ASSET PURCHASE AGREEMENT among: Conihasset Capital Partners, Inc., a Delaware corporation, MRO Integrated Solutions, LLC, a Connecticut limited liability company, and Metron Technology, Inc., a Delaware corporation Dated as of July 19, 2007
Exhibit
2.1
among:
a
Delaware corporation,
MRO
Integrated Solutions, LLC,
a
Connecticut limited liability company,
and
Metron
Technology, Inc.,
a
Delaware
corporation
____________________________
Dated
as
of July 19, 2007
____________________________
This
Asset Purchase Agreement
is
entered into as of July 19, 2007, by and among Conihasset
Capital Partners, Inc., a
Delaware corporation (“Conihasset”),
MRO
Integrated Solutions, LLC, a
Connecticut limited liability company (the
“Purchaser”),
and
Metron
Technology,
Inc.,
a
Delaware corporation (the “Seller”).
Certain capitalized terms used in this Agreement are defined in Exhibit A.
Recitals
A. Conihasset
is the sole member of the Purchaser.
B. Among
other businesses, the Seller operates a business known as the North American
Cleanroom Consumable Products Division (the “Specified Business”).
C. The
Seller and the Purchaser wish to provide for the sale by the Seller to the
Purchaser of the Designated Assets (as defined in Section 1.1) relating to
the
Specified Business on the terms and subject to the conditions set forth in
this
Agreement.
D. Concurrently
herewith, the Purchaser is extending offer letters to all of the six (6)
employees of the Specified Business (the “Specified
Employees”)
offering such employees employment with the Purchaser commencing immediately
subsequent to the employee’s acceptance of such offer letter at the same salary
and with substantially similar benefits as each such employee currently receives
in his or her employment with the Seller.
E. This
Agreement has received the requisite corporate approval by the Seller and
has
been approved by the board of directors of Conihasset for itself and on behalf
of the Purchaser.
Agreement
The
parties to this Agreement, intending to be legally bound, agree as
follows:
SECTION
1. Sale
of Designated Assets; Related Transactions.
1.1 Sale
of Designated Assets.
The
Seller will sell and assign all of the Seller’s right, title and interest to the
Purchaser at the Closing (as defined in Section 1.7(a)) in and to the Designated
Assets on the terms and subject to the conditions set forth in this Agreement.
Subject to Section 1.2, the “Designated
Assets”
shall
mean the following assets:
(a) All
finished goods inventories of the products distributed and sold by the Specified
Business and owned by the Seller as of the Closing Date (as defined in Section
1.7(a)) (the “Transferred Inventory”);
(b) All
items
of equipment, materials, tools, supplies, furniture, fixtures, vehicles and
other tangible assets listed on Schedule
1.1(b)
(the
“Transferred
Fixed Assets”);
(c) All
rights of the Seller as of the Closing Date under the real property leases,
the
personal property leases, the open customer and supplier agreements and purchase
orders, the maintenance agreements and the other contracts identified on
Schedule
1.1(c),
but
only to the extent that such rights relate exclusively to the Specified Business
(the “Transferred
Contracts”);
(d) All
rights of the Seller as of the Closing Date in respect of the Documentation,
which Documentation is generally identified on Schedule
1.1(d);
and
(e) The
other
books, records, files and data listed on Schedule
1.1(e).
1.2 Excluded
Assets. Notwithstanding
anything to the contrary contained in Section 1.1, the Designated Assets
will
not be deemed to include any asset identified on Schedule
1.2.
1.3 Purchase
Price and Adjustment to Purchase Price.
(a) Purchase
Price.
At the
Closing, the Purchaser shall: (i) pay to the Seller, in cash, by wire transfer
of immediately available funds, an amount equal to U.S.
$1,000,000.00,
except
as may be adjusted pursuant to Section
1.3(b)
(the “Payment
Amount”);
and
(ii) assume the Assumed Liabilities (as defined in Section 1.4) by executing
and
delivering to the Seller an Assignment and Assumption Agreement substantially
in
the form of Exhibit
B
(the
“Assignment
and Assumption Agreement”).
(b) Adjustment
to Purchase Price.
(i) In
accordance with the procedures described in Section 1.3(b)(ii) and Section
1.3(b)(iii), the Payment Amount shall be adjusted on the Closing Date to
take
into account the amount, if any, by which the aggregate book value of the
Transferred Inventory as of the Closing Date per the Seller’s books and records
is
more
or less than $1,735,000, provided, however, than an adjustment shall only
be
made if such aggregate book value deviates from that target by more than
5%
(i.e. is more than $1,821,750 or less than $1,648,250, it being understood
that
in such event, the Payment Amount shall be adjusted by the entire amount
of the
deviation and not only the amount exceeding 5%).
(ii) On
the
Closing Date, the Seller shall deliver to the Purchaser a list of the number
and
value of each type of the Transferred Inventory as of the Closing Date based
upon Seller’s electronic database without conducting a physical inventory
thereof (the “Transferred
Inventory Schedule”).
(iii) If
the
Transferred Inventory Schedule shows an aggregate book value which is lower
than
$1,648,250,
then
the
Payment Amount shall be reduced, on a dollar-for-dollar basis, by the amount
by
which $1,735,000 exceeds such aggregate book value and if it shows an aggregate
book value which is greater than $1,821,750, then the Payment Amount shall
be
increased, on a dollar-for-dollar basis, by the amount by which the aggregate
book value exceeds $1,735,000.
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1.4 Assumed
Liabilities.
The
Purchaser shall assume: (a) all of the obligations and other liabilities
of the
Seller under the Transferred Contracts that arise or require performance
after
the Closing; (b)
all
obligations and other liabilities of the Seller relating to any of the Transfer
Taxes (as defined in Section 1.5) (clauses “(a)” and “(b)” being collectively
referred to as the “Assumed
Liabilities”).
1.5 Taxes;
Delivery of Assets.
(a) The
Purchaser shall bear and pay, or shall reimburse the Seller and the Seller’s
affiliates for, any sales taxes, use taxes, transfer taxes, documentary charges,
value-added taxes, recording fees or similar taxes, charges, fees or expenses
(collectively the “Transfer
Taxes”)
that
may become payable (whether by the Seller or the Purchaser) in connection
with
the sale of the Designated Assets to the Purchaser, the assumption of the
Assumed Liabilities by the Purchaser or any of the other transactions
contemplated by this Agreement.
(b) The
Purchaser and the Seller shall cooperate and work together following the
Closing
to promptly deliver physical possession of all of the Designated Assets which
are tangible assets from the Seller to the Purchaser.
1.6 Allocation.
The
parties agree that the amount of the consideration allocable to the three
vehicles comprising a portion of the Transferred Fixed Assets shall be zero.
The
parties will use their best efforts to agree upon an allocation of the remaining
consideration referred to in Section 1.3 among the remaining Designated Assets
(the “Allocation”)
as
soon as possible after the Closing. The Allocation will be determined in
a
manner consistent with this Section 1.6 and Section 1060 of the Code and
the
Treasury Regulations thereunder. The Purchaser will provide a proposed
allocation to the Seller within 30 days after the Closing Date, and the Seller
will deliver to the Purchaser a notice setting forth any proposed changes
to
such allocation within 15 days after the delivery of such proposed allocation
to
the Seller, together with a reasonably detailed explanation of the reasons
for
such proposed changes. The parties will negotiate in good faith to resolve
any
disputed items, and if the parties are unable to agree on the Allocation
within
15 days after delivery of such notice by the Seller to the Purchaser, then
the
dispute will be arbitrated by a “Big Four” accounting firm mutually acceptable
to the parties, whose determination will be conclusive and binding upon the
parties for tax purposes. None of the parties shall file any tax return or
other
document with, or make any statement or declaration to, any governmental
body
that is inconsistent therewith, except as required by applicable
law.
1.7 Closing.
(a) The
closing of the sale of the Designated Assets to the Purchaser (the “Closing”)
shall
take place at the offices of Cooley Godward Kronish llp
located
at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, concurrently with the execution
and delivery of this Agreement (the “Closing
Date”).
(b) At
the
Closing:
3
(i) The
Seller and the Purchaser shall execute and deliver the Assignment and Assumption
Agreement;
(ii) The
Seller and the Purchaser shall also execute and deliver a Transitional Services
Agreement substantially in the form of Exhibit
C
(the
“Transitional
Services Agreement”);
(iii) The
Purchaser shall pay to the Seller the Payment Amount by wire transfer of
immediately available funds;
(iv) The
Seller shall execute and deliver to the Purchaser such bills of sale,
endorsements, assignments and other documents as may, in the reasonable judgment
of the Purchaser or its counsel, be necessary or appropriate to assign, convey,
transfer and deliver to the Purchaser good and valid title to the Designated
Assets, free and clear of liens and encumbrances; and
(v) The
Purchaser shall not be deemed to have assumed any of the Seller’s liabilities,
obligations or commitments to any of the Specified Employees incurred on
or
prior to the Closing Date including, but not limited to, any accrued but
unpaid
salary commissions or wages, any accrued but unpaid bonuses or incentive
or
other compensation or any accrued but unpaid vacation, sick pay, severance
compensation or other sums owed any of such Specified Employees as of the
Closing Date or arising as a result of their termination of employment with
the
Seller.
(vi) Except
for the Assumed Liabilities, the Purchaser shall not be deemed to have assumed,
or be liable for, any of the Seller’s liabilities, obligations or commitments of
any kind whatsoever incurred or arising in connection with the Specified
Business on or prior to the Closing Date, and the Seller shall remain
responsible for all such non-assumed liabilities, obligations or commitment
after the Closing Date.
SECTION
2. Representations
and Warranties of the Seller.
The
Seller represents and warrants to Conihasset and the Purchaser that, except
as
set forth in the Disclosure Schedule:
2.1 Due
Organization. The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware.
2.2 Title
to Transferred Fixed Assets.
The
Seller owns and has good and valid title to all of the Transferred Fixed
Assets,
free and clear of liens and encumbrances, except for: (a) any lien for current
taxes not yet due and payable; (b) liens and encumbrances specifically referred
to in the Transferred Contracts; and (c) minor liens and encumbrances that
have
arisen in the ordinary course of business and that do not materially detract
from the value of the Transferred Fixed Assets subject thereto.
2.3 Title
to Transferred Inventory.
The
Seller owns and has good and valid title to all of the Transferred Inventory,
free and clear of liens and encumbrances, except for: (a) any lien for current
taxes not yet due and payable; (b) liens and encumbrances referred to in
the
Transferred Contracts; and (c) minor liens and encumbrances that have arisen
in
the ordinary course of business and that do not materially detract from the
value of the Transferred Inventory subject thereto, taken as a
whole.
4
2.4 Intellectual Property. To
the
knowledge of the Seller, the products distributed and sold by the Specified
Business (including the Transferred Inventory) do not infringe upon any
Intellectual Property Rights of any Person.
2.5 Transferred
Contracts.
The
Seller has delivered to the Purchaser accurate and complete copies of each
Transferred Contract. Each Transferred Contract is valid and in full force
and
effect. The Seller is not in material breach of any Transferred Contract
and, to
the Seller’s knowledge, no other party to any such Transferred Contract is in
material breach of such Transferred Contract.
2.6 Legal
Proceedings.
There
is
no lawsuit or other legal proceeding pending or, to the Seller’s knowledge,
threatened against the Seller that involves the employees of the Specified
Business or involves the Designated Assets and would reasonably be expected
to
result in a judgment having a material adverse effect on the value of the
Designated Assets taken as a whole.
2.7 Authority;
Binding Nature of Agreements. The
Seller has the requisite corporate power and authority to enter into and
to
deliver the Transactional Agreements and to perform its obligations under
the
Transactional Agreements, and the execution, delivery and performance by
the
Seller of the Transactional Agreements have been duly authorized by all
necessary action on the part of the Seller and its board of directors. Each
of
the Transactional Agreements constitutes a legal, valid and binding obligation
of the Seller, enforceable against it in accordance with its terms, except
to
the extent that enforcement thereof may be limited by: (a) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws now or hereafter in effect relating to creditors’ rights generally; and (b)
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity).
2.8 Non-Contravention.
The
execution and delivery by the Seller of the Transactional Agreements, and
the
sale of the Designated Assets by the Seller to the Purchaser will not: (a)
result in a violation of, the certificate of incorporation or bylaws of the
Seller; or (b) result in the imposition or creation of any lien or encumbrance
upon or with respect to any of the Designated Assets (except for minor liens
that will not materially detract from the value of the Designated Assets
taken
as a whole).
SECTION
3. Representations
and Warranties of Conihasset and the Purchaser.
Conihasset
and the Purchaser represent and warrant to the Seller that:
3.1 Due
Organization.
Conihasset is a corporation duly organized, validly existing and in good
standing under the laws of Massachusetts. The Purchaser is a limited liability
company duly organized, validly existing and in good standing under the laws
of
Connecticut.
5
3.2 Authority;
Binding Nature of Agreements.
Each
of
Conihasset and the Purchaser has the requisite corporate or limited liability
company power and authority to enter into and to deliver each of the
Transactional Agreements to which it is a party and to perform its obligations
under each such Transactional Agreement, and the execution, delivery and
performance by Conihasset and the Purchaser of each of the Transactional
Agreements to which either or both of them are party have been duly authorized
by all necessary corporate or limited liability company action on the part
of
Conihasset and the Purchaser. Each of the Transactional Agreements constitutes
a
legal, valid and binding obligation of Conihasset and/or the Purchaser,
enforceable against it or them in accordance with its terms, except to the
extent that enforcement thereof may be limited by: (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now
or
hereafter in effect relating to creditors’ rights generally; and (b) general
principles of equity (regardless of whether enforceability is considered
in a
proceeding at law or in equity).
3.3 Non-Contravention;
Consents.
The
execution and delivery by Conihasset and/or the Purchaser of the Transactional
Agreements, and the purchase of the Designated Assets by the Purchaser from
the
Seller will not: (a) result in a violation of the charter documents of either
Conihasset or the Purchaser; or (b) result in the violation of any applicable
legal requirement. Other than consents that have already been obtained, neither
Conihasset nor the
Purchaser is required to obtain any consent from any third Person under any
contract in connection with the execution and delivery of the Transactional
Agreements
or the
Purchaser’s purchase of the Designated Assets from the Seller.
3.4 Financing.
Conihasset
and the Purchaser have sufficient cash, available lines of credit or other
sources of immediately available funds to enable them to make payment of
the
Payment Amount.
SECTION
4. Survival
and Indemnification.
4.1 Survival
of Representations and Warranties.
Subject
to Sections 4.2, 4.3 and 6.2, the representations and warranties of the Seller,
Conihasset and the Purchaser set forth in this Agreement shall not survive
the
Closing.
4.2 Survival
of Post-Closing Covenants. Notwithstanding
anything to the contrary contained in this Agreement, the post-closing covenants
of the Seller, Conihasset and the Purchaser set forth in Sections 1.5, 1.6,
1.7(iv) through (vi), 5 and 6 shall survive the Closing.
4.3 Indemnification
by Seller. Notwithstanding
anything to the contrary in this Agreement, the Seller shall hold harmless
and
indemnify the Purchaser from and against, and shall compensate the Purchaser
for, all Pre-Closing Tax Liabilities (as defined in Section
5.3(b)).
4.4 Indemnification
by Purchaser. Notwithstanding
anything to the contrary in this Agreement, the Purchaser and Conihasset
shall
hold harmless and indemnify the Seller from and against, and shall compensate
the Seller for, all losses, damages, liability, judgment, penalty tax or
expense
of any nature that is suffered or incurred by Seller and which arises from
or as
a result of, or is connected with: (a) any failure by Purchaser or Conihasset
to
timely discharge, duly pay or duly satisfy any of the Assumed Liabilities;
or
(b) Post-Closing Tax Liabilities (as defined in Section 5.3(b)) and Transfer
Taxes.
6
SECTION
5. Certain
Post-Closing Covenants.
5.1 Further
Assurances; Access to Books and Records.
(a) Each
party will, to the extent reasonably requested by the other party or parties
and
at such other party’s or parties’ sole expense, execute and deliver such
documents and instruments and take such other actions as such other party
or
parties may reasonably request in order to consummate and make effective
the
transactions contemplated by this Agreement.
(b) For
a
period of five (5) years following the Closing, the Purchaser will give the
Seller and the Seller’s advisors and representatives reasonable access to all
books and records of the Seller that are included in the Designated Assets
(to
the extent such books and records relate to any period on or prior to the
Closing Date).
5.2 Confidentiality;
Customer Communications.
None
of
the parties to this Agreement shall issue any press release or otherwise
make
any public statement or other public disclosure regarding the terms of this
Agreement and the transactions contemplated by this Agreement without the
prior
written consent of the other party or parties; provided,
however,
that:
(a) each of the Seller, Conihasset and the Purchaser shall be permitted to
make
any disclosure or public statement with respect to such matters that it
determines in good faith is required by any applicable legal requirements
or is
otherwise necessary in connection with the Purchaser’s operation and conduct of
the Specified Business after the Closing; and (b) the Seller shall be permitted
to make any disclosure or public statement with respect to such development
that
it determines in good faith is required by the rules of any stock exchange
or
quotation system on which the common stock of the Seller or any of its
affiliates is listed or quoted for trading.
5.3 Tax
Cooperation; Allocation of Taxes.
(a) The
Purchaser and the Seller agree to furnish or cause to be furnished to each
other, upon request, as promptly as practicable, such information and assistance
relating to the Designated Assets (including access to books and records)
as is
reasonably necessary for the filing of all tax returns, and making of any
election related to taxes, the preparation for any audit by any taxing authority
and the prosecution or defense of any claim, suit or proceeding relating
to any
tax return.
(b) All
personal property taxes and similar ad valorem obligations levied with respect
to the Designated Assets for a taxable period which includes (but does not
end
on) the date of this Agreement (collectively the “Apportioned
Obligations”)
shall
be apportioned between the Seller and the Purchaser as of the date of this
Agreement based on the number of days of such taxable period ending on the
date
of this Agreement (the “Pre-Closing
Tax Period”)
and
the number of days of such taxable period after the date of this Agreement
(with
respect to any such taxable period the “Post-Closing
Tax Period”).
The
Seller shall be liable for the proportionate amount of such taxes that is
attributable to the Pre-Closing Tax Period (the “Pre-Closing
Tax Liability”),
and
the Purchaser shall be liable for the proportionate amount of such taxes
that is
attributable to the Post-Closing Tax Period (the “Post-Closing
Tax Liability”).
In
the event that either the Seller or the Purchaser shall receive any ▇▇▇▇
for
real or personal property taxes relating to the Designated Assets or shall
make
any payment for which it is entitled to reimbursement under this Section
5.3(b),
the other party shall make such reimbursement promptly but in no event later
than 30 days after the presentation of a statement setting forth the amount
of
reimbursement to which the presenting party is entitled along with such
supporting evidence as is reasonably necessary to calculate the amount of
reimbursement.
7
SECTION
6. Miscellaneous
Provisions.
6.1 No
Other Representations or Warranties.
The
parties acknowledge that, except as expressly set forth in Sections 2 and
3,
none of the parties to this Agreement has made or is making any representations
or warranties whatsoever to the other party or parties, implied or
otherwise.
Without
limiting the generality of the foregoing, none of the parties to this Agreement
is making any implied warranties of merchantability or fitness for a particular
purpose.
6.2 Seller’s
Liability for Intentional or Fraudulent Misrepresentations.
Notwithstanding the provisions of Section 4.1, the Seller shall be liable
to
Conihasset and/or the Purchaser for any losses, damages, obligations,
liabilities, claims, awards (including, without limitation, awards of punitive
or treble damages or interest), assessments, amounts paid in settlement,
judgments, orders, decrees, fines and penalties, costs and expenses (including,
without limitation, reasonable legal fees, expert witness fees and other
legal
costs) incurred by Conihasset, the Purchaser and/or any if their respective
affiliated Persons, which directly arise from or directly relate to any material
inaccuracies in any of the Seller’s representations and warranties set forth in
Section 2 hereof which a court of competent jurisdiction determines to be
intentional or fraudulent misrepresentations made by the Seller with the
intent
to deceive the Purchaser and to induce the Purchaser to enter into this
Agreement.
6.3 Notices.
All
notices, requests, demands and other communications under this Agreement
shall
be in writing and shall be deemed to have been duly given or made as follows:
(a) if sent by registered or certified mail in the United States return receipt
requested, upon receipt; (b) if sent designated for overnight delivery by
nationally recognized overnight air courier (such as DHL or Federal Express),
three business days after delivery to such courier; (c) if sent by facsimile
transmission before 5:00 p.m. in California, when transmitted and receipt
is
confirmed; (d) if sent by facsimile transmission after 5:00 p.m. in California
and receipt is confirmed, on the following business day; and (e) if otherwise
actually personally delivered, when delivered, provided that such notices,
requests, demands and other communications are delivered to the address set
forth below, or to such other address as any party shall provide by like
notice
to the other parties to this Agreement:
8
|
If
to Seller:
|
|
Metron
Technology, Inc.
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Metron
Counsel
|
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With
copies (which shall not constitute notice) to:
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|
Applied
Materials, Inc.
Corporate
Business Development
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇/▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇, Managing Director, Corporate
Business Development
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
and
Cooley
Godward Kronish LLP
Five
Palo Alto Square
▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, Esq.
|
|
If
to Conihasset and/or the Purchaser:
|
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, President
& Chief Executive Officer
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
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With
copies (which shall not constitute notice) to:
|
|
▇▇▇▇▇
& ▇▇▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, Esq. and ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, ▇▇., Esq.
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
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6.4 Headings.
The
bold-faced headings contained in this Agreement are for convenience of reference
only, shall not be deemed to be a part of this Agreement and shall not be
referred to in connection with the construction or interpretation of this
Agreement.
9
6.5 Counterparts
and Exchanges by Electronic Transmission or Facsimile.
This
Agreement may be executed in several counterparts, each of which shall
constitute an original and all of which, when taken together, shall constitute
one agreement. The exchange of a fully executed Agreement (in counterparts
or
otherwise) by electronic transmission or facsimile shall be sufficient to
bind
the parties to the terms and conditions of this Agreement.
6.6 Governing
Law; Venue.
(a) This
Agreement shall be construed in accordance with, and governed in all respects
by, the internal laws of the State of California (without giving effect to
principles of conflicts of laws).
(b) Any
legal
action or other legal proceeding relating to this Agreement or the enforcement
of any provision of this Agreement shall be brought or otherwise commenced
only
in any state or federal court located in the County of Santa Clara, California.
Each party to this Agreement:
(i) expressly
and irrevocably consents and submits to the exclusive jurisdiction of each
state
and federal court located in the County of Santa Clara, California (and each
appellate court located in the State of California) in connection with any
such
legal proceeding;
(ii) agrees
that each state and federal court located in the County of Santa Clara,
California shall be deemed to be a convenient forum; and
(iii) agrees
not to assert (by way of motion, as a defense or otherwise), in any such
legal
proceeding commenced in any state or federal court located in the County
of
Santa Clara, California, any claim that such party is not subject personally
to
the jurisdiction of such court, that such legal proceeding has been brought
in
an inconvenient forum, that the venue of such proceeding is improper or that
this Agreement or the subject matter of this Agreement may not be enforced
in or
by such court.
6.7 Recovery
of Litigation Costs.
If
any
legal action or legal proceeding is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default or intentional
or
fraudulent misrepresentation in connection with or arising out of any of
the
provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover its or their reasonable legal fees, expert witness
fees and costs and other legal costs incurred in such legal action or legal
proceeding, in addition to any other relief to which it or they may be
entitled.
6.8 Successors
and Assigns; Parties in Interest.
None of
the parties may assign any of its rights or delegate any of its obligations
under this Agreement to any other Person without the prior written consent
of
the other party or parties. Subject to the foregoing, this Agreement shall
be
binding upon and inure to the benefit of the Seller and its successors and
permitted assigns (if any) and each of Conihasset and the Purchaser and their
respective successors and assigns (if any). None of the provisions of this
Agreement is intended to provide any rights or remedies to any Person other
than
the parties to this Agreement and their respective successors and permitted
assigns (if any).
10
6.9 Waiver.
No
failure on the part of any party to this Agreement to exercise any power,
right,
privilege or remedy under this Agreement, and no delay on the part of any
party
to this Agreement in exercising any power, right, privilege or remedy under
this
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or
remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy.
6.10 Specific Performance.
Each
party agrees that: (a) in the event of any breach or threatened breach by
the
other party of any covenant, obligation or other provision set forth in this
Agreement, such party shall be entitled (in addition to any other remedy
that
may be available to it) to: (i) a decree or order of specific performance
or mandamus to enforce the observance and performance of such covenant,
obligation or other provision; and (ii) an injunction restraining such
breach or threatened breach; and (b) no person or entity shall be required
to
provide any bond or other security in connection with any such decree, order
or
injunction or in connection with any related legal proceeding.
6.11 Amendments.
This
Agreement may not be amended, modified, altered or supplemented other than
by
means of a written instrument duly executed and delivered on behalf of the
Seller, Conihasset and the Purchaser.
6.12 Severability.
In
the
event that any provision of this Agreement, or the application of any such
provision to any party or set of circumstances, shall be determined to be
invalid, unlawful, void or unenforceable to any extent, the remainder of
this
Agreement, and the application of such provision to a party or parties or
circumstances other than those as to which it is determined to be invalid,
unlawful, void or unenforceable, shall not be impaired or otherwise affected
and
shall continue to be valid and enforceable to the fullest extent permitted
by
law.
6.13 Entire
Agreement.
The
Transactional Agreements set forth the entire understanding of the parties
relating to the subject matter thereof and supersede all prior agreements
and
understandings among or between any of the parties relating to the subject
matter thereof.
6.14 Knowledge.
“Knowledge”
of the Seller means only the actual knowledge of the General Manager of the
Specified Business.
6.15 Construction.
(a) For
purposes of this Agreement, whenever the context requires: the singular number
shall include the plural, and vice versa; the masculine gender shall include
the
feminine and neuter genders; the feminine gender shall include the masculine
and
neuter genders; and the neuter gender shall include the masculine and feminine
genders.
11
(b) The
parties hereto agree that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be applied
in the construction or interpretation of this Agreement.
(c) As
used
in this Agreement and Exhibit
A,
the
words “include” and “including,” and variations thereof, shall not be deemed to
be terms of limitation, but rather shall be deemed to be followed by the
words
“without limitation.”
(d) Except
as
otherwise indicated, all references in this Agreement to “Sections,” “Exhibits”
and “Schedules” are intended to refer to Sections of this Agreement and Exhibits
and Schedules to this Agreement.
12
The
parties to this Agreement have caused this Agreement to be executed and
delivered as of the date first above mentioned.
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Metron
Technology, Inc.
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By:
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/s/
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Name:
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Title:
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President
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇.
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Title:
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President and Chief Executive Officer | |
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MRO
Integrated Solutions, llc
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By:
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/s/
▇▇▇▇▇▇
▇▇▇▇▇▇
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Name:
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Title:
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President
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Exhibit
A
CERTAIN
DEFINITIONS
For
purposes of the Agreement (including this Exhibit A):
Agreement.“Agreement”
shall mean the Asset Purchase Agreement (including the Disclosure Schedule),
to
which this Exhibit
A
is
attached as it may be amended from time to time.
Code.“Code”
shall mean the Internal Revenue Code of 1986, as amended.
Disclosure
Schedule. “Disclosure
Schedule”
shall
mean the disclosure schedule delivered by the Seller to the Purchaser
contemporaneously with the execution and delivery of the Agreement.
Documentation.
“Documentation”
shall mean the user manuals, marketing materials, and technical documentation
of
the Seller that are specifically and exclusively related to the products
distributed
and sold by the Specified Business
and the
customer lists, customer contact information and sales leads exclusively
related
to such products
distributed and sold by the Specified Business.
Intellectual
Property Rights.
“Intellectual Property Rights” shall mean: (a) rights associated with works of
authorship, including copyrights; (b) trade secret rights; (c) other proprietary
rights in the products distributed and sold by the Specified Business and
in the
Documentation (other than patents, trademarks and applications for patents
or
trademarks); and (d) rights in registrations, renewals and extensions of,
and
applications for, any of the rights referred to in clauses “(a)” through “(c)”
above.
Person.“Person”
shall mean any individual, entity or governmental body other then Conihasset,
the Purchaser and the Seller.
Transactional
Agreements.
“Transactional Agreements” shall mean: (a) the Agreement; (b) the Assignment and
Assumption Agreement; and (c) the Transitional Services Agreement.
A-1
Exhibit
B
Assignment
and Assumption Agreement
B-1
Exhibit
C
Transitional
Services Agreement
C-1