AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS
BY AND AMONG
LUCENT TECHNOLOGIES INC.,
LUCENT TECHNOLOGIES MAQUILADORAS INC.,
each as Seller
AND
BEL FUSE INC.
as Buyer
Dated as of October 2, 1998
TABLE OF CONTENTS
1. Definitions
1.1 Defined Terms
1.2 Other Definitional and Interpretive Matters
2. Purchase and Sale of Assets
2.1 Purchased Assets
2.2 Excluded Assets
2.3 Purchase Price
2.4 Assumed Liabilities
2.5 Excluded Liabilities
2.6 Consent of Third Parties; Further Assurances
2.7 No Licenses
2.8 Bulk Sales Law
2.9 Taxes
2.10 Employees
2.11 Adjustments to Purchase Price
3. Representations and Warranties of Sellers
3.1 Organization and Authority
3.2 Authorization; Binding Obligations
3.3 No Violations
3.4 Assets
3.5 Personal Property
3.6 Compliance With Laws and Litigation; Environmental Matters
3.7 Contracts; Permits and Licenses
3.8 Intellectual Property
3.9 Brokers
3.10 No Other Representations or Warranties
4. Representations and Warranties of Buyer
4.1 Organization and Authority
4.2 Authorization; Binding Obligations
4.3 No Violations
4.4 Brokers
4.5 No Knowledge of Misrepresentations
4.6 No Other Representations or Warranties
5. Certain Covenants
5.1 Information
5.2 Post Closing Audit
5.3 Sale by Buyer of Inventory Marked With Sellers' Name
5.4 Collateral Agreements
5.5 Regulatory Compliance
5.6 [Intentionally Omitted]
5.7 Reacquisition Right
5.8 Maquiladora Assets
6. Confidential Nature of Information
6.1 Confidentiality Agreement
6.2 Sellers' Proprietary Information
7. Closing
7.1 Documents to be Delivered by Sellers
7.2 Documents to be Delivered by Buyer
7.3 Closing Date
7.4 Contemporaneous Effectiveness
8. Conditions Precedent to Closing
8.1 General Conditions
8.2 Conditions Precedent to Buyer's Obligations
8.3 Conditions Precedent to Sellers' Obligations
9. Status of Agreements
9.1 Effect of Breach
9.2 Survival of Representations and Warranties
9.3 General Agreement to Indemnify
9.4 Procedures for Indemnification
9.5 Arbitration; Choice of Law
10. Miscellaneous Provisions
10.1 Notices
10.2 Expenses
10.3 Entire Agreement; Modification
10.4 Assignment; Binding Effect; Severability
10.5 Governing Law
10.6 Execution in Counterparts
10.7 Public Announcement
10.8 No Third-Party Beneficiaries
11. Termination and Waiver
11.1 Waiver of Agreement
11.2 Amendment of Agreement
Schedules
Schedule 1.1 Permitted Encumbrances
Schedule 1.2 Knowledge of Certain Persons
Schedule 2.1(a) Equipment
Schedule 2.1(b) Inventory
Schedule 2.1(c) Assigned Contracts
Schedule 2.1(d) Assigned Licenses
Schedule 2.2 Excluded Assets
Schedule 2.10 Affected Employees
Schedule 3.6 Governmental Permits
Schedule 4.3(b) Buyer's Consents
Schedule 5.2 Seller's Exceptions to Covenant to Operate Business
in Ordinary Course
Exhibits
Exhibit A Form of Assignment and Assumption Agreement
Exhibit B-1 Form of Maquiladora ▇▇▇▇ of Sale
Exhibit B-2 Form of U.S. ▇▇▇▇ of Sale
Exhibit C Form of Supply Agreement
Exhibit D Form of Technology Transfer Agreement
Exhibit E Form of Transition Services Agreement
AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS
THIS AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS (this "Agreement")
is made as of October 2, 1998 by and among Lucent Technologies Inc., a Delaware
corporation, having a principal office at ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇ ("Lucent"), Lucent Technologies Maquiladoras Inc., a Delaware
corporation, having a principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("LTM" and together with Lucent, "Sellers"), and Bel Fuse Inc., a New Jersey
corporation, having a principal office at ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ ("Buyer").
WHEREAS, Lucent is, among other things, engaged through its Network
Products Group in the development, manufacture and sale of Business Products (as
hereinafter defined);
WHEREAS, Sellers desire to sell to Buyer, and Buyer desires to
purchase from Sellers, certain assets relating to the manufacture and sale of
Business Products on the terms and subject to the conditions set forth herein;
WHEREAS, Sellers wishes to transfer to Buyer, and Buyer is willing to
assume from Sellers, the Assumed Liabilities (as hereinafter defined) on the
terms and subject to the conditions set forth herein; and
WHEREAS, Lucent and Buyer wish to enter into certain collateral
agreements as hereinafter specified, namely a Technology Transfer Agreement, a
Supply Agreement and a Transition Services Agreement.
NOW THEREFORE, in consideration of the mutual agreements and covenants
herein contained and intending to be legally bound hereby, the parties agree as
follows:
1. Definitions
1.1 Defined Terms
For the purposes of this Agreement, the following words and phrases
shall have the following meanings:
"Accounts Receivable" means all the accounts, notes and finance
receivables generated by the Business including all funds, refunds, receivables,
credits, offsets, or reimbursements, claims, debts, obligations and such other
rights, together with all accrued interest thereon in each case existing as of
the close of business on the Closing Date.
"Affected Employees" has the meaning assigned in Section 2.10.
"Affiliate" of any Person means any Person, directly or indirectly
controlled by, controlling or under common control with, such Person. For
purposes of this Agreement, "control" means the power to direct the management
and policies of a Person, whether through the ownership of voting securities, by
agreement or otherwise.
"Asset Acquisition Statement" has the meaning assigned in Section
2.3(b).
"Assigned Contracts" means Third-Party contracts, agreements, leases,
supply contracts, purchase orders, sales orders and instruments relating
exclusively to the Business to which Lucent or any of its Affiliates is a party
and which are identified on Schedule 2.1(c) but in each case only to the extent
assignable.
"Assigned Licenses" means all licenses, agreements and other
arrangements under which Lucent has the right to use any Proprietary Information
of a Third Party to the extent used exclusively in the operation of the Business
and which are identified on Schedule 2.1(d) other than the Nonassignable
Licenses.
"Assignment and Assumption Agreement" means the assignment and
assumption agreement substantially in the form set forth as Exhibit A.
"Assumed Liabilities" means the liabilities and obligations of Sellers
assumed by Buyer pursuant to the Assignment and Assumption Agreement and
Section 2.4.
"Auditor" has the meaning assigned by Section 2.11(e).
"Best Efforts" means that the obligated party is required to make a
diligent, reasonable and good faith effort to accomplish the applicable
objective. Such obligation, however, does not require an expenditure of funds or
the incurrence of a liability on the part of the obligated party, nor does it
require that the obligated party act in a manner that would be contrary to
normal commercial practices in order to accomplish the objective. The fact that
the objective is not actually accomplished is no indication that the obligated
party did not in fact utilize its Best Efforts in attempting to accomplish the
objective.
"▇▇▇▇ of Sale" means collectively, the Maquiladora ▇▇▇▇ of Sale and
the U.S. ▇▇▇▇ of Sale.
"Business" means the manufacturing, marketing, selling and repairing
Business Products as carried on by Lucent immediately prior to the date of this
Agreement.
"Business Day" means a day that is not a Saturday, a Sunday or a
statutory or civic holiday in the state of New York or any other day on which
the principal offices of either Lucent or Buyer are closed or become closed
prior to 2:00 p.m. local time whether in accordance with established company
policy or as a result of unanticipated events, including adverse weather
conditions.
"Business Locations" means Lucent's facilities located at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and Norte ▇ ▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ #▇, ▇. ▇▇▇▇▇▇▇▇▇,
▇▇▇. C. P. 87490.
"Business Product" means XDSL, ISDN, modem, power and broadband
transmission transformers and related components manufactured by the Business.
"Business Records" means all books, records, mailing lists, customer
lists, vendor data equipment maintenance records, warranty information, manuals
of operation or business procedures, and other similar information, used
primarily by the Business and reasonably available to Lucent at one of the
Business Locations; provided, all materials noted above which are subject to any
non-disclosure agreements shall not for purposes of this Agreement be treated as
"Business Records."
"Buyer's Adjustment Response" has the meaning assigned by Section
2.11(b).
"Closing" means the closing of the transactions described in
Article 7.
"Closing Date" means the date of the Closing as determined pursuant to
Section 7.3.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Agreements" means the agreements to be entered into
between Buyer and Lucent and/or its Affiliates and listed in Section 5.4.
"Consents" has the meaning assigned by Section 2.6(b).
"Counsel for Buyer" means Blau, Kramer, Wactler & ▇▇▇▇▇▇▇▇▇, P.C.
"Counsel for Seller" means a Corporate Counsel of Sellers.
"Deemed Inventory Amount" means $10,000,000.00.
"Disclosure Schedule" means the disclosure schedule attached to this
Agreement setting forth the exceptions and qualifications to Sellers'
representations and warranties set forth in Article 3.
"Encumbrance" means any lien, claim, charge, security interest,
mortgage, pledge, easement, conditional sale or other title retention agreement,
covenant or other similar restrictions affecting the Purchased Assets.
"Environmental Law" means any local, county, state and/or federal law
or regulation that governs the existence of or provides a remedy for release of
Hazardous Substances, the protection of persons, natural resources or the
environment, the management of Hazardous Substances, or other activities
involving Hazardous Substances including, without limitation, under CERCLA or
any other similar federal, state, local and/or county laws or regulations, in
each case as in effect on or prior to the Closing Date.
"Equipment" means the equipment identified in the summary list set
forth on Schedule 2.1(a). Equipment includes rights to the warranties received
from the manufacturers and distributors of said items and to any related claims,
credits, rights of recovery and setoff with respect to said items, but only to
the extent such rights are assignable.
"Excluded Assets" means all rights, properties and assets that are not
Purchased Assets, including, without limitation, those rights, properties and
assets set forth in Section 2.2 or identified on Schedule 2.2.
"Excluded Liabilities" means the liabilities and obligations that are
not assumed by Buyer as provided in Section 2.5.
"Final Inventory Amount" has the meaning assigned by Section 2.11(d).
"Governmental Body" means any court, government (federal, state or
local), department, commission, board, agency, bureau, official or other
regulatory, administrative or governmental authority.
"Governmental Permits" means all the governmental permits and
licenses, certificates of inspection, approvals or other authorizations issued
to Lucent with respect to the Business and necessary for the operation of the
Business.
"Hazardous Substance" means any substance that is regulated under any
Environmental Law or is deemed by any Environmental Law to be "hazardous,"
"toxic," a "containment," "waste," or a source of contamination or a pollutant.
"Indemnified Party" has the meaning assigned by Section 9.3.
"Indemnifying Party" has the meaning assigned by Section 9.4(a).
"Inventory" means all inventory identified in the summary list set
forth on Schedule 2.1(b). Inventory shall also include any rights of Sellers to
the warranties received from suppliers and any related claims, credits, rights
of recovery and set-off with respect to such inventory, but only to the extent
such rights are assignable.
"IRS" means the U.S. Internal Revenue Service.
"Losses" has the meaning assigned by Section 9.3(a).
"Maquiladora Assets" has the meaning assigned by Section 2.1.
"Maquiladora ▇▇▇▇ of Sale" means the ▇▇▇▇ of sale in substantially the
form set forth as Exhibit B-1.
"Marked Inventory" has the meaning assigned by Section 5.3(a).
"Nonassignable Assets" has the meaning assigned by Section 2.6(b).
"Nonassignable Licenses" means licenses of Proprietary Information to
which Lucent or an Affiliate of Lucent is the licensee and that are not
assignable to Buyer.
"Permitted Encumbrances" means the (i) statutory liens for taxes not
yet due and payable, (ii) statutory liens of landlords, liens of carriers,
warehouseman, mechanics and material men incurred in the ordinary course of
business, for sums not yet due and payable, (iii) Encumbrances and exceptions
set forth on Schedule 1.1, and (iv) licenses under Sellers' Proprietary
Information.
"Person" means any individual, corporation, partnership, firm,
association, joint venture, joint stock company, trust, unincorporated
organization or other entity, or any government or regulatory, administrative or
political subdivision or agency, department or instrumentality thereof.
"Proprietary Information" means all information (whether or not
protectable by patent, copyright, mask works or trade secret rights) not
generally known to the public (except in the case of patents), including, but
not limited to, works of authorship, inventions, discoveries, patentable subject
matter, patents, patent applications, industrial models, industrial designs,
trade secrets, trade secret rights, software, works, copyrightable subject
matters, copyright rights and registrations, mask works, know-how and show-how,
trademarks, trade names, service marks, emblems, logos, insignia and related
marks and registrations, specifications, technical manuals and data, libraries,
blueprints, drawings, proprietary processes, product information and development
work-in-process.
"Purchased Assets" has the meaning assigned by Section 2.1.
"Purchase Price" has the meaning assigned by Section 2.3(a).
"Purchase Price Adjustment" has the meaning assigned by Section
2.11(a).
"Seller's Adjustment Statement" has the meaning assigned by Section
2.11(a).
"Settlement Date" has the meaning assigned by Section 2.11(d).
"Senior Executives" means, in the case of Lucent, ▇▇▇▇▇ ▇. ▇▇▇▇▇, and
in the case of Buyer, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
"Supply Agreement" means the supply agreement between Lucent and Buyer
in substantially the form set forth as Exhibit C.
"Taxes" means, all taxes of any kind, charges, fees, customs, levies,
duties, imposts, required deposits or other assessments, including, without
limitation, all net income, capital gains, gross income, gross receipt,
property, franchise, sales, use, excise, withholding, payroll, employment,
social security, worker's compensation, unemployment, occupation, capital stock,
ad valorem, value added, transfer, gains, profits, net worth, asset,
transaction, and other taxes, imposed upon any Person by federal, foreign,
state, or local law or taxing authority, together with any interest and any
penalties, or additions to tax, with respect to such taxes.
"Technology Transfer Agreement" means the technology transfer
agreement between Lucent and Buyer for the transfer of certain intellectual
property of Lucent, in substantially the form set forth as Exhibit D.
"Third Party" means any Person not an Affiliate of the other
referenced Person or Persons.
"Third-Party Claim" has the meaning assigned by Section 9.4(a).
"Transition Services Agreement" means the transition services
agreement between Lucent, Lucent Technologies Microelectronica de Mexico, S.A.
de C.V. and Buyer in substantially the form set forth as Exhibit E.
"U.S. ▇▇▇▇ of Sale" means the ▇▇▇▇ of sale in substantially the form
set forth as Exhibit B-2.
"WIP" has the meaning assigned by Section 2.11(a).
1.2 Other Definitional and Interpretive Matters
Unless otherwise expressly provided, for purposes of this Agreement,
the following rules of interpretation shall apply:
Accounting Terms. All accounting terms not specifically defined in
this Agreement shall be construed in accordance with U.S. Generally Accepted
Accounting Principles.
Calculation of Time Period. When calculating the period of time before
which, within which or following which any act is to be done or step taken
pursuant to this Agreement, the date that is the reference date in calculating
such period shall be excluded. If the last day of such period is a non-Business
Day, the period in question shall end on the next succeeding Business Day.
Gender and Number. Any reference in this Agreement to gender shall
include all genders, and words imparting the singular number only shall include
the plural and vice versa.
Headings. The provision of a Table of Contents, the division of this
Agreement into Articles, Sections and other subdivisions and the insertion of
headings are for convenience of reference only and shall not affect or be
utilized in construing or interpreting this Agreement. All references in this
Agreement to any "Section" are to the corresponding Section of this Agreement
unless otherwise specified.
Herein. The words such as "herein," "hereinafter," "hereof," and
"hereunder" refer to this Agreement as a whole and not merely to a subdivision
in which such words appear unless the context otherwise requires.
Including. The word "including" or any variation thereof means
"including, without limitation" and shall not be construed to limit any general
statement that it follows to the specific or similar items or matters
immediately following it.
Knowledge. Any reference to Sellers' knowledge shall refer to the
actual knowledge of the senior managers of Lucent set forth on Schedule 1.2.
Disclosure Schedule, Schedules and Exhibits. The Disclosure Schedule,
Schedules and Exhibits attached to this Agreement shall be construed with and as
an integral part of this Agreement to the same extent as if the same had been
set forth verbatim herein.
2. Purchase and Sale of Assets
2.1 Purchased Assets
Upon the terms and subject to the conditions of this Agreement and in
reliance on the representations and warranties contained herein, on the Closing
Date, Sellers shall collectively sell, transfer, assign, convey and deliver to
Buyer, and Buyer shall purchase, acquire and accept from Sellers, all of the
right, title and interest in, to and under the Purchased Assets that Sellers
possess and have the right to transfer as the same shall exist on the Closing
Date, except with respect to those assets which are located in Mexico (the
"Maquiladora Assets"). Title to the Maquiladora Assets will be transferred,
assigned, conveyed and delivered to Buyer (or to any wholly-owned subsidiary of
Buyer) upon their export from Mexico following the conclusion of the Transition
Period provided for in the Transition Services Agreement. The transfer of title
and delivery of all Maquiladora Assets will occur outside of Mexico. For
purposes of this Agreement, "Purchased Assets" shall mean the specific assets,
properties and rights set forth or described in Sections 2.1(a) through 2.1(f)
(and the corresponding Schedules applicable thereto), inclusive whether or not
any of such assets, property or rights have any value for accounting purposes or
are carried or reflected on or specifically referred to in Sellers' books or
financial statements:
(a) the Equipment;
(b) the Inventory;
(c) all of Sellers' rights under the Assigned Contracts;
(d) all of Sellers' rights under the Assigned Licenses;
(e) the Business Records; and
(f) Proprietary Information of Lucent but only to the extent set forth
in the Technology Transfer Agreement.
2.2 Excluded Assets
Sellers shall retain all right, title and interest to and in and shall
not sell, transfer, assign, convey or deliver to Buyer, and Buyer shall not
purchase, acquire or accept from Sellers, any Excluded Assets. Excluded Assets
shall include, without limitation, all of the following:
(a) any of Sellers' cash, Accounts Receivable, bank deposits or
similar cash items;
(b) any Proprietary Information of Sellers (including product designs)
other than as expressly provided under the Technology Transfer Agreement;
(c) (i) Sellers' personnel records; (ii) any other books and records
that Sellers are required by law to retain or that Sellers determine are
necessary or advisable to retain; provided, however, that Buyer shall have the
right to make copies of any portions of such retained books and records that
relate to the Purchased Assets; and (iii) any information management system of
Sellers other than those used exclusively with the Purchased Assets;
(d) any claim, right or interest of Sellers in or to any refund,
rebate, abatement or other recovery for U.S. federal, state, local or foreign
net income, franchise, gross income, alternative or add-on minimum, gross
income, gross receipts, sales, use, ad valorem, transfer, profits, license,
withholding, payroll, employment, excise, severance, stamp, occupation, premium,
environmental, windfall profit, real or personal property taxes, customs, duties
or other taxes, governmental fees or other like assessment or charges of any
kind whatsoever, together with any interest due Sellers thereon, for any periods
prior to the Closing Date;
(e) all "AT&T" or "Lucent Technologies" marked sales and marketing or
packaging materials, samples, prototypes, other similar AT&T or Lucent
Technologies-identified sales and marketing or packaging materials and any
marketing studies, except to the extent such materials are sold or used by Buyer
in the ordinary course of business in accordance with the terms of Section 5.3;
(f) any Inventory used or sold in the ordinary course of business
between the date hereof and the Closing Date;
(g) all of Sellers' rights, claims or causes of action against any
Person relating to the assets, properties, business or operations of Sellers
arising out of transactions occurring prior to the Closing Date; and
(h) all other assets, properties, interests and rights of Sellers not
specifically identified in Section 2.1.
2.3 Purchase Price
(a) In consideration of the sale, transfer, assignment, conveyance and
delivery by Sellers of the Purchased Assets to Buyer and, in addition to
assuming the Assumed Liabilities, Buyer shall pay to Lucent, on behalf of the
Sellers, at the Closing Thirty Million Dollars ($30,000,000.00) in cash (the
"Purchase Price") by wire transfer of immediately available funds to the account
of Lucent designated by Lucent's written instructions. The Purchase Price may be
subject to adjustment pursuant to Section 2.11.
(b) Buyer and Sellers recognize their respective obligations pursuant
to Section 1060 of the Code to timely file IRS Form 8594 (the "Asset Acquisition
Statement") with each of their respective federal income tax returns.
Accordingly, within 30 days after Buyer and Lucent agree to the final adjustment
amount, if any, pursuant to Section 2.11, Buyer and Lucent agree to attempt in
good faith to (i) enter into a Purchase Price Allocation Agreement providing for
the allocation of the Tax Purchase Price (to be defined therein) among the
Purchased Assets consistent with the provisions of Section 1060 of the Code and
the Treasury Regulations thereunder and (ii) cooperate in the preparation of the
Asset Acquisition Statement for timely filing in each of their respective
federal income tax returns; provided, however, the foregoing provision shall not
be interpreted to require that the parties must enter into a Purchase Price
Allocation Agreement.
2.4 Assumed Liabilities
On the Closing Date, Buyer and Sellers shall execute and deliver to
each other the Assignment and Assumption Agreement pursuant to which Buyer shall
accept, assume and agree to pay, perform or otherwise discharge, in accordance
with the respective terms and subject to the respective conditions thereof, all
of the liabilities and obligations of Sellers pursuant to and under the Assumed
Liabilities. "Assumed Liabilities" shall mean all liabilities and obligations
set forth in this Section 2.4:
(a) All liabilities and obligations arising after the Closing Date
under the Assigned Contracts which relate to periods on or after the Closing
Date;
(b) All liabilities and obligations arising after the Closing Date
under the Assigned Licenses which relate to periods on or after the Closing
Date;
(c) All warranty and repair obligations of Sellers with respect to any
Business Product sold by Sellers on or prior to the Closing Date;
(d) All Permitted Encumbrances and all other Encumbrances and other
obligations attaching to the Purchased Assets that are identified in this
Agreement or the Schedules hereto; and
(e) All liabilities and obligations of Sellers with respect to the
Purchased Assets, known or unknown, fixed or contingent, as the same shall arise
or mature after the Closing Date which relate to periods on or after the Closing
Date.
2.5 Excluded Liabilities
Buyer shall not assume or be obligated to pay, perform or otherwise
assume or discharge any liabilities or obligations of Sellers or any of their
Affiliates, whether direct or indirect, known or unknown, or absolute or
contingent, except for the Assumed Liabilities (all of such liabilities and
obligations not so assumed being referred to herein as the "Excluded
Liabilities"), and, notwithstanding the provisions of Section 2.4, the Buyer
shall not assume (and each shall be deemed to be an Excluded Liability) any
liabilities or obligations in respect of the Excluded Assets.
2.6 Consent of Third Parties; Further Assurances
(a) From time to time following the Closing, Sellers shall execute and
deliver, or cause to be executed and delivered, to Buyer such additional
instruments of conveyance and transfer as Buyer may reasonably request or as may
be otherwise necessary to more effectively convey or transfer to, and vest in,
Buyer and put Buyer in possession of, any part of the Purchased Assets.
(b) Nothing in this Agreement nor the consummation of the transactions
contemplated hereby shall be construed as an attempt or agreement to assign any
Purchased Asset, which by its terms or by law is nonassignable ("Nonassignable
Assets") without the consent of third Persons ("Consents") unless and until such
Consent shall be given. Sellers agree to cooperate with Buyer at its request in
endeavoring to obtain such Consents promptly; provided, however, that such
cooperation shall not require Sellers to remain secondarily liable with respect
to any Nonassignable Asset.
(c) To the extent permitted by applicable law, in the event Consents
cannot be obtained, such Nonassignable Assets shall be held, as and from the
Closing Date, by Sellers in trust for Buyer and the covenants and obligations
thereunder shall be performed by Buyer in Sellers' name and all benefits and
obligations existing thereunder shall be for Buyer's account.
(d) Sellers shall take or cause to be taken at Buyer's expense such
action in its name or otherwise as Buyer may reasonably request so as to provide
Buyer with the benefits of the Nonassignable Assets and to effect collection of
money or other consideration to become due and payable under the Nonassignable
Assets, and Sellers shall promptly pay over to Buyer all money or other
consideration received by it in respect to all Nonassignable Assets.
(e) As of and from the Closing Date, Sellers authorize Buyer, to the
extent permitted by applicable law and the terms of the Nonassignable Assets, at
Buyer's expense, to perform all the obligations and receive all the benefits of
Sellers under the Nonassignable Assets and appoints Buyer its attorney-in-fact
to act in its name on its behalf with respect thereto.
2.7 No Licenses
Unless expressly set forth in the Technology Transfer Agreement , no
right or license of any kind is granted to Buyer pursuant to this Agreement with
respect to Sellers' Proprietary Information, either directly or indirectly, by
implication, by estoppel or otherwise.
2.8 Bulk Sales Law
Buyer hereby waives compliance by Sellers with the requirements and
provisions of any "bulk-transfer" laws of any jurisdiction that may otherwise be
applicable with respect to the sale of any or all of the Purchased Assets to
Buyer.
2.9 Taxes
Buyer shall pay all Taxes and all recording and filing fees, whether
levied on Sellers or Buyer, that are payable as a result of the operation of
this Agreement including the sales, transfers, leases, rentals, licenses, and
assignments contemplated hereby, except for Sellers' income and capital gains
taxes or franchise or other taxes based on Sellers' income. Annual ad valorem
property taxes will be apportioned between Sellers and Buyer as of the date of
closing, each being responsible for the ad valorem taxes attributable to their
respective periods of ownership.
2.10 Employees
For a period of two (2) years after the Closing Date, Buyer agrees not
to solicit or hire any employee of Sellers without the prior written consent of
Lucent, which consent will not be unreasonably withheld; provided, however, on
or after the Closing Date, Buyer shall have the right to offer employment to
each of the individuals listed on Schedule 2.10 (the "Affected Employees" on
such terms and conditions established by Buyer without the prior written consent
of Lucent.
2.11 Adjustments to Purchase Price
(a) Within thirty (30) days after the Closing Date, Lucent shall
submit to Buyer a statement (the "Seller's Adjustment Statement") wherein Lucent
shall set forth in reasonable detail Lucent's valuation of the Inventory as of
the Closing Date and its proposed adjustment to the Purchase Price (either
upward or downward) as compared to the Deemed Inventory Amount (the "Purchase
Price Adjustment"). Lucent shall certify that the Seller's Adjustment Statement
was prepared in accordance with GAAP (unless otherwise indicated or agreed to in
writing by Buyer and Lucent). The Seller's Adjustment Statement will be prepared
by Lucent in accordance with the following: (i) Inventory will be valued at
Lucent's "Standard Cost" (as defined below) less the "RFMV" (as defined below)
balance as of the close of business on October 2, 1998 plus or minus the
balances in operational variance accounts as of the close of business on October
2, 1998 which consists of "Purchase Price Variances" (as defined below) and
"Operating Variances" (as defined below); provided, however, that Work in
Process ("WIP") shall include Lucent's labor and load; provided, further, that
the value of such WIP and an estimated value of cost to completion shall not
exceed the price at which Lucent will subsequently purchase, if any, such WIP
from Buyer in the form of finished goods; and (ii) Inventory will only consist
of current, merchantable, readily salable goods and merchandise that are
currently and actively used in the operation of the Business, and will not
include items which are discontinued or scrap. For purposes of this Section
2.11, the term (1) "Standard Cost" shall mean Lucent's Power Systems' published
local cost methodology used in Dallas at the Closing Date; (2) RFMV (Reduction
to Fair Market Value) shall mean Lucent's reserve to write off obsolete
inventory down to its estimated fair market value as identified on Lucent's
Power Systems' product family balance sheet; (3) "Purchase Price Variance" shall
mean the difference between actual price paid per unit for material minus
Lucent's Power Systems' local Standard Cost per unit. Purchase Price Variance is
identified as 105 account on the Power Systems' product family income
statements; and (4) "Operating Variance" shall mean the difference between the
Standard Cost of labor and load and the incurred labor and load plus the cost
difference (at standard) between the sum of components on the original ▇▇▇▇ of
material and the current ▇▇▇▇ of material. Operating Variance is identified as
104 account on Lucent's Power Systems' product family income statements.
(b) Buyer shall review the Seller's Adjustment Statement promptly upon
receipt thereof. If Buyer believes that the Seller's Adjustment Statement is
incorrect in any respect, Buyer shall deliver to Lucent a statement within
thirty (30) days after Buyer's receipt of the Seller's Adjustment Statement
identifying the specific aspects of the Seller's Adjustment Statement with which
Buyer disagrees and the reasons therefor with supporting detail, and setting
forth Buyer's valuation of the Inventory as of the Closing Date and its proposed
adjustment to the Purchase Price (the "Buyer's Adjustment Response"). Buyer
shall certify that the Buyer's Adjustment Response was prepared in accordance
with GAAP (unless otherwise indicated or agreed to in writing by the Buyer and
Lucent).
(c) Within thirty (30) days after Lucent's receipt of the Buyer's
Adjustment Response, the parties shall use their best efforts to resolve
mutually their differences with regard to, and agree upon, the valuation of the
Inventory as of the Closing Date and the Purchase Price Adjustment.
(d) If Lucent and Buyer are able to reach an agreement with regard to
the valuation of the Inventory as of the Closing Date (the "Final Inventory
Amount"), and there is a difference between the Final Inventory Amount and the
Deemed Inventory Amount, payment will be made to either Buyer or Lucent, as
applicable, and the Purchase Price will be adjusted as hereinafter set forth:
(i) If the Final Inventory Amount is greater than the Deemed
Inventory Amount, then Buyer shall pay to Lucent, for the benefit of
the Sellers, an amount equal to the difference between the Final
Inventory Amount and the Deemed Inventory Amount in immediately
available funds on the Settlement Date.
(ii) If the Deemed Inventory Amount is greater than the Final
Inventory Amount, then Lucent shall refund to Buyer an amount equal to
the difference between the Deemed Inventory Amount and the Final
Inventory Amount in immediately available funds on the Settlement
Date.
(iii) The "Settlement Date" shall be a Business Day designated by
the payor under Section 2.11(d) and shall be within (10) calendar days
after the later of (i) the expiration of the time provided in Section
2.11(b) for service upon Lucent of the Buyer's Response Statement
without Buyer having done so; or (ii) the date upon which the parties
either agree upon the valuation of the Inventory as of the Closing
Date, or if Buyer and Lucent cannot reach such agreement, then the
date on which the Auditor reaches its determination pursuant to
Section 2.11(e).
(e) If Buyer and Lucent are unable to resolve mutually their dispute
with regard to the valuation of the Inventory as of the Closing Date within the
thirty (30) day calendar period provided for doing so, then the issue shall be
submitted to PricewaterhouseCoopers, New York Office (or, if such firm is unable
or unwilling to accept such responsibility, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, New York Office)
(the "Auditor") to resolve any dispute. The Auditor, acting as an expert and not
as an arbitrator, shall determine whether the Seller's Adjustment Statement was
derived in accordance with the standards set forth in Section 2.11(a) and, only
with respect to the discrepancies identified in Buyer's Adjustment Response,
whether and to what extent, if any, the Purchase Price Adjustment proposed by
Lucent requires adjustment. The determination of the Auditor shall be final,
binding and conclusive on the parties. Buyer and Lucent shall provide all
documents and information requested by the Auditor promptly and shall use their
reasonable efforts to cause the Auditor to make its determination within thirty
(30) days after the dispute is submitted to it. The fees and expenses of the
Auditor shall be borne by Sellers and Buyer equally.
3. Representations and Warranties of Sellers
The Sellers, jointly and severally, represent and warrant to Buyer,
except as disclosed on the Disclosure Schedule or on any specific Schedule
attached hereto, that:
3.1 Organization and Authority
Each Seller is a corporation duly organized, validly existing and in
good standing under the laws of the state of Delaware and has full corporate
power to carry on the Business as now conducted.
3.2 Authorization; Binding Obligations
Each Seller has all necessary corporate power and authority to execute
and deliver this Agreement and the Collateral Agreements to which it is a party
and to effect the transactions contemplated hereby and thereby and has duly
authorized the execution, delivery and performance of this Agreement and the
Collateral Agreements by all necessary corporate action. This Agreement has been
duly executed and delivered by each Seller and this Agreement is, and the
Collateral Agreements, when duly executed and delivered by such Seller will be,
valid and legally binding obligations of such Seller, enforceable against it in
accordance with their terms, except to the extent that enforcement of the rights
and remedies created hereby and thereby may be affected by bankruptcy,
reorganization, insolvency and similar laws of general application affecting the
rights and remedies of creditors and by general equity principles.
3.3 No Violations
(a) The execution, delivery and performance of this Agreement and the
Collateral Agreements by each Seller party thereto and the consummation of the
transactions contemplated hereby and thereby do not and will not: (i) result in
a breach or violation of any provision of such Seller's charter or by-laws or in
a material violation of any statute, rule, regulation or ordinance applicable to
such Seller, (ii) with or without the giving of notice or the passage of time or
both, violate or result in a breach of or constitute an occurrence of default
under any provision of, result in the acceleration or cancellation of any
obligation under, or give rise to a right by any party to terminate or amend its
obligations under, any material mortgage, deed of trust, conveyance to secure
debt, note, loan, indenture, lien, lease, agreement, instrument, order,
judgment, decree or other material arrangement or commitment to which such
Seller is a party or by which it is bound and which relates to the Purchased
Assets, or (iii) violate any order, judgment, decree, rule or regulation of any
court or any Governmental Body having jurisdiction over such Seller or any of
its Purchased Assets.
(b) No consent, approval, order or authorization of, or registration,
declaration or filing with, any Person is required by either Seller in
connection with the execution and delivery of this Agreement and the Collateral
Agreements to which such Seller is a party or the consummation of the
transactions contemplated hereby or thereby, except for (i) any filings required
to be made under the HSR Act and (ii) consents of third Persons which are
required to transfer or assign to Buyer any Purchased Assets or assign the
benefits of or delegate performance with regard thereto.
3.4 Assets
Sellers collectively have good and marketable title to, or a leasehold
interest in, all the tangible Purchased Assets free and clear of any
Encumbrance, except for Permitted Encumbrances.
(b) Except as indicated on Schedule 2.1(b), no Inventory is stored at
any location other than at the Business Locations and at Sellers' customer
sites.
(c) There are no existing agreements, options, commitments or rights
with, of or to any Person to acquire any of Purchased Assets, or any interest
therein except for the sale of Inventory in the ordinary course of business
between the date hereof and the Closing Date.
3.5 Personal Property
The items of personal property included in the Purchased Assets which
are presently and actively used in the operation of the Business are in
reasonable operating condition, in light of their respective ages, for the
purposes for which they are currently being used.
3.6 Compliance With Laws and Litigation; Environmental Matters
(a) With respect to the Purchased Assets, each Seller is in compliance
in all material respects with all applicable laws, rules, regulations,
ordinances, decrees, orders, judgments, permits and licenses of or from
Governmental Bodies.
(b) There are no actions, suits, proceedings or governmental
investigations pending or, to Sellers' knowledge, threatened against it that
could be reasonably expected to have a material adverse effect on the Purchased
Assets.
(c) Each Seller is in material compliance with Environmental Laws. No
environmental proceeding or investigation involving the Business is pending or,
to Sellers' knowledge, threatened which could reasonably be expected to have a
material adverse effect on the Purchased Assets.
3.7 Contracts; Permits and Licenses
(a) Each Assigned Contract is valid, binding and enforceable against
the applicable Seller and, to Sellers' knowledge, the other parties thereto, in
accordance with its terms and is in full force and effect. Neither Seller has
received any written notice that it is in default or breach of or is otherwise
delinquent in performance under any Assigned Contract, and, to Sellers'
knowledge, each of the other parties thereto has performed in all material
respects all obligations required to be performed by it under, and is not in
default in any material respect under, any Assigned Contract and no event has
occurred that, with notice or lapse of time, or both, would constitute such a
default.
(b) Except as set forth on Schedule 3.6, there are no material
Governmental Permits necessary for or used by Sellers to use the Purchased
Assets as now being used, which Governmental Permits are required by currently
effective laws, rules and regulations.
3.8 Intellectual Property
Lucent has not received any writing alleging any interference,
infringement, misappropriaton or violation with respect to any product (as
listed on Appendix B to the Technology Transfer Agreement) made by use of the
Technical Information (as defined in the Technology Transfer Agreement) being
licensed by Lucent to Buyer under the Technology Transfer Agreement. Sellers'
representation in this Section 3.8 is being made without any inquiry by either
Seller.
3.9 Brokers
No broker, investment banker, financial advisor or other Person is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of either Seller.
3.10 No Other Representations or Warranties
In entering into this Agreement, Sellers have not been induced by and
have not relied upon any representations, warranties or statements, whether
express or implied, made by Buyer or any agent, employee, attorney or other
representative of Buyer or by any Person representing or purporting to represent
Buyer that are not expressly set forth in this Agreement, whether or not any
such representations, warranties or statements were made in writing or orally.
It is hereby agreed by Sellers that, except as otherwise expressly provided
herein, Buyer makes no other representations or warranties.
4. Representations and Warranties of Buyer
Buyer represents and warrants to Sellers that:
4.1 Organization and Authority
Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the state of New Jersey, and Buyer has all corporate
power and authority necessary to carry on its business as now being conducted.
4.2 Authorization; Binding Obligations
Buyer has full corporate power to execute and deliver this Agreement
and the Collateral Agreements and to effect the transactions contemplated hereby
and thereby and has duly authorized the execution, delivery and performance of
this Agreement and the Collateral Agreements by all necessary corporate action.
This Agreement has been duly executed and delivered by Buyer and this Agreement
is, and the Collateral Agreements once duly executed and delivered by Buyer will
be, the valid and legally binding obligations of Buyer, enforceable against it
in accordance with their terms, except to the extent that enforcement of the
rights and remedies created hereby and thereby may be limited by bankruptcy and
other similar laws of general application affecting the rights and remedies of
creditors and by general equity principles.
4.3 No Violations
The execution, delivery and performance of this Agreement and the
Collateral Agreements by Buyer and the consummation of the transactions
contemplated hereby and thereby do not and will not (i) result in a breach or
violation of any provision of Buyer's charter or by-laws or in a material
violation of any statute, rule, regulation or ordinance applicable to Buyer or
(ii) with or without the giving of notice or the passage of time or both,
violate or result in a breach of or constitute an occurrence of default (or an
event that might, upon the passage of time or the giving of notice, or both,
constitute an occurrence of default) under any provision of, result in
acceleration or cancellation of any obligation under, or give rise to a right by
any party to terminate or amend its obligations under, any material mortgage,
deed of trust, conveyance to secure debt, note, loan, indenture, lien, lease,
agreement, instrument, order, judgment, decree or other material arrangement or
commitment to which Buyer is a party or by which it or its assets or properties
are bound, or (iii) violate any order, judgment, decree, rule or regulation of
any court or any Governmental Body having jurisdiction over Buyer or any of its
properties.
Except as disclosed on Schedule 4.3(b), no consent, approval, order or
authorization of, or registration, declaration or filing with, any Person is
required by Buyer in connection with the execution and delivery of this
Agreement and the Collateral Agreements or the consummation of the transactions
contemplated hereby or thereby, except for (i) any filings required to be made
under the HSR Act and (ii) such consents, approvals, orders, authorizations,
registrations, declarations or filings where failure of compliance would not,
individually or in the aggregate, have a material adverse effect on Buyer's
ability to consummate the transactions contemplated hereby and thereby.
4.4 Brokers
No broker, investment banker, financial advisor or other Person, the
fees and expenses of which will be paid by Buyer, is entitled to any broker's,
finder's, financial advisor's or other similar fee or commission in connection
with the transactions contemplated by this Agreement based on arrangements made
by or on behalf of Buyer.
4.5 No Knowledge of Misrepresentations
During the course of Buyer's due diligence investigation of the
Business or otherwise, Buyer has not been made aware of any information which if
true, would result in any of the representations and warranties of Sellers made
in Article 3 being untrue in any material respect. Notwithstanding the
foregoing, the representation set forth in this Section 4.5 shall not in any way
limit Buyer's right to indemnification under Section 9.3.
4.6 No Other Representations or Warranties
(a) With respect to the Purchased Assets, the Business, or any other
rights or obligations to be transferred hereunder or pursuant hereto, Buyer has
not been induced by and has not relied upon any representations, warranties or
statements, whether express or implied, made by Sellers or any agent, employee,
attorney or other representative of Sellers or by any Person representing or
purporting to represent Sellers that are not expressly set forth in this
Agreement or, in the case of Proprietary Information, in the Technology Transfer
Agreement (including the Schedules hereto and thereto), whether or not any such
representations, warranties or statements were made in writing or orally. It is
hereby agreed by Buyer that, except as otherwise expressly provided herein or,
in the case of Proprietary Information, in the Technology Transfer Agreement,
Sellers make no representations or warranties with respect to the Purchased
Assets or the Business. Buyer assumes the responsibility and risks of all
defects and conditions relating to the Purchased Assets including, without
limitation, such conditions as are disclosed herein and including defects and
conditions that cannot be observed by casual inspection.
(b) Buyer acknowledges that it has made its own assessment of the
Purchased Assets and is sufficiently experienced to make an informed judgment
with respect thereto.
5. Certain Covenants
5.1 Information
(a) Sellers will give to Buyer and to its officers, employees,
accountants, counsel and other representatives reasonable access during Sellers'
normal business hours throughout the period prior to the Closing to all of
Sellers' properties, books, contracts, commitments, reports of examination and
records (excluding personnel records) directly relating to the Purchased Assets
(but excluding the Excluded Assets and Excluded Liabilities and subject to any
limitations that are reasonably required to preserve any applicable
attorney-client privilege or third-party confidentiality obligation). Buyer will
hold, and will cause such representatives to hold, such information in
confidence as provided in Article 6. Further, prior to the Closing, Sellers will
afford Buyer access during normal business hours to the Business Locations and
Sellers' environmental books and records which relate to the Purchased Assets
(except books and records subject to attorney-client or attorney-work product
privileges) so as to afford Buyer full opportunity to make such review,
examination and investigation of environmental matters and environmental
conditions of the Purchased Assets as Buyer may reasonably desire to make.
(b) After the Closing Date, Sellers and Buyer will provide to each
other and to their respective officers, employees, counsel and other
representatives, upon request (subject to any limitations that are reasonably
required to preserve any applicable attorney-client privilege or third-party
confidentiality obligation), reasonable access for inspection and copying of all
Business Records, Assigned Contracts and any other information existing as of
the Closing Date and relating to the Business, and will make their respective
personnel reasonably available for interviews, depositions and testimony in any
legal matter concerning transactions, operations or activities (including
treatment, storage, transportation, disposal, recycling and handling of
Hazardous Substances and compliance with Environmental Laws) relating to the
Business or the Purchased Assets prior to the Closing Date, and as otherwise may
be necessary or desirable to enable the party requesting such assistance to:
(i) comply with reporting, filing or other requirements imposed by any foreign,
local, state or federal court, agency or regulatory body; (ii) assert or defend
any claims or allegations in any litigation or arbitration or in any
administrative or legal proceeding other than claims or allegations that one
party to this Agreement has asserted against the other; or (iii) (subject to
clause (ii) above), perform its obligations under this Agreement. The party
requesting such information or assistance shall reimburse the other party for
all reasonable out-of-pocket costs and expenses incurred by such party in
providing such information and in rendering such assistance. The access to
files, books and records contemplated by this Section 5.1(b) shall be during
normal business hours and upon not less than two Business Days' prior written
request and shall be subject to such reasonable limitations as the party having
custody or control thereof may impose to preserve the confidentiality of
information contained therein.
(c) Buyer agrees to preserve all Business Records and Governmental
Permits for at least five (5) years after the Closing Date. After this five (5)
year period and at least 90 days prior to the planned destruction of any
Business Records or Governmental Permits, Buyer shall notify Sellers in writing
and shall make available to Sellers, upon its request, such Business Records and
Governmental Permits.
Post Closing Audit
For purposes of complying with Buyer's obligation to file a Form 8-K
with the Securities and Exchange Commission ("SEC") in connection with this
Agreement, Lucent will use its Best Efforts to cooperate with Buyer's
independent auditors so that Buyer can prepare and file such reformatted
financial statements (for such periods as may be required by the SEC) relating
to the Business.
5.3 Sale by Buyer of Inventory Marked With Sellers' Name
(a) To the extent that Inventory consists of product or material that
is marked with the name or ▇▇▇▇ "Lucent Technologies" or "AT&T" (or with other
indicia of either of them) (the "Marked Inventory"), Buyer shall use its Best
Efforts to ship such Marked Inventory prior to shipping the same or similar
products of Buyer. Except as specifically permitted under Section 5.3(b) below,
Buyer shall cease, immediately upon the Closing, to ▇▇▇▇, both internally and
externally, all Business Products or any other product of Buyer that is not
Marked Inventory with the names, marks or other indicia of "Lucent Technologies"
or "AT&T".
(b) For a period of 60 days after the Closing Date, Buyer may continue
to apply the name "Lucent Technologies" to Business Products manufactured during
that 30-day period. At the end of that 60-day period, Buyer agrees to cease all
use of "Lucent Technologies" name and to permanently remove the Lucent
Technologies name on all molds bearing the Lucent Technologies name. Buyer may
sell or otherwise distribute Business Products which display the Lucent
Technologies name until such Business Products are depleted or until November
30, 1998, whichever occurs first. In the event Business Products bearing the
Lucent Technologies name and manufactured in accordance with this paragraph fall
below the standard of quality of Lucent's products (as determined in good faith
by Seller), Lucent retains the right to terminate this grant upon written notice
to Buyer.
(c) Section 5.3(a) and (b) shall in all respects be subject to the
Supply Agreement.
5.4 Collateral Agreements
On or prior to the Closing Date, Buyer shall execute and deliver to
Sellers and Sellers shall execute and deliver to Buyer, as applicable, the
following agreements (collectively, the "Collateral Agreements"): the Technology
Transfer Agreement, the Supply Agreement, the Transition Services Agreement, the
Assignment and Assumption Agreement and the ▇▇▇▇ of Sale.
5.5 Regulatory Compliance
Each of Buyer and Sellers shall use reasonable efforts to obtain, and
to cooperate with each other in obtaining, all authorizations, consents, orders
and approvals of Governmental Bodies that may be or become necessary in
connection with the consummation of the transactions contemplated by this
Agreement, prior to or following the Closing, and to take all reasonable actions
to avoid the entry of any order or decree by any Governmental Body prohibiting
the consummation of the transactions contemplated hereby.
5.6 [Intentionally Omitted]
5.7 Reacquisition Right
If an Event of Default (as defined below) shall occur anytime during
the two (2) year period following the Closing Date, Lucent shall, upon 30 days
prior written notice to Buyer, have the right to reacquire all or any portion of
the Purchased Assets at their then fair market value (to be determined by the
Auditor), less all loss, cost, damage and expense of Lucent arising out of or
resulting from the Event of Default and the exercise of Lucent's rights
hereunder. For purposes of this Agreement, any or all of the following events
shall be deemed an "Event of Default": Buyer shall (i) apply for or consent to
the appointment of, or the taking possession by, a receiver, custodian, trustee
or liquidator, of Buyer or a substantial part of Buyer's property, (ii) admit in
writing Buyer's inability, or be generally unable, to pay its debts as they come
due or cease operations of its present business, (iii) make a general assignment
for the benefit of creditors, (iv) commence a voluntary case under the federal
bankruptcy laws (as now or hereafter in effect), (v) be adjudicated a bankrupt
or insolvent, (vi) file a petition seeking to take advantage of any other law
providing for the relief of debtors, (vii) acquiesce to, or fail to have
dismissed, within 60 days, any petition filed against it in any involuntary case
under such bankruptcy laws, or (viii) materially breaches the Supply Agreement
which breach is not cured or remedied within the applicable cure periods set
forth in the Supply Agreement, as applicable.)
5.8 Maquiladora Assets
Until such time that title to the Macquiladora Assets is transferred
to Buyer, Buyer shall insure all of the Maquiladora Assets and pay all insurance
premiums and any other costs associated therewith. Buyer's sole recourse to any
loss of, or damage to, any of the Maquiladora Assets shall be limited to claims
under such insurance policies.
6. Confidential Nature of Information
6.1 Confidentiality Agreement
Buyer agrees that the Confidentiality and Non-Disclosure Agreement
between Buyer and Lucent dated May 18, 1998 (the "Nondisclosure Agreement")
shall apply to (a) all documents, materials and other information that it shall
have obtained regarding Lucent or its Affiliates during the course of the
negotiations leading to the consummation of the transactions contemplated hereby
(whether obtained before or after the date of this Agreement), any
investigations made in connection therewith and the preparation of this
Agreement and related documents and (b) all analyses, reports, compilations,
evaluations and other materials prepared by Buyer or its counsel, accountants or
financial advisors that contain or otherwise reflect or are based upon, in whole
or in part, any of the provided information; provided, however, that subject to
Section 6.2(a), the Nondisclosure Agreement shall terminate as of the Closing
and shall be of no further force and effect thereafter with respect to
information of Sellers the ownership of which is transferred to Buyer.
6.2 Sellers' Proprietary Information
(a) Except as provided in Section 6.2(b) or as otherwise provided in
the Technology Transfer Agreement, after the Closing and for a period of five
(5) years following the Closing Date, Buyer agrees that it will keep
confidential and not use all of Sellers' and its Affiliates' Proprietary
Information that is received from, or made available by, Sellers in the course
of the transactions contemplated hereby, including, for purposes of this Section
6.2, information about Sellers' and their Affiliates' business plans and
strategies, marketing ideas and concepts, especially with respect to unannounced
products and services, present and future product plans, pricing, volume
estimates, financial data, product enhancement information, business plans,
marketing plans, sales strategies, customer information (including customers'
applications and environments), market testing information, development plans,
specifications, customer requirements, configurations, designs, plans, drawings,
apparatus, sketches, software, hardware, data, prototypes, connecting
requirements or other technical and business information, except for such
Proprietary Information as is conveyed to Buyer as part of the Purchased Assets.
(b) Notwithstanding the foregoing, such Proprietary Information shall
not be deemed confidential and Buyer shall have no obligation with respect to
any such Proprietary Information that:
(i) was already known to Buyer other than through this
transaction;
(ii) is or becomes publicly known through publication, inspection
of a product, or otherwise, and through no negligence or other
wrongful act of Buyer;
(iii) is received by Buyer from a Third Party without similar
restriction and without breach of any agreement;
(iv) to the extent it is independently developed by Buyer; or
(v) is, subject to Section 6.2(c), required to be disclosed under
applicable law or judicial process.
(c) If Buyer (or any of its Affiliates) is requested or required (by
oral question, interrogatory, request for information or documents, subpoena,
civil investigative demand or similar process) to disclose any Proprietary
Information, Buyer will promptly notify Lucent of such request or requirement
and will cooperate with Lucent such that Lucent may seek an appropriate
protective order or other appropriate remedy. If, in the absence of a protective
order or the receipt of a waiver hereunder, Buyer (or any of its Affiliates) is
in the written opinion of Buyer's counsel compelled to disclose the Proprietary
Information or else stand liable for contempt or suffer other censure or
significant penalty, Buyer (or its Affiliate) may disclose only so much of the
Proprietary Information to the party compelling disclosure as is required by
law. Buyer will exercise its (and will cause its Affiliates to exercise their)
Best Efforts to obtain a protective order or other reliable assurance that
confidential treatment will be accorded to such Proprietary Information.
(d) The terms and conditions of this Agreement, and all attachments
and amendments hereto and thereto shall be considered Proprietary Information
protected under this Article 6. Notwithstanding anything in this Article 6 to
the contrary, in the event that any such Proprietary Information is also subject
to a limitation on disclosure or use contained in another written agreement
between Buyer and Lucent that is more restrictive than the limitation contained
in this Article 6, then the limitation in such agreement shall supersede this
Article 6.
7. Closing
At the Closing, the following transactions shall take place:
7.1 Documents to be Delivered by Sellers
On the Closing Date, Sellers shall deliver, or execute and deliver,
the following documents and agreements to Buyer (other than the Maquiladora ▇▇▇▇
of Sale, which Sellers shall deliver to Blau, Kramer, Wactlar & ▇▇▇▇▇▇▇▇▇
("BKW&L") who shall hold it in escrow):
(a) the Technology Transfer Agreement;
(b) the Supply Agreement;
(c) the Transition Services Agreement;
(d) the U.S. ▇▇▇▇ of Sale;
(e) the Assignment and Assumption Agreement;
(f) all consents, waivers or approvals theretofore obtained by Sellers
with respect to the Purchased Assets or the consummation of the transactions
contemplated by this Agreement;
(g) a certificate of a duly authorized representative of Sellers,
dated the Closing Date, certifying the fulfillment of the conditions set forth
in Sections 8.2(a) and (b);
(h) to the extent required, updated Schedules revised to reflect
changes in the operations or condition of the Business between the date hereof
and the Closing Date; and
(i) all such other bills of sale, assignments and other instruments of
assignment, transfer or conveyance as Buyer may reasonably request or as may be
otherwise necessary to evidence and effect the sale, transfer, assignment,
conveyance and delivery of the Purchased Assets to Buyer and to put Buyer in
actual possession or control of the Purchased Assets.
7.2 Documents to be Delivered by Buyer
On the Closing Date, Buyer shall deliver, or execute and deliver, the
following funds, documents and agreements to Lucent on behalf of the Sellers
(other than the side letter executed by BKW&L pursuant to which BKW&L agrees to
hold the Maquiladora ▇▇▇▇ of Sale in escrow, which Buyer shall cause BKW&L to
execute and deliver to Sellers):
(a) the Purchase Price as provided in Section 2.3;
(b) the Technology Transfer Agreement;
(c) the Supply Agreement;
(d) the Transition Services Agreement;
(e) the Assignment and Assumption Agreement;
(f) a certificate of a duly authorized representative of Buyer, dated
the Closing Date, certifying to the fulfillment of the conditions set forth in
Sections 8.3(a) and (b); and
(g) all such other documents and instruments as Sellers may reasonably
request or as may be otherwise necessary or desirable to evidence and effect the
assumption by Buyer of the Assumed Liabilities.
7.3 Closing Date
The Closing shall take place at the office of Lucent at 10:00 a.m.
within three Business Days after all the conditions specified in Article 8 have
been satisfied or waived, or at such other place or time or on such other date
as Lucent and Buyer may agree upon in writing (such date and time being referred
to herein as the "Closing Date"), but in no event later than October 2, 1998.
7.4 Contemporaneous Effectiveness
All acts and deliveries prescribed by this Article 7, regardless of
chronological sequence, will be deemed to occur contemporaneously and
simultaneously on the occurrence of the last act or delivery, and none of such
acts or deliveries will be effective until the last of the same has occurred.
8. Conditions Precedent to Closing
8.1 General Conditions
The respective obligations of Buyer and Sellers to effect the Closing
of the transactions contemplated hereby are subject to the fulfillment, prior to
or at the Closing, of each of the following conditions:
(a) Legal Proceedings. No order of any court or administrative agency
shall be in effect that enjoins or prohibits the consummation of this Agreement,
and no litigation that has a substantial chance of success on its merits
initiated by any bona fide Third Party shall be pending that would enjoin or
prohibit the consummation of this Agreement.
(b) HSR Act. Any applicable waiting period under the HSR Act relating
to the transactions contemplated by this Agreement shall have expired or been
terminated.
8.2 Conditions Precedent to Buyer's Obligations
The obligations of Buyer to effect the Closing of the transactions
contemplated hereby are subject to the fulfillment, prior to or at the Closing,
of each of the following conditions, any of which may be waived in writing by
Buyer:
(a) Representations and Warranties of Sellers True at Closing. The
representations and warranties of Sellers contained in this Agreement, the
Collateral Agreements or in any certificate delivered hereunder or thereunder
shall be true and correct in all material respects at and as of the Closing
Date, as though such representations and warranties were made at and as of the
Closing Date, except to the extent that such representations and warranties are
made as of a specified date, in which case such representations and warranties
shall be true in all material respects as of the specified date.
(b) Performance by Sellers. Each Seller shall have performed in all
material respects all obligations and agreements and complied in all material
respects with all covenants and conditions required by this Agreement to be
performed or complied with by it prior to or at the Closing.
8.3 Conditions Precedent to Sellers' Obligations
The obligations of Sellers to effect the Closing of the transactions
contemplated hereby are subject to the fulfillment, prior to or at the Closing,
of each of the following conditions, any of which may be waived in writing by
Sellers:
(a) Representations and Warranties of Buyer True at Closing. The
representations and warranties of Buyer contained in this Agreement, the
Collateral Agreements or in any certificate delivered hereunder or thereunder
shall be true in all material respects at and as of the Closing Date as though
such representations and warranties were made at and as of the Closing Date,
except to the extent that such representations and warranties are made as of a
specified date, in which case such representations and warranties shall be true
in all material respects as of the specified date.
(b) Performance by Buyer. Buyer shall have performed in all material
respects all obligations and agreements and complied in all material respects
with all covenants and conditions required by this Agreement to be performed or
complied with by it prior to or at the Closing.
9. Status of Agreements
The rights and obligations of Buyer and Sellers under this Agreement
shall be subject to the following terms and conditions:
9.1 Effect of Breach
In the event of a material breach of any representation, certification
or warranty, or agreement or covenant of each Seller under this Agreement that
is discovered by Buyer prior to Closing and that cannot be or is not cured by
such Seller upon prior notice and the passage of a reasonable period of time,
Buyer may elect not to proceed with the closing hereunder, which shall be
Buyer's sole remedy for such breach.
9.2 Survival of Representations and Warranties
The representations and warranties of Buyer and Sellers contained in
this Agreement shall survive the Closing for twelve (12) months, except for
representations and warranties contained in Section 3.1, 3.2, 3.3, 3.4, 4.1, 4.2
and 4.3, which shall survive until the expiration of the applicable statute of
limitations. Neither Sellers nor Buyer shall have any liability whatsoever with
respect to any such representations or warranties after the survival period for
such representation or warranty expires, except for claims then pending or
theretofore asserted in writing by any party in accordance with the terms and
conditions of this Agreement.
9.3 General Agreement to Indemnify
(a) From and after the Closing Date, each Seller or Buyer, as
applicable,shall indemnify, defend and hold harmless the other party hereto and
any director, officer or Affiliate of the other party (each an "Indemnified
Party") from and against any and all claims, actions, suits, proceedings,
liabilities, obligations, losses, and damages, amounts paid in settlement,
interest, costs and expenses (including reasonable attorney's fees, court costs
and other out-of-pocket expenses incurred in investigating, preparing or
defending the foregoing) (collectively, "Losses") incurred or suffered by any
Indemnified Party to the extent that the Losses arise by reason of, or result
from or relate to (i) the failure of any representation or warranty of such
party contained in this Agreement to have been true in all material respects
when made and as of the Closing Date except as expressly provided otherwise in
Section 8.2(a) or 8.3(a) or (ii) the breach by such party of any covenant or
agreement of such party contained in this Agreement to the extent not waived by
the other party.
(b) Buyer further agrees to indemnify and hold harmless each Seller
with respect to: (i) any failure of Buyer to discharge any of the Assumed
Liabilities ; (ii) any liability arising out of the operation of the Purchased
Assets after the Closing Date; and (iii) any claim, demand or liability for the
taxes referred to in Section 2.9, including interest and penalties thereon.
(c) Each Seller further agrees to indemnify and hold harmless Buyer
from and against any Losses incurred by Buyer arising out of, resulting from, or
relating to (i) the Excluded Liabilities, (ii) Buyer's waiver of any applicable
Bulk Sales laws, (iii) any product liability lawsuits from the sale of any
Business Products manufactured by Sellers prior to the Closing Date.
(d) Amounts payable in respect of the parties' indemnification
obligations shall be treated as an adjustment to the Purchase Price. In
accordance with, and subject to, Section 2.3(b), Buyer and Sellers agree to
cooperate in the preparation of a supplemental Asset Acquisition Statement as
required by Section 2.3 and Treasury Reg.Section 1.1060-1T(f) and (h)(2)(ii) as
a result of any adjustment to the Purchase Price pursuant to the preceding
sentence. Whether or not the Indemnifying Party (as defined below) chooses to
defend or prosecute any Third-Party Claim (as defined in Section 9.4(a)), both
parties hereto shall cooperate in the defense or prosecution thereof and shall
furnish such records, information and testimony, and attend such conferences,
discovery proceedings, hearings, trials and appeals, as may be reasonably
requested in connection therewith or as provided in Section 5.1.
(e) The amount of the Indemnifying Party's liability under this
Agreement shall be determined taking into account any applicable insurance
proceeds actually received by, and tax savings that actually reduce the overall
impact of the Losses upon, the Indemnified Party. The indemnification
obligations of each party hereto under this Article 9 shall inure to the benefit
of the directors, officers and Affiliates of the other party hereto on the same
terms as are applicable to such other party.
(f) Sellers' aggregate liability for all claims, including those made
under Section 9.3(a) and under any of the Collateral Agreements, shall be
subject to the following limitations: (i) Sellers shall have no liability for
such claims until the aggregate amount of the Losses incurred shall exceed
$100,000, in which case Sellers shall be liable only for the portion of the
Losses exceeding $100,000, and (ii) Sellers' aggregate liability for all such
claims shall not exceed $6,000,000. Buyer may not make a claim for
indemnification under Section 9.3(a) for breach by either Seller of a particular
representation or warranty after the expiration of the survival period specified
in Section 9.2 to such representation or warranty.
(g) Buyer's liability for all claims made under Section 9.3(a)(i) for
a breach of the representations and warranties shall be subject to the following
limitation: (i) Buyer shall have no liability for such claims until the
aggregate amount of the Losses incurred shall exceed $100,000, in which case
Buyer shall be liable only for the portion of the Losses exceeding $100,000 and
(ii) Buyer's aggregate liability for all such claims shall not exceed
$6,000,000. Sellers may not make a claim for indemnification under Section
9.3(a)(i) for breach by Buyer of a particular representation or warranty after
the expiration of the survival period specified in Section 9.2 applicable to
such representation or warranty.
(h) The indemnification provided in this Article 9 shall be the sole
and exclusive remedy after the Closing Date for damages available to the parties
to this Agreement for breach of any of the terms, conditions, representations or
warranties contained herein or any right, claim or action arising from the
transactions contemplated by this Agreement.
(i) Notwithstanding anything contained in this Agreement to the
contrary, no party shall be liable to the other party for indirect, special,
punitive or consequential loss or damage (including any loss of revenue or
profit) arising out of this Agreement. Both parties shall mitigate their
damages.
(j) All indemnity obligations of Sellers set forth in this Section 9.3
shall be joint and several.
9.4 Procedures for Indemnification
(a) The Indemnified Party seeking indemnification under this Agreement
shall promptly notify the party against whom indemnification is sought (the
"Indemnifying Party") of the assertion of any claim, or the commencement of any
action, suit or proceeding by any Third Party, in respect of which indemnity may
be sought hereunder and will give the Indemnifying Party such information with
respect thereto as the Indemnifying Party may reasonably request, but failure to
timely give such notice or at all shall not relieve the Indemnifying Party of
any liability hereunder (unless and to the extent the Indemnifying Party has
suffered prejudice by such failure). The Indemnifying Party shall have the
right, but not the obligation, exercisable by written notice to the Indemnified
Party within 30 days of receipt of notice from the Indemnified Party of the
commencement of or assertion of any claim, action, suit or proceeding by a Third
Party in respect of which indemnity may be sought hereunder (a "Third-Party
Claim"), to assume the defense and control the settlement of such Third-Party
Claim that (i) involves (and continues to involve) solely money damages or (ii)
involves (and continues to involve) claims for both money damages and equitable
relief against the Indemnified Party that cannot be severed, where the claims
for money damages are the primary claims asserted by the Third Party and the
claims for equitable relief are incidental to the claims for money damages.
(b) The Indemnifying Party or the Indemnified Party, as the case may
be, shall have the right to participate in (but not control), at its own
expense, the defense of any Third-Party Claim that the other is defending, as
provided in this Agreement.
(c) The Indemnifying Party, if it has assumed the defense of any
Third-Party Claim as provided in this Agreement, shall not consent to a
settlement of, or the entry of any judgment arising from, any such Third-Party
Claim without the Indemnified Party's prior written consent (which consent shall
not be unreasonably withheld) unless such settlement or judgment relates solely
to monetary damages. The Indemnifying Party shall not, without the Indemnified
Party's prior written consent, enter into any compromise or settlement that (i)
commits the Indemnified Party to take, or to forbear to take, any action or (ii)
does not provide for a complete release by such Third Party of the Indemnified
Party. The Indemnified Party shall have the sole and exclusive right to settle
any Third-Party Claim, on such terms and conditions as it deems reasonably
appropriate, to the extent such Third-Party Claim involves equitable or other
non-monetary relief against the Indemnified Party, and shall have the right to
settle any Third-Party Claim involving money damages for which the Indemnifying
Party has not assumed the defense pursuant to this Section 9.4 with the written
consent of the Indemnifying Party, which consent shall not be unreasonably
withheld or delayed.
9.5 Arbitration; Choice of Law
(a) Any dispute, controversy or claim, whether based on contract,
tort, statute or other legal theory, arising out of or related to this
Agreement, or any subsequent agreement between the parties, shall be resolved by
arbitration pursuant to this Section 9.5 and the then-current Commercial Rules
and supervision of the American Arbitration Association. The duty to arbitrate
shall extend to any officer, employee, shareholder, principal, agent, trustee in
bankruptcy or otherwise, affiliate, subsidiary, third-party beneficiary or
guarantor, of a party hereto making or defending any claim which would otherwise
be arbitrable hereunder. Notwithstanding the foregoing, any party hereto shall
have the right to seek equitable relief independently, including, but not
limited to, temporary restraining orders, provisional and/or permanent
injunctive relief, specific performance or any other equitable remedy as may be
appropriate to enforce or prevent the violation of any of the terms and
conditions of this Agreement.
(b) Prior to demanding arbitration, the parties shall first in good
faith consult among appropriate officers of Buyer and Lucent, which shall begin
promptly after one party has delivered to the other a written request for
consultation. At any time thereafter, either party may request in writing that
the dispute be referred to appropriate Senior Executives of Buyer and Sellers.
Within 10 Business Days after such request, the Senior Executives (and not their
designees) shall meet and attempt in good faith to resolve the dispute.
(c) Neither party shall file a demand for arbitration until 45
Business Days after a request is made for Senior Executive meetings as provided
for in Section 9.5(b).
(d) The arbitration shall be held in Newark, New Jersey before a
single arbitrator who is knowledgeable in the subject matter of the dispute and
who has been selected mutually between Lucent and Buyer in accordance with the
rules of the Amercian Arbitration Association. The arbitrator's decisions and
award shall be issued within 30 Business Days from the closing of the
arbitration proceedings. The decision and award shall be final and binding and
may be entered in any court having jurisdiction thereof. The arbitrator shall
not have the power to award punitive or exemplary damages, or any damages
excluded by, or in excess of any damage limitations expressed in, this Agreement
or any subsequent agreement between the parties.
(e) In order to prevent irreparable harm, the arbitrator may grant
equitable relief (other than temporary or permanent injunctive relief) for the
protection of intellectual property rights.
(f) Issues of arbitrability shall be determined in accordance with the
provisions of the United States Arbitration Act regardless of its applicability
to the dispute; all other aspects of this Agreement shall be interpreted in
accordance with, and the arbitrator shall apply and be bound to follow the
substantive laws of, the State of New York. Each party shall bear its own
attorneys' fees associated with the arbitration and other costs and expenses of
the arbitration shall be borne as provided by the rules of the American
Arbitration Association.
(g) The parties agree not to submit a dispute subject to this Section
9.5 to any federal, state, local or foreign court or arbitration association
except as may be necessary to enforce the arbitration procedures of this Section
9.5, or to enforce the award of the arbitrator. If court proceedings to stay
litigation or compel arbitration are necessary, the prevailing party shall be
entitled to recover all associated costs, expenses and attorneys' fees which it
reasonably incurs.
(h) The parties agree that prior to the conduct of any hearings, they
will cooperate in the exchange of documents, exhibits, witness lists and
information pursuant to detailed demands therefor, and such other discovery as
they may agree upon. The arbitrator shall have no other power to order discovery
or depositions unless and then only to the extent that all parties otherwise
agree in writing; provided, however, that upon the request of either party the
arbitrator shall enforce subpoenas issued by either party for the attendance of
witnesses and the production of documents.
(i) Neither a party (including, such party's officers, directors,
employees and representatives) nor the arbitrator may disclose the contents or
results of any arbitration hereunder without prior written consent of both
parties, unless and then only to the extent required to enforce or challenge the
award, as required by law, or as necessary for financial and tax reports and
audits.
(j) Notwithstanding anything to the contrary in this Section 9.5, in
the event of alleged violation of a party's intellectual property rights
(including, but not limited to, unauthorized disclosure of confidential
information), that party may seek temporary injunctive relief from any court of
competent jurisdiction pending appointment of an arbitrator. The party
requesting such relief shall simultaneously file a demand for arbitration of the
dispute, and shall request the American Arbitration Association to proceed under
its rules for expedited hearing. In no event shall any such temporary injunctive
relief continue for more than 30 days.
(k) If any part of this Section 9.5 is held to be unenforceable, it
shall be severed and shall not affect either the duty to arbitrate hereunder or
any other part of this Section 9.5.
10. Miscellaneous Provisions
10.1 Notices
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given upon receipt if (i) mailed by certified
or registered mail, return receipt requested, (ii) sent by Federal Express or
other express carrier, fee prepaid, (iii) sent via facsimile with receipt
confirmed, or (iv) delivered personally, addressed as follows or to such other
address or addresses of which the respective party shall have notified the
other.
If to Sellers, to:
Lucent Technologies Inc.
Network Products Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Business Development Director
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Lucent Technologies Inc.
Network Products Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Attorney
Facimile: ▇▇▇-▇▇▇-▇▇▇▇
(b) If to Buyer, to:
Bel Fuse Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇, President
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Blau, Kramer, Wactlar & ▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
10.2 Expenses
Except as otherwise provided in this Agreement, each party to this
Agreement will bear all the fees, costs and expenses that are incurred by it in
connection with the transactions contemplated hereby, whether or not such
transactions are consummated.
10.3 Entire Agreement; Modification
The agreement of the parties, which is comprised of this Agreement,
the Disclosure Schedule, the Schedules and Exhibits hereto and the documents
referred to herein, including the Collateral Agreements, sets forth the entire
agreement and understanding between the parties and supersedes any prior
agreement or understanding, written or oral, relating to the subject matter of
this Agreement. No amendment, supplement, modification or waiver of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby, and in accordance with Section 11.4.
10.4 Assignment; Binding Effect; Severability
This Agreement may not be assigned by any party hereto without the
other party's written consent. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the successors, legal representatives and
permitted assigns of each party hereto. The provisions of this Agreement are
severable, and in the event that any one or more provisions are deemed illegal
or unenforceable the remaining provisions shall remain in full force and effect
unless the deletion of such provision shall cause this Agreement to become
materially adverse to either party, in which event the parties shall use Best
Efforts to arrive at an accommodation that best preserves for the parties the
benefits and obligations of the offending provision.
10.5 Governing Law
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the state of New York without regard to its
principles of conflicts of law.
10.6 Execution in Counterparts
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
10.7 Public Announcement
Neither Sellers nor Buyer shall, without the approval of the other
party, make any press release or other announcement concerning the existence of
this Agreement or the terms of the transactions contemplated by this Agreement,
except as and to the extent that any such party shall be so obligated by law, in
which case the other party shall be advised and the parties shall use their Best
Efforts to cause a mutually agreeable release or announcement to be issued;
provided, however, that the foregoing shall not preclude communications or
disclosures necessary to comply with accounting and Securities and Exchange
Commission disclosure obligations.
10.8 No Third-Party Beneficiaries
Nothing in this Agreement, express or implied, is intended to or shall
(a) confer on any Person other than the parties hereto and their respective
successors or assigns any rights (including Third-Party beneficiary rights),
remedies, obligations or liabilities under or by reason of this Agreement or
(b) constitute the parties hereto as partners or as participants in a joint
venture. This Agreement shall not provide Third Parties with any remedy, claim,
liability, reimbursement, cause of action or other right in excess of those
existing without reference to the terms of this Agreement. No Third Party shall
have any right, independent of any right that exist irrespective of this
Agreement, under or granted by this Agreement, to bring any suit at law or
equity for any matter governed by or subject to the provisions of this
Agreement.
11. Termination and Waiver
11.1 Waiver of Agreement
Any term or condition hereof may be waived at any time prior to the
Closing Date by the party hereto which is entitled to the benefits thereof by
action taken by its Board of Directors or its duly authorized officer or
employee, whether before or after the action of such party; provided, however,
that such action shall be evidenced by a written instrument duly executed on
behalf of such party by its duly authorized officer or employee. The failure of
either party to enforce at any time any provision of this Agreement shall not be
construed to be a waiver of such provision nor shall it in any way affect the
validity of this Agreement or the right of such party thereafter to enforce each
and every such provision. No waiver of any breach of this Agreement shall be
held to constitute a waiver of any other or subsequent breach.
11.2 Amendment of Agreement
This Agreement may be amended with respect to any provision contained
herein at any time prior to the Closing Date by action of the parties hereto
taken by their Boards of Directors or by their duly authorized officers or
employees, whether before or after such party's action; provided, however, that
such amendment shall be evidenced by a written instrument duly executed on
behalf of each party by its duly authorized officer or employee.
IN WITNESS WHEREOF, each of Buyer and Sellers has caused this
Agreement to be duly executed on its behalf by its duly authorized officer as of
the date first written above.
LUCENT TECHNOLOGIES INC.
By:
Name:
Title:
LUCENT TECHNOLOGIES MAQUILADORAS INC.
By:
Name:
Title:
BEL FUSE INC.
By:
Name:
Title: