netscape Common Stock were subject to issuance upon
the exercise of outstanding vested and unvested stock options ("NETSCAPE
RIGHTS"). No shares of Netscape Common Stock were held by Netscape in its
treasury. All the outstanding shares of Netscape Common Stock are validly
issued, fully paid and nonassessable. The shares of Netscape Common Stock
issuable in connection with the Acquisition have been duly authorized and
reserved for issuance and, when issued in accordance with the terms of this
Agreement, will be validly issued, fully paid and nonassessable.
3.4 NO CONFLICT. Subject to satisfaction of the conditions set forth
in Article VI, the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby, will not conflict with or result in any
violation of any material statute, law, rule, regulation, judgment, order,
decree or ordinance applicable to Netscape or its properties or assets, or
conflict with or result in any breach or default (with or without notice or
lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
(any such event, a "NETSCAPE CONFLICT") under, (i) any provision of the
Certificate of Incorporation or Bylaws of Netscape or (ii) any material
agreement, contract, note, mortgage, indenture, lease, instrument, permit,
concession, franchise or license to which Netscape is a party or by which
Netscape or its properties or assets may be bound or affected, which conflict,
breach or default could reasonably be expected to have a material adverse effect
on Netscape.
3.5 CONSENTS. No consent, waiver, approval, order or authorization
of, or registration, declaration or filing with, any Governmental Entity or any
third party, including a party to any agreement with Netscape (so as not to
trigger any Netscape Conflict), is required by or with respect to Netscape in
connection with the execution and delivery of this Agreement, or the
consummation by Netscape of the transactions contemplated hereby, except for
(i) such consents, waivers,
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approvals, orders, authorizations, registrations, qualifications, declarations
and filings as may be required under applicable securities laws, and (ii) such
filings as are required under the HSR Act.
3.6 SEC DOCUMENTS; NETSCAPE FINANCIAL STATEMENTS. Netscape has
furnished or made available to XXXX true and complete copies of all reports or
registration statements filed by it with the SEC under the Exchange Act for all
periods since January 1, 1997, all in the form so filed (all of the foregoing
being collectively referred to as the "SEC DOCUMENTS"). As of their respective
filing dates, the SEC Documents complied in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
none of the SEC Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances in which they
were made, not misleading, except to the extent corrected by a document
subsequently filed with the SEC. The financial statements of Netscape,
including the notes thereto, included in the SEC Documents (the "NETSCAPE
FINANCIAL STATEMENTS") comply as to form in all material respects with
applicable accounting requirements and with the published rules and regulations
of the SEC with respect thereto, have been prepared in accordance with GAAP
consistently applied (except as may be indicated in the notes thereto or, in the
case of unaudited statements, as permitted by Form 10-Q of the SEC) and present
fairly the consolidated financial position of Netscape at the dates thereof and
the consolidated results of its operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal audit
adjustments). There has been no change in Netscape accounting policies except
as described in the notes to the Netscape Financial Statements.
3.7 S-3 ELIGIBILITY. As of the date hereof, Netscape meets, and as
of the Closing Date, Netscape will meet, all of the conditions necessary for the
use of Form S-3 for the registration of the Netscape Common Stock as
contemplated hereby and in the Declaration of Registration Rights (as defined
below).
3.8 NO MATERIAL ADVERSE CHANGE. Since the date of the balance sheet
included in the Netscape's most recently filed report on Form 10-Q or Form 10-K,
Netscape has conducted its business in the ordinary course and there has not
occurred: (a) any material adverse change in the financial condition,
liabilities, assets or business of Netscape; (b) any amendment or change in the
Certificate of Incorporation or Bylaws of Netscape, or (c) any damage to,
destruction or loss of any assets of the Netscape (whether or not covered by
insurance) that materially and adversely affects the financial condition or
business of Netscape.
3.9 LITIGATION. There is no action, suit, proceeding, claim,
arbitration or investigation pending, or as to which Netscape has received any
notice of assertion against Netscape, which (i) in any manner challenges or
seeks to prevent, enjoin, alter or materially delay any of the transactions
contemplated by this Agreement or (ii) has not previously been disclosed in SEC
Documents or is not currently required to be disclosed in any filings under the
Exchange Act.
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ARTICLE IV
CONDUCT PRIOR TO THE CLOSING
4.1 NO SOLICITATION.
(a) From and after the date of this Agreement until the earlier
of (i) the Closing or (ii) termination of this Agreement pursuant to
Section 8.1, XXXX will not, directly or indirectly through any of its directors,
officers, employees, representatives, investment bankers, agents or affiliates
(i) solicit or encourage submission of any inquiries, proposals or offers by any
person, entity or group (other than Netscape, and its affiliates, agents and
representatives), or (ii) participate in any discussions or negotiations with,
or disclose any information concerning Actra to, or afford any access to the
properties, books or records of Actra to, or otherwise assist, facilitate or
encourage, or enter into any agreement or understanding with, any person, entity
or group (other than Netscape and its affiliates, agents and representatives),
in connection with any Acquisition Proposal. For the purposes of this
Agreement, an "ACQUISITION PROPOSAL" shall mean any inquiry or proposal relating
to any sale or transfer of an ownership interest in Actra. Upon execution of
this Agreement, XXXX does not have, or will immediately cease any and all,
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing.
(b) XXXX will (i) notify Netscape promptly (and in any event
within 24 hours) if any proposal is made or any information or access is
requested in connection with an Acquisition Proposal and (ii) promptly (and in
any event within 24 hours) communicate to Netscape in reasonable detail the
terms and conditions of any such Acquisition Proposal and the identity of the
offeror.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 SALE AND REGISTRATION OF SHARES; SHAREHOLDER MATTERS.
(a) SALE OF SHARES. The parties hereto acknowledge and agree
that the shares of Netscape Common Stock issuable to XXXX pursuant to Section
1.3 and in accordance with the provisions of Section 1.6 hereof, shall
constitute "restricted securities" within the meaning of the Securities Act.
The certificates for shares of Netscape Common Stock to be issued in the
Acquisition shall bear appropriate legends to identify such privately placed
shares as being restricted under the Securities Act, to comply with applicable
state securities laws. It is acknowledged and understood that Netscape is
relying upon the written representations made by XXXX in Section 2.7 hereof in
making such private placement.
(b) REGISTRATION STATEMENT ON FORM S-3. Within seven (7) days
after the Closing Date, Netscape will file a Registration Statement on Form S-3
(the "REGISTRATION STATEMENT") with
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the SEC covering the resale of the shares of Netscape Common Stock issued to
XXXX pursuant hereto; provided, however, that any such registration shall be
subject to the terms and conditions set forth in the Declaration of Registration
Rights attached hereto as EXHIBIT C.
(c) ADDITIONAL ASSURANCES. At the request of Netscape, XXXX
shall execute and deliver to Netscape such instruments and do and perform such
acts and things as may be necessary or desirable for complying with all
applicable securities laws and state corporate laws in connection with the
transactions contemplated hereby.
5.2 CONFIDENTIALITY. Each of the parties hereto hereby agrees to
keep confidential such information or knowledge obtained pursuant to the
negotiation and execution of this Agreement or the effectuation of the
transactions contemplated hereby; provided, however, that the foregoing shall
not apply to information or knowledge which (a) a party can demonstrate was
already lawfully in its possession prior to the disclosure thereof by the other
party, (b) is generally known to the public and did not become so known through
any violation of law, (c) became known to the public through no fault of such
party, (d) is later lawfully acquired by such party from other sources, (e) is
required to be disclosed by order of court or government agency with subpoena
powers or (f) which is disclosed in the course of any litigation between any of
the parties hereto. The provisions of this Section 5.2 shall in no way affect
the rights or obligations of any party concerning confidentiality under any
other agreement among such parties and/or Actra.
5.3 EXPENSES.
(a) Pending the Closing, XXXX shall continue to fund its pro
rata share of any additional capital contributions approved by XXXX and Netscape
pursuant to Section 3.02 of the Formation and Limited Liability Company
Agreement between XXXX and Netscape dated March 26, 1996. XXXX agrees that it
will not unreasonably withhold its consent to any additional capital
contribution that is reasonably required pursuant to the 1997 operating budget
for Actra previously adopted by XXXX and Netscape. Notwithstanding the
foregoing, in no event will XXXX be required to approve additional capital
contributions by XXXX of more than $500,000 in the aggregate between the date
hereof and the date of the Closing. XXXX'x payment obligation of $500,000
pursuant to that certain Distribution Agreement between XXXX and Actra dated
August 1, 1997, is independent of and will not be affected by this
Section 5.3(a).
(b) Except as forth in this Section 5.3 and in Section 5.7, all
fees and expenses incurred in connection with the Acquisition, including,
without limitation, all legal, accounting, financial advisory, consulting and
all other fees and expenses of third parties ("THIRD PARTY EXPENSES"), shall be
borne by the party that incurred such Third Party Expenses. In addition, if the
Acquisition is consummated, XXXX agrees to pay fifty percent (50%) of the
reasonable out-of-pocket legal fees and expenses incurred by Actra in connection
with the Formation Agreement dated October 8, 1997 and the conversion of Actra
into a Subchapter C (of the Code) corporation as contemplated therein.
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5.4 PUBLIC DISCLOSURE. Unless otherwise required by law (including,
without limitation, federal and state securities laws) or by the rules and
regulations of The Nasdaq Stock Market, Inc. or any applicable stock exchange,
no disclosure (whether or not in response to an inquiry) of the subject matter
of this Agreement shall be made prior to the effectiveness of the Registration
Statement described in Section 5.1(b) by any party hereto unless approved by
Netscape and XXXX prior to release, provided that such approval shall not be
unreasonably withheld and once given shall continue in effect.
5.5 REASONABLE EFFORTS; FURTHER ASSURANCES. Subject to the terms and
conditions provided in this Agreement, each of the parties hereto shall use its
reasonable efforts to ensure that its representations and warranties remain true
and correct in all material respects, and to take promptly, or cause to be
taken, all actions, and to do promptly, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated hereby, to obtain
all necessary waivers, consents and approvals, to effect all necessary
registrations and filings, and to remove any injunctions or other impediments or
delays, legal or otherwise, in order to consummate and make effective the
transactions contemplated by this Agreement for the purpose of securing to the
parties hereto the benefits contemplated by this Agreement; provided that
Netscape shall not be required to agree to any divestiture by Netscape of Actra
or any of Netscape's subsidiaries or affiliates of shares of capital stock or of
any business, assets or property of Netscape or its subsidiaries or affiliates
or Actra or its affiliates, or the imposition of any material limitation on the
ability of any of them to conduct their businesses or to own or exercise control
of such assets, properties and stock.
5.6 NOTIFICATION OF CERTAIN MATTERS. XXXX shall give prompt notice
to Netscape, and Netscape shall give prompt notice to XXXX, of (i) the
occurrence or non-occurrence of any event, the occurrence or non-occurrence of
which is likely to cause any representation or warranty of XXXX or Netscape, as
the case may be, contained in this Agreement to be untrue or inaccurate at or
prior to the Closing, and (ii) any failure of XXXX or Netscape, as the case may
be, to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder; provided, however, that the delivery
of any notice pursuant to this Section 5.6 shall not limit or otherwise affect
any remedies available to the party receiving such notice.
5.7 TAX MATTERS. Netscape shall be responsible for filing all
federal, state, local and foreign income tax returns of Actra for the short tax
year ending on the Closing Date. Such returns shall be prepared in a manner
consistent with applicable law and past practices, if any, and the costs of such
returns shall be borne equally by Netscape and XXXX.
5.8 NASDAQ NATIONAL MARKET LISTING. Netscape shall authorize for
listing on the Nasdaq National Market the shares of Netscape Common Stock
issuable, and those required to be reserved for issuance, in connection with the
Acquisition, upon official notice of issuance.
5.9 ADDITIONAL DOCUMENTS. Each party hereto, at the request of the
other party hereto, shall execute and deliver such other instruments as may be
necessary or desirable for effecting completely the consummation of this
Agreement and the transactions contemplated hereby.
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5.10 REGISTRATION RIGHTS. XXXX agrees to abide by the provisions
contained in the Declaration of Registration Rights attached hereto as EXHIBIT C
(the "DECLARATION OF REGISTRATION RIGHTS").
5.11 ACCESS TO BOOKS AND RECORDS. Following the Closing, upon
reasonable notice, Netscape shall cause Actra to provide XXXX with reasonable
access during normal business hours to all books and records and with such
cooperation, assistance and access to Actra personnel as XXXX may reasonably
request for the purpose of permitting XXXX to obtain any information with
respect to taxes or any other reasonable purpose. Netscape shall also cause
Actra to provide XXXX with such cooperation and information as XXXX may
reasonably request with respect to the filing of any tax return, amended tax
return or claim for refund, determining a liability for taxes or a right to a
refund of taxes or conducting any audit or any other procedure in respect of
taxes. XXXX shall be required to reimburse Actra for any out-of-pocket expenses
incurred by Actra in connection with performing the services requested by XXXX
under this Section 5.11. Netscape agrees to cause Actra to retain all material
records or other documents relating to tax matters of Actra and its members for
taxable periods through the date of Closing until six months after the
expiration of the longest applicable statute of limitations or for such longer
period as may be reasonably requested by XXXX.
5.12 NONSOLICITATION OF EMPLOYEES.
(a) Unless otherwise agreed to by XXXX and Netscape, for a
period of one year following the Closing Date, Netscape shall not, nor shall it
permit Actra or any of its affiliates or any employee, officer, director,
consultant or agent of Netscape, Actra or any of their affiliates to, recruit or
attempt to recruit for the purposes of employment by or provision of services to
Netscape, Actra or any of their affiliates, any person that is employed by XXXX
currently or on the date of Closing and with whom Netscape or Actra had contact
as a result of XXXX'x ownership of the Membership Interest and the transactions
related thereto.
(b) Unless otherwise agreed to by XXXX and Netscape, for a
period of one year following the Closing Date, XXXX shall not, nor shall it
permit any of its affiliates or any employee, officer, director, consultant or
agent of XXXX or any of its affiliates to, recruit or attempt to recruit for the
purposes of employment by or provision of services to XXXX or any of its
affiliates, any person that is employed by Netscape or Actra currently or on the
date of Closing and with whom XXXX had contact as a result of XXXX'x ownership
of the Membership Interest and the transactions related thereto.
5.13 MUTUAL RELEASE. Each of Netscape and XXXX does hereby fully,
irrevocably and unconditionally release and forever discharge the other party
and its affiliates, and such other party's and its affiliates' successors,
assigns, directors, officers, employees and agents (collectively, the "Released
Parties"), of and from any and all obligations, debts, causes of action, suits,
controversies, damages and any and all claims, demands and liabilities
whatsoever, both in law and at equity, known or unknown, that such party has as
of the date hereof or will have as of the Closing Date or may ever have had as
of or prior to the date hereof against the Released Parties arising out of or
relating in any way to the Formation and Limited Liability Company Agreement,
dated March 26,
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1996, and the transactions contemplated thereby or related thereto, including
any claims arising out of Netscape's and XXXX'x joint ownership of Actra.
Notwithstanding the foregoing, this release (a) shall not be applicable if this
Agreement is terminate pursuant to Section 8.1 and (b) shall not relieve
Netscape or XXXX from any of the covenants and obligations pursuant to the
agreements set forth herein or the Distribution Agreement between XXXX and Actra
or the Global System Integrator Agreement between Netscape and XXXX.
ARTICLE VI
CONDITIONS TO THE ACQUISITION
6.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY TO EFFECT THE
ACQUISITION. The respective obligations of each party to this Agreement to
effect the Acquisition shall be subject to the satisfaction at or prior to the
Closing of the following conditions:
(a) GOVERNMENT APPROVALS. All approvals of governments and
governmental agencies necessary to consummate the transactions hereunder shall
have been received.
(b) NO INJUNCTIONS OR RESTRAINTS; ILLEGALITY. No temporary
restraining order, preliminary or permanent injunction or other order issued by
any court of competent jurisdiction or other legal or regulatory restraint or
prohibition preventing the consummation of the Acquisition shall be in effect.
(c) NASDAQ LISTING. The shares of Netscape Common Stock
issuable to XXXX pursuant to this Agreement and such other shares required to be
reserved for issuance in connection with the Acquisition shall have been
authorized for listing on the Nasdaq National Market upon official notice of
issuance.
(d) LOGISTICS TRACKING SYSTEM SOURCE CODE LICENSE
AGREEMENT. XXXX and Netscape shall have entered into the License Agreement in
the form of EXHIBIT A hereto.
(e) SOFTWARE DISTRIBUTION AGREEMENT. Netscape and XXXX shall
have entered into a Software Distribution Agreement in the form of EXHIBIT D
attached hereto.
6.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF XXXX. The obligations of
XXXX to consummate the Acquisition and the transactions contemplated by this
Agreement shall be subject to the satisfaction at or prior to the Closing of
each of the following conditions, any of which may be waived, in writing,
exclusively by XXXX:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Netscape contained in this Agreement shall be true and correct in
all material respects on and as of the Closing Date, except for changes
contemplated by this Agreement and except for those representations and
warranties which address matters only as of a particular date (which shall
remain
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true and correct as of such date), with the same force and effect as if made on
and as of the Closing Date, except, in all such cases, for such breaches,
inaccuracies or omissions of such representations and warranties which have
neither had nor reasonably would be expected to have a material adverse effect
on Netscape; and XXXX shall have received a certificate to such effect signed on
behalf of Netscape by a duly authorized officer of Netscape.
(b) AGREEMENTS AND COVENANTS. Netscape shall have performed or
complied in all material respects with all agreements and covenants required by
this Agreement to be performed or complied with by it on or prior to the
Closing, and XXXX shall have received a certificate to such effect signed by a
duly authorized officer of Netscape.
(c) THIRD PARTY CONSENTS. XXXX shall have been furnished with
evidence satisfactory to it that Netscape has obtained the consents, approvals
and waivers set forth in Section 3.4 of the Netscape Disclosure Schedule.
(d) LEGAL OPINION. XXXX shall have received a legal opinion
from Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, counsel to Netscape, in substantially the
form attached hereto as EXHIBIT E.
6.3 ADDITIONAL CONDITIONS TO THE OBLIGATIONS OF NETSCAPE. The
obligations of Netscape to consummate the Acquisition and the transactions
contemplated by this Agreement shall be subject to the satisfaction at or prior
to the Closing of each of the following conditions, any of which may be waived,
in writing, exclusively by Netscape:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of XXXX contained in this Agreement shall be true and correct in all
material respects on and as of the Closing Date, except for changes contemplated
by this Agreement and except for those representations and warranties which
address matters only as of a particular date (which shall remain true and
correct as of such date), with the same force and effect as if made on and as of
the Closing Date, except, in all such cases, for such breaches, inaccuracies or
omissions of such representations and warranties which have neither had nor
reasonably would be expected to have a material adverse effect on Actra or XXXX;
and Netscape shall have received a certificate to such effect signed on behalf
of XXXX by a duly authorized officer of XXXX.
(b) AGREEMENTS AND COVENANTS. XXXX shall have performed or
complied in all material respects with all agreements and covenants required by
this Agreement to be performed or complied with by it on or prior to the
Closing, and Netscape shall have received a certificate to such effect signed by
a duly authorized officer of XXXX.
(c) THIRD PARTY CONSENTS. Netscape shall have been furnished
with evidence satisfactory to it that XXXX has obtained the consents, approvals
and waivers set forth in Section 2.5 of the XXXX Disclosure Schedule.
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(d) LEGAL OPINION. Netscape shall have received a legal opinion
from King & Spalding, legal counsel to XXXX or Xxxxx X. Xxxxxx, Vice President
and General Counsel of XXXX, in substantially the form attached hereto as
EXHIBIT F.
(e) RESIGNATION FROM MEMBERS COMMITTEE. The person appointed by
XXXX to the Members Committee of Actra shall have resigned from the Members
Committee effective upon the Closing.
ARTICLE VII
DISPUTE RESOLUTION
7.1 RESOLUTION OF DISPUTES; MEDIATION.
(a) Any claim, action, suit or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby shall be brought only in the
United States District Court for the District of Delaware or any court of the
State of Delaware, and each of the parties hereto hereby consents to the
jurisdiction of such courts (and of the appropriate appellate courts therefrom
in any such claim, action, suit or proceeding) and irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue of any such claim, action, suit or proceeding in any
such court or that any such claim, action, suit or proceeding which is brought
in any such court has been brought in an inconvenient forum. Subject to
applicable law, process in any such claim, action, suit or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing and subject to
applicable law, each party agrees that service of process on such party, as
provided in Section 9.2 shall be deemed effective service of process on such
party. Nothing herein shall affect the right of any party to serve legal
process in any other manner permitted by law or at equity. WITH RESPECT TO ANY
SUCH CLAIM, ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT, EACH OF THE PARTIES
HERETO IRREVOCABLY WAIVES AND RELEASES TO THE OTHER ITS RIGHT TO A TRIAL BY
JURY, AND AGREES THAT IT WILL NOT SEEK A TRIAL BY JURY IN ANY SUCH PROCEEDING.
(b) Before any party hereto initiates judicial proceedings in
respect of any action or matter relating to this Agreement or the transactions
contemplated hereby, that party shall first refer such matter to the Chief
Executive Officer of such party. Following such referral, the Chief Executive
Officers of Netscape and XXXX shall take all reasonable steps to resolve such
disagreement and shall negotiate in good faith with each other to such end. If
the disagreement is not resolved in the course of such negotiations between the
Chief Executive Officers of Netscape and XXXX, such Chief Executive Officers,
shall consult with a neutral third party mediator and shall use their best
reasonable efforts to procure a determination from such mediator within two
weeks of the date on which the mediator was first consulted. Unless the parties
agree to the contrary in writing, any advice or decision of the mediator shall
not be binding upon the parties.
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ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.1 TERMINATION. Except as provided in Section 8.2 below, this
Agreement may be terminated and the Acquisition abandoned at any time prior to
the Closing.
(a) by mutual written consent of XXXX and Netscape;
(b) by Netscape or XXXX if: (i) the Closing has not occurred
before 5:00 p.m. (Pacific time) on December 31, 1997 (provided that the right to
terminate this Agreement under this clause 8.1(b)(i) shall not be available to
any party whose willful failure to fulfill any obligation hereunder has been the
cause of, or resulted in, the failure of the Closing to occur on or before such
date); (ii) there shall be a final nonappealable order of a federal or state
court in effect preventing consummation of the Acquisition; or (iii) there shall
be any statute, rule, regulation or order enacted, promulgated or issued or
deemed applicable to the Acquisition by any Governmental Entity that would make
consummation of the Acquisition illegal;
(c) by Netscape if there shall be any action taken, or any
statute, rule, regulation or order enacted, promulgated or issued or deemed
applicable to the Acquisition, by any Governmental Entity, which would: (i)
prohibit Netscape's ownership or operation of all or any portion of the business
of Actra or (ii) compel Netscape to dispose of or hold separate all or a portion
of the business or assets of Actra as a result of the Acquisition;
(d) by Netscape, if it is not in material breach of its
obligations under this Agreement and there has been a breach of any
representation, warranty, covenant or agreement contained in this Agreement on
the part of XXXX and (i) such breach has not been cured within ten (10) business
days after written notice to XXXX (provided that, no cure period shall be
required for a breach which by its nature cannot be cured), and (ii) as a result
of such breach the conditions set forth in Section 6.3(a) or 6.3(b), as the case
may be, would not then be satisfied;
(e) by XXXX, if it is not in material breach of its obligations
under this Agreement and there has been a breach of any representation,
warranty, covenant or agreement contained in this Agreement on the part of
Netscape and (i) such breach has not been cured within ten (10) business days
after written notice to Netscape (provided that, no cure period shall be
required for a breach which by its nature cannot be cured), and (ii) as a result
of such breach the conditions set forth in Section 6.2(a) or 6.2(b), as the case
may be, would not then be satisfied.
8.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement as provided in Section 8.1, this Agreement shall forthwith become
void, and there shall be no liability or obligation on the part of either party,
or their respective officers, directors or shareholders, provided that each
party shall remain liable for any breaches of this Agreement prior to its
termination; and provided
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further that, the provisions of Sections 5.2, 5.3 and 5.4 and Articles VIII and
IX (other than Section 9.1) of this Agreement shall remain in full force and
effect and survive any termination of this Agreement.
8.3 AMENDMENT. This Agreement may be amended by the parties hereto
at any time by execution of an instrument in writing signed on behalf of each of
the parties hereto.
8.4 EXTENSION; WAIVER. At any time prior to the Closing, Netscape,
on the one hand, and XXXX, on the other, may, to the extent legally allowed,
(i) extend the time for the performance of any of the obligations of the other
party hereto, (ii) waive any inaccuracies in the representations and warranties
made to such party contained herein or in any document delivered pursuant
hereto, and (iii) waive compliance with any of the agreements or conditions for
the benefit of such party contained herein. Any agreement on the part of a
party hereto to any such extension or waiver shall be valid only if set forth in
an instrument in writing signed on behalf of such party.
ARTICLE IX
GENERAL PROVISIONS
9.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties in this Agreement shall survive the consummation of the
Acquisition and shall (except to the extent that survival is necessary to
effectuate the intent of such provisions) terminate twelve (12) months after the
Closing Date.
9.2 NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail (return receipt
requested) or sent via facsimile (with acknowledgment of complete transmission)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
(a) if to Netscape, to:
Netscape Communications Corporation
000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(b) if to XXXX, to:
GE Information Services, Inc.
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
9.3 INTERPRETATION. The words "include," "includes" and "including"
when used herein shall be deemed in each case to be followed by the words
"without limitation." The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
9.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
9.5 ENTIRE AGREEMENT; ASSIGNMENT. This Agreement, the Schedules and
Exhibits hereto or delivered herewith, and the documents and instruments and
other agreements among the parties hereto referenced herein: (a) constitute the
entire agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof; (b) are not intended to
confer upon any other person any rights or remedies hereunder; and (c) shall not
be assigned by operation of law or otherwise except as otherwise specifically
provided, except that Netscape may assign its rights and delegate its
obligations hereunder to its affiliates.
9.6 SEVERABILITY. In the event that any provision of this Agreement
or the application thereof becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to
replace such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve,
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to the extent possible, the economic, business and other purposes of such void
or unenforceable provision.
9.7 OTHER REMEDIES. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
9.8 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
Each of the parties hereto agrees that process may be served upon them in any
manner authorized by the laws of the State of Delaware for such persons and
waives and covenants not to assert or plead any objection which they might
otherwise have to such jurisdiction and such process.
9.9 NO THIRD PARTY BENEFICIARIES. This Agreement shall be binding
upon and inure solely to the benefit of the parties hereto and their permitted
assigns, and nothing herein, express or implied, is intended to or shall confer
upon any other person any legal or equitable right, benefit or remedy of any
nature whatsoever.
9.10 RULES OF CONSTRUCTION. The parties hereto agree that they have
been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
9.11 SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the United States
or any state having jurisdiction, this being in addition to any other remedy to
which they are entitled at law or in equity.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Netscape and XXXX have caused this Agreement to be
signed by their duly authorized respective officers, all as of the date first
written above.
NETSCAPE COMMUNICATIONS GE INFORMATION SERVICES, INC.
CORPORATION
By: /s/ Xxxxx X. X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
---------------------------------- ------------------------
Name: Xxxxx X. X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: Executive Vice President Title: Vice President
and Chief Executive Officer
[PURCHASE AGREEMENT]
OMITTED ATTACHMENTS TO THE PURCHASE AGREEMENT
The following attachments to the Purchase Agreement have been omitted
pursuant to Item 601(b)(2) of Regulation S-K. Netscape hereby undertakes to
provide to the Securities and Exchange Commission copies of such documents upon
request; provided, however, that Netscape reserves the right to request
confidential treatment for portions of any such documents.
ATTACHMENT DESCRIPTION
Exhibit A Logistic Tracking System Source Code License Agreement
Exhibit B Form of Xxxx of Sale and Assignment
Exhibit C Form of Declaration of Registration Rights. (filed hereto as
Exhibit 4.1 to this Form 8-K)
Exhibit D Software Distribution Agreement
Exhibit E Form of Legal Opinion of Counsel to Netscape
Exhibit F Form of Legal Opinion to Counsel of XXXX