Exhibit 2.12
EXECUTION COPY
INTERNATIONAL ASSET TRANSFER AGREEMENT
BETWEEN
Adaptec Mfg (S) Pte Ltd
AND
ROXIO CI LTD.
DATED THIS 5th DAY OF May 2001
TABLE OF CONTENTS
1. DEFINITIONS & INTERPRETATION .................................... 1
2. TRANSFER OF TECHNOLOGY .......................................... 3
3. CONSIDERATION ................................................... 4
4. COMPLETION ...................................................... 4
5. REPRESENTATIONS AND WARRANTIES .................................. 5
6. DURATION OF THIS AGREEMENT ...................................... 5
7. ASSIGNMENT ...................................................... 5
8. COSTS AND EXPENSES .............................................. 5
9. NOTICES ......................................................... 5
10. PREVIOUS AGREEMENTS AND AUTHORITY ............................... 6
11. REMEDIES ........................................................ 6
12. SEVERANCE ....................................................... 6
13. ARBITRATION AND APPLICABLE LAW .................................. 6
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THIS AGREEMENT is made on the 5th day of May, 2001("the Effective Date"),
BETWEEN
(1) Adaptec Mfg (S) Pte Ltd (Regn No. 00121/1987-N) ("AMS"), a company
incorporated in the Republic of Singapore with its registered office at
No. ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇);
AND
(2) Roxio Cl Ltd. (Regn No. 103240) ("RCI"), a company incorporated in the
Cayman Islands with its registered office at Offices of Walkers, ▇▇▇▇▇▇
House, PO Box 265GT, ▇▇▇▇ Street, ▇▇▇▇▇▇ Town, Grand Cayman, Cayman
Islands, B.W.I.
WHEREAS
(A) AMS is a private limited company incorporated in the Republic of
Singapore and has at the date hereof the authorised share capital and
issued and paid-up share capital as set out in Schedule 1.
(B) RCI is currently a 100% owned subsidiary of AMS and has at the date
hereof the authorised share capital and issued and paid-up share
capital as set out in Schedule 2.
(C) AMS is desirous of transferring certain technology and rights
(hereinafter referred to as the "RCI Technology"), equity interests as
set out in Schedule 3, and cash consideration to its subsidiary, RCI,
and in consideration therefor, RCI shall issue one hundred (100)
ordinary share of US$1/- in its capital to AMS as set out in
Schedule 4 upon the terms and subject to the conditions contained in
this Agreement.
IT IS HEREBY AGREED as follows:-
1. DEFINITIONS & INTERPRETATION
In this Agreement:
1.1 the following words and expressions shall have the following
meanings:-
"CASH CONSIDERATION" shall mean the sum of Twenty
Million Dollars (US$20,000,000) to
be paid by check or wire transfer;
"COMPLETION DATE" means May 5, 2001 or such other date
as the parties hereto may agree in
writing;
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"CONSIDERATION SHARES" means one hundred (100) ordinary
share of US$1/- in the capital of
RCI credited as fully paid up to be
allotted and issued by RCI to AMS as
set out against its name in Schedule
4;
"DIRECTORS" means the directors (including their
alternates) for the time being of
AMS and RCI and "Director" shall
mean any of them;
"SHAREHOLDERS" means the persons who are registered
for the time being as holders of the
shares in the Register of Members of
RCI and AMS.
"US$" means United States dollar.
"RCI TECHNOLOGY" means the technology
acquired by AMS under the Prior
Agreements and currently held by
AMS, which relates to the RCI
Business and does not relate
primarily to the business of AMS or
Adaptec, Inc.
"RCI BUSINESS" means (a) the business and
operations of Adaptec, Inc.
currently operated as the Software
Products Group, as described in the
Roxio, Inc. Form 10, including,
without limitation, the business and
operation responsible for
developing, marketing, and selling
the following products (i) Easy CD
Creator, (ii) GoBack, (iii)
SoundStream, (vi) Toast, (v) Jam,
(vi) TakeTwo and (vii) WinOnCD and
(b) except as otherwise expressly
provided herein, any terminated,
divested or discontinued businesses
or operations that at the time of
termination, divestiture or
discontinuation primarily related to
the business of the Software
Products Group or Roxio, Inc., as
conducted on the Separation Date (as
defined in the First Amended Master
Separation and Distribution
Agreement between Adaptec, Inc. and
Roxio, Inc.).
"PRIOR AGREEMENTS" means the Technology Research and
Development Cost and Risk Sharing
Agreement by and between Adaptec,
Inc. and AMS, dated September 1,
1995, as amended, and the R&D
Services Agreement by and between
AMS and CeQuadrat GmbH, dated July
8, 1999.
EQUITY INTEREST" means all of the equity interest
held by AMS in CG1
Verwaltungsgesellschaft GmbH.
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1.2. Any reference to "completion" shall mean completion of the
transfer of the RCI Technology, Equity Interest as set out in
Schedule 3 and the Cash Consideration, and the allotment of
the ordinary shares in the share capital of Roxio Cl, Ltd in
consideration thereof.
1.3 References to Recitals and Clauses are to recitals and clauses
of this Agreement, and "Agreement" shall mean this Agreement.
1.4 The headings in this Agreement are for convenience only and
shall not affect the interpretation hereof.
1.5 Where applicable, words importing the singular include the
plural and vice versa, words importing any gender include
every gender, references to persons include bodies corporate
and unincorporate and references to time shall mean Singapore
time.
2. TRANSFER OF TECHNOLOGY
2.1 Subject to the terms and conditions of this Agreement, AMS
hereby transfers, grants, conveys and assigns to RCI all of
its right, title and interest in and to the RCI Technology,
the Equity Interest and the Cash Consideration, free from any
charges, liens and other encumbrances placed thereon by AMS,
exclusive of encumbrances which are agreements with
subcontractors to manufacture product for AMS or agreements
granting reproduction or distribution rights to (a) OEMs, VARs
or similarly situated licensees, or (b) customers with respect
to technology which has been escrowed for purposes of ensuring
that such customers are provided continued support for the
technology in the event of (i) the insolvency of AMS or (ii)
the material breach of AMS under its agreement with such
customers (collectively, "Permitted Licenses"), and with all
rights, benefits and entitlements now or hereafter attaching
to such RCI Technology and to such Equity Interest.
2.2 Subject to the terms and conditions of this Agreement, RCI
hereby agrees to issue to AMS the Consideration Shares free
from all charges, liens and other encumbrances and with all
rights, benefits and entitlements now or hereafter attaching
thereto.
2.3 AMS hereby assigns all of its rights in the Permitted Licenses
to RCI.
2.4 RCI is not obliged to complete the allotment of the
Consideration Shares unless the transfer of the RCI
Technology, Equity Interest and the Cash Consideration is
completed simultaneously with such allotment.
2.5 AMS covenants that AMS will, without demanding any further
consideration therefor, at the request and expense of RCI
(except for the value of the time of AMS employees), do (and
cause its subsidiaries to do) all lawful and just acts that
may be or become necessary for evidencing, maintaining,
recording and perfecting RCI's rights to such RCI Technology
and the Equity Interest as of the Effective Date, including
but not limited to, execution and acknowledgement of (and
causing its subsidiaries to execute and acknowledge)
assignments and other instruments in a form reasonably
required by RCI to evidence the
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conveyances herein in all jurisdictions in which such RCI
Technology and Equity Interest exist.
2.6 If, after the Separation Date, it is found that the RCI
Technology does not include certain technology used before the
Effective Date and intended for use by Roxio, Inc. or RCI in
the day to day conduct of its business as contemplated in this
Agreement or in the Ancillary Agreements, and such technology
is not otherwise provided to RCI under the this Agreement, AMS
will provide RCI such technology under the assignments granted
in this Agreement to the extent it is able to do so, but only
to the extent such technology is reasonably necessary for
Roxio, Inc. or RCI to accomplish such day to day operation of
its business.
2.7 AMS hereby acknowledges and affirms the transfer and licensing
of that certain technology and those certain intellectual
property rights transferred and licensed under the Master
Technology Ownership and License Agreement and the Master
Patent Ownership and License Agreement, by and between Roxio,
Inc. and Adaptec, Inc., and hereby consents to such transfer
and licensing to the extent it may have an interest in the
technology and rights transferred and licensed thereunder.
3. CONSIDERATION
3.1 The consideration for the allotment of Consideration Shares
shall be the net book value of the RCI Technology and Equity
Interest held by AMS, together with the Cash Consideration.
3.2 The consideration for the Consideration Shares shall be
satisfied in whole by the allotment and issue by RCI of the
Consideration Shares, credited as fully paid up to RCI as set
out in Schedule 3.
3.3 The Consideration Shares shall be allotted and issued on terms
that they will rank PARI PASSU in all respects with the
existing ordinary shares in the capital of RCI at the date of
allotment.
4. COMPLETION
4.1 Subject as hereafter provided, completion shall take place at
the office of AMS or such other place as the parties hereto
may agree in writing on the Completion Date.
4.2 RCI shall, in consideration of the mutual covenants set out
hereinbefore, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, duly
execute in favour of AMS the share certificates in respect of
the Consideration Shares.
4.3 RCI shall:
(a) prior to or on completion, procure the necessary
approval of its Directors/Shareholders in accordance
with the requirements of the Laws of Cayman Islands
to its entry into this Agreement for the allotment
and issue
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of the Consideration Shares credited as fully paid-up
by AMS as set out in Schedule 3 as consideration for
the aforesaid allotment;
(b) on completion, issue to AMS the Consideration Shares
as set out in Schedule 4;
(c) on completion, deliver to AMS, the relative share
certificate relating to the Consideration Shares; and
(d) on completion, deliver to AMS such waivers, consents,
approvals and other documents as may be necessary to
enable AMS to be registered as the holder of the
Consideration Shares.
5. REPRESENTATIONS AND WARRANTIES
5.1 AMS represents and warrants that, other than the Permitted Licenses, it
has granted no license under any of the RCI Technology.
5.2 AMS and RCI each respectively represents and warrants that it has the
authority to enter into this Agreement and to grant the rights that it
respectively grants in it.
6. DURATION OF THIS AGREEMENT
All provisions of this Agreement shall not, so far as they have not
been performed at completion, be in any respect extinguished or
affected by completion or by any other event or matter whatsoever and
shall continue in full force and effect.
7. ASSIGNMENT
RCI may assign this Agreement or any technology or right respectively
assigned or granted under it.
8. COSTS AND EXPENSES
All costs and expenses (including without limitation, legal or other
professional fees, taxes and stamp duties) incurred in the preparation,
negotiation and execution of this Agreement and related documents shall
(whether or not there is completion), be borne by the respective
parties accordingly.
9. NOTICES
Any notice or request to be given, made or served for any purpose under
this Agreement shall be in writing and given, made or served by sending
the same by prepaid post or delivering it by hand or sending it by
facsimile transmission addressed to the parties at their respective
addresses or facsimile numbers, respectively, set out on the execution
page or as shall have been notified (in accordance with this Clause) to
the other party hereto for the purposes of this Clause and shall be
deemed to have been duly served (if by hand or made by facsimile
transmission) immediately or (if served by post) 7 days after posting
and in proving the same it shall be sufficient to show that the
transmission report confirming receipt or the envelope containing the
same was duly transmitted, addressed, stamped and posted (as the case
may be).
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10. PREVIOUS AGREEMENTS AND AUTHORITY
10.1 ENTIRE AGREEMENT : This Agreement and the documents referred
to herein state the entire agreement, whether oral or in
writing, between or among all or any of the parties hereto
with respect to the RCI Technology. The rights of AMS to grant
licenses or sublicenses under the RCI Technology is hereby
terminated.
10.2 AMENDMENTS : No amendment or variation of this Agreement shall
be effective unless in writing and signed by or on behalf of
each of the parties hereto.
10.3 AUTHORITY : Each party represent and warrants that as of the
Completion Date it has the full legal right, power and
authority to enter into and perform this Agreement.
11. REMEDIES
No remedy conferred by any of the provisions of this Agreement is
intended to be exclusive of any other remedy which is otherwise
available at law, in equity, by statute or otherwise, and each and
every other remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law,
in equity, by statute or otherwise. The election of any one or more of
such remedies by any of the parties hereto shall not constitute a
waiver by such party of the right to pursue any other available
remedies.
12. SEVERANCE
If any provision of this Agreement or part thereof is rendered void,
illegal or unenforceable by any legislation to which it is subject, it
shall be rendered void, illegal or unenforceable to that extent and no
further.
13. ARBITRATION AND APPLICABLE LAW
13.1 Any dispute arising out of or in connection with this
contract, including any question regarding its existence,
validity or termination, shall be referred to and finally
resolved by arbitration in Singapore in accordance with the
Arbitration Rules of Singapore International Arbitration
Centre ("SIAC Rules") for the time being in force, which rules
are deemed to be incorporated by reference to this clause.
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IN WITNESS WHEREOF this Agreement has been entered into the day and year first
above written.
SIGNED by ) /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
)
for and on behalf of )
ADAPTEC MFG (S) PTE LTD )
in the presence of:- ) /s/ ▇▇▇ ▇▇▇▇▇▇
)
SIGNED by ) /s/ Wm. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
)
for and on behalf of )
ROXIO CL LTD. )
in the presence of:- ) /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
)
For purposes of the transfers provided to Roxio CI Ltd. hereunder, Adaptec, Inc.
as a party to the Technology Research and Development Cost and Risk Sharing
Agreement by and between Adaptec, Inc. and AMS, dated September 1, 1995, hereby
acknowledges and affirms this Agreement as if a party hereto.
SIGNED by ) /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
)
for and on behalf of )
ADAPTEC, INC. )
in the presence of:- ) /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
)
[SIGNATURE PAGE TO
INTERNATIONAL ASSET TRANSFER AGREEMENT]