Exhibit 10.1
EXECUTION VERSION
WHITE ELECTRONIC DESIGNS
CORPORATION
Dated as of April 3,
2009
ASSET
PURCHASE AGREEMENT, dated as of April 3, 2009, between WHITE
ELECTRONIC DESIGNS CORPORATION, an Indiana corporation (“
WEDC ”), PANELVIEW, INCORPORATED, an Oregon
corporation (the “ Seller ”), VIA OPTRONICS
GMBH, a company organized under the laws of Germany, (the “
Parent ”) and VIA OPTRONICS, LLC an Oregon limited
liability company and wholly owned U.S. subsidiary of Parent (the
“ Purchaser ”).
WHEREAS,
the Seller is engaged in the display systems business located in
Hillsboro, Oregon (the “ Business ”);
and
WHEREAS,
the Seller wishes to sell to the Purchaser, and the Purchaser
wishes to purchase from the Seller, the Business, and in connection
therewith the Purchaser is willing to assume from the Seller all of
the Assumed Liabilities (as defined hereafter), all upon the terms
and subject to the conditions set forth herein.
NOW,
THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, and intending to be
legally bound, the Seller and the Purchaser hereby agree as
follows:
SECTION
1.01. Certain Defined Terms . For purposes of this
Agreement, terms not otherwise defined in this Agreement shall have
the meaning ascribed to them as set forth in Exhibit A
hereto.
SECTION
1.02. Interpretation and Rules of Construction . In this
Agreement, except to the extent otherwise provided or that the
context otherwise requires:
(i) when a
reference is made in this Agreement to an Article, Section, Exhibit
or Schedule, such reference is to an Article or Section of, or an
Exhibit or Schedule to, this Agreement unless otherwise
indicated;
(ii) the table of
contents and headings for this Agreement are for reference purposes
only and do not affect in any way the meaning or interpretation of
this Agreement;
(iii) whenever the
words “include,” “includes” or
“including” are used in this Agreement, they are deemed
to be followed by the words “without
limitation”;
(iv) the words
“hereof,” “herein” and
“hereunder” and words of similar import, when used in
this Agreement, refer to this Agreement as a whole and not to any
particular provision of this Agreement;
(v) all terms
defined in this Agreement have the defined meanings when used in
any certificate or other document made or delivered pursuant
hereto, unless otherwise defined therein;
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(vi) the
definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms;
(vii) references
to a Person are also to its successors and permitted assigns;
and
(viii) the use of
“or” is not intended to be exclusive unless expressly
indicated otherwise.
SECTION
2.01. Purchase and Sale of Assets . (a) Upon the terms
and subject to the conditions of this Agreement, at the Closing,
the Seller shall sell, assign, transfer, convey and deliver, or
cause to be sold, assigned, transferred, conveyed and delivered, to
the Purchaser, and the Purchaser shall purchase from the Seller,
all of the Seller’s right, title and interest in and to the
following assets (the “ Purchased Assets
”):
(i) the machinery,
equipment, computers, tools, tooling, furniture, fixtures and
leasehold improvement used exclusively in the operation of the
Business set forth in Section 2.01(a)(i) of the Disclosure
Schedule;
(ii) all customer
lists, supplier lists, marketing material and source files therefor
solely related to the Business;
(iii) all
supplies, consumable materials and other similar assets on hand as
of the Closing, wherever located;
(iv) the
Inventories set forth in Section 2.01(a)(iv) of the Disclosure
Schedule;
(v) all prepaid
expenses solely related to the Business;
(vi) all rights
and obligations with respect to the Leased Real Property listed on
Section 3.06 of the Disclosure Schedule;
(vii) the books of
account, general, financial, tax and personnel records, invoices,
shipping records, supplier lists, correspondence and other
documents, records and files and any rights thereto owned, solely
associated with or solely employed by the Seller in the conduct of
the Business;
(viii) the
Receivables arising from sales on or following the Closing
Date;
(ix) the
Transferred Intellectual Property, Transferred Software and the
Transferred IP Agreements (to the extent transferable);
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(x) the rights of
the Seller under the Assigned Contracts, other than Transferred IP
Agreements, as set forth in Section 2.01(a)(x) of the
Disclosure Schedule; and
(xi) all
municipal, state and federal franchises, permits, licenses,
agreements, waivers and authorizations held or used by the Seller
solely in connection with the Business, to the extent
transferable.
(b) Notwithstanding
anything in Section 2.01(a) to the contrary, the Seller shall
not sell, convey, assign, transfer or deliver, nor cause to be
sold, conveyed, assigned, transferred or delivered, to the
Purchaser, and the Purchaser shall not purchase, and the Purchased
Assets shall not include, the Seller’s right, title and
interest in or to any assets of the Seller not expressly included
in the Purchased Assets (the “ Excluded Assets
”), including:
(i) the Purchase
Price Bank Account;
(ii) all cash and
cash equivalents, securities, and negotiable instruments of the
Seller on hand, in lock boxes, in financial institutions or
elsewhere, including all cash residing in any collateral cash
account securing any obligation or contingent obligation of the
Seller or any Affiliate;
(iii) any rights
to Tax refunds, credits or similar benefits, including short-term
prepaid deferred Taxes, attributable to the Purchased Assets or
Business and relating to the taxable period ending on or prior to
the date of the Closing or portion of the taxable period which ends
after the date of the Closing for which Seller paid
taxes;
(iv) the company
seal, minute books, charter documents, stock or equity record books
and such other books and records as pertain to the organization,
existence or capitalization of the Seller, as well as any other
records or materials relating to the Seller generally and not
involving or related to the Purchased Assets or the operations of
the Business;
(v) all rights of
the Seller under this Agreement and the Ancillary
Agreements;
(vi) Tax Returns
of the Seller;
(vii) the
Receivables arising prior to the Closing Date and set forth in
Section 2.01(b)(vii);
(viii) all current
and prior insurance policies of the Seller and all rights of any
nature with respect thereto, including all insurance recoveries
thereunder and rights to assert claims with respect to any such
insurance recoveries;
(x) software
associated with the Microsoft Enterprise Agreement or other
software on computers of the Business that is not
transferrable.
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SECTION
2.02. Assumption and Exclusion of Liabilities . (a)
Assumed Liabilities . Upon the terms and subject to the
conditions set forth in this Agreement, the Purchaser shall, by
executing and delivering, at the Closing, the Bill of Sale, assume,
and agree to pay, perform and discharge when due, the following
Liabilities of the Seller to the extent relating to the Business or
the Purchased Assets (the “ Assumed Liabilities
”):
(i) all
Liabilities arising on or following the Closing under the Assumed
Contracts;
(ii) subject to
reimbursement by WEDC pursuant to Section 5.04(e), all
Liabilities for product warranty service claims relating to
products of the Business sold prior to, on or following the Closing
and all Product Liabilities relating to products of the Business
sold on or following the Closing;
(iii) all
Liabilities in respect of any and all accounts payables accruing on
or following the Closing and such accrued vacation, sick leave,
workers’ compensation claims and insurance claims of the
employees of the Business as listed in Exhibit D ,
accruing on or following the Closing;
(iv) all
Environmental Liabilities solely to the extent arising from or
relating to products sold and business conducted by Purchaser on or
following the Closing;
(v) all
Liabilities set forth in Section 2.02(a)(v) of the Disclosure
Schedule.
(b)
Excluded Liabilities . The Seller shall retain, and shall be
responsible for paying, performing and discharging when due, and
the Purchaser shall not assume or have any responsibility for, any
Liabilities not expressly set forth in Section 2.02
(a) above (the “ Excluded Liabilities
”).
SECTION
2.03. Purchase Price; Allocation of Purchase Price The
purchase price for the Purchased Assets shall be Two Million Three
Hundred and Five Thousand Dollars ($2,305,000) (the “
Purchase Price ”).
(b) The
sum of the Purchase Price and the Liabilities required for Tax
purposes shall be allocated among the Purchased Assets as
reasonably proposed by WEDC directly following the Closing (the
“ Allocation ”). Any subsequent adjustments to
the sum of the Purchase Price and the Liabilities required for Tax
purposes shall be reflected in the Allocation in a manner
consistent with Section 1060 of the Code and the Regulations
thereunder. For all Tax purposes, the Purchaser and the Seller
agree that the transactions contemplated by this Agreement shall be
reported in a manner consistent with the terms of this Agreement,
including the Allocation, and that neither of them will take any
position inconsistent therewith in any Tax Return, in any refund
claim, in any litigation, or otherwise. Each of the Seller and the
Purchaser agrees to cooperate with the other in preparing IRS
Form 8594, and to furnish the other with a copy of such form
prepared in draft form within a reasonable period before its filing
due date.
SECTION
2.04. Closing . Subject to the terms and conditions of this
Agreement, the sale and purchase of the Purchased Assets and the
assumption of the Assumed Liabilities contemplated by this
Agreement shall take place at a closing (the “ Closing
”) to be
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held at the
offices of Snell & Wilmer LLP, One Arizona Center, Phoenix, AZ
85004 at 10:00 a.m. Arizona time on the date hereof or at such
other place or at such other time or on such other date as the
Seller and the Purchaser may mutually agree upon in
writing.
SECTION
2.05. Closing Deliveries by the Seller . At the Closing, the
Seller shall deliver or cause to be delivered to the
Purchaser:
(a) executed
counterparts of each of the Agreement, the Bill of Sale, each
Assignment of Lease, the Assignment of Transferred Intellectual
Property and such other instruments, in form and substance
satisfactory to the Purchaser, as may be reasonably requested by
the Purchaser to effect the transfer of the Purchased Assets to the
Purchaser or evidence such transfer on the public records, in each
case duly executed by the Seller;
(b) a receipt for
the Purchase Price;
(c) a true and
complete copy, certified by the Secretary (or other authorized
officer) of the Seller, of the resolutions duly and validly adopted
by the Board of Directors of the Seller evidencing its
authorization of the execution and delivery of this Agreement and
the Ancillary Agreements and the consummation of the transactions
contemplated hereby and thereby; and
(d) a certificate
of the Secretary (or other authorized officer) of the Seller
certifying the name(s) and signature(s) of the officer(s) of the
Seller authorized to sign this Agreement and the Ancillary
Agreements and the other documents to be delivered hereunder and
thereunder; provided that this certificate may be delivered as part
of the certificate required under Section 2.05(c)
hereof.
SECTION
2.06. Closing Deliveries by the Purchaser . At the Closing,
the Purchaser shall deliver to the Seller:
(a) the Purchase
Price by wire transfer in immediately available funds to the
Purchase Price Bank Account;
(b) executed
counterparts of each of the Agreement, the Bill of Sale, Assignment
of Lease , the Assignment of Transferred Intellectual Property and
such other instruments, in form and substance satisfactory to the
Seller, as may be requested by the Seller to effect the assumption
by the Purchaser of the Assumed Liabilities and to evidence such
assumption in the public records;
(c) a true and
complete copy, certified by the Secretary (or other authorized
officer) of Parent and the Purchaser, of the resolutions duly and
validly adopted by the Board of Directors (or other duly authorized
body) of Parent and the Purchaser evidencing its authorization of
the execution and delivery of this Agreement and the Ancillary
Agreements to which it is a party and the consummation of the
transactions contemplated hereby and thereby; and
(d) a certificate
of the Secretary (or other authorized officer) of Parent and the
Purchaser certifying the names and signatures of the officers of
Parent and the Purchaser
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authorized to
sign this Agreement and the Ancillary Agreements and the other
documents to be delivered hereunder and thereunder.
REPRESENTATIONS AND WARRANTIES
OF THE SELLER
WEDC
and the Seller hereby each represents and warrants to the
Purchaser, as of the date hereof or, if a representation or
warranty is made as of a specified date, as of such date, as
follows:
SECTION
3.01. Organization, Authority and Qualification of the
Seller . The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its incorporation and has all necessary corporate power and
authority to enter into this Agreement and the Ancillary
Agreements, to carry out its obligations hereunder and thereunder
and to consummate the transactions contemplated hereby and thereby.
The Seller is duly licensed or qualified to do business and is in
good standing in each jurisdiction which the properties leased by
it or the operation of its business makes such licensing or
qualification necessary, except to the extent that the failure to
be so licensed, qualified or in good standing would not (a)
adversely affect the ability of the Seller to carry out its
obligations under, and to consummate the transactions contemplated
by, this Agreement and the Ancillary Agreements, or
(b) otherwise have a Material Adverse Effect. The execution
and delivery of this Agreement and the Ancillary Agreements by the
Seller, the performance by the Seller of its obligations hereunder
and thereunder and the consummation by the Seller of the
transactions contemplated hereby and thereby have been duly
authorized by all requisite action on the part of the Seller and
its stockholder. This Agreement has been, and upon their execution
the Ancillary Agreements shall have been, duly executed and
delivered by the Seller, and (assuming due authorization, execution
and delivery by the Purchaser) this Agreement constitutes, and upon
their execution the Ancillary Agreements shall constitute, legal,
valid and binding obligations of the Seller, enforceable against
the Seller in accordance with their respective terms.
SECTION
3.02. No Conflict . Assuming that all consents, approvals,
authorizations and other actions described in Section 3.02
have been obtained, all filings and notifications listed in
Section 3.02 of the Disclosure Schedule have been made and any
applicable waiting period has expired or been terminated, and
except as may result from any facts or circumstances relating
solely to the Purchaser, the execution, delivery and performance of
this Agreement and the Ancillary Agreements by the Seller do not
and will not (a) violate, conflict with or result in the
breach of the certificate of incorporation or by laws (or similar
organizational documents) of the Seller, (b) conflict with or
violate any Law or Governmental Order applicable to the Seller, or
(c) except as set forth in Section 3.02(c) of the
Disclosure Schedule, conflict with, result in any breach of,
constitute a default (or event which with the giving of notice or
lapse of time, or both, would become a default) under, require any
consent under, or give to others any rights of termination,
acceleration or cancellation of, any note, bond, mortgage or
indenture, contract, agreement, lease, sublease, license, permit,
franchise or other
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instrument or
arrangement to which the Seller is a party, except, in the case of
clauses (b) and (c), as would not (i) materially and
adversely affect the ability of the Seller to carry out its
obligations under, and to consummate the transactions contemplated
by, this Agreement and the Ancillary Agreements or
(ii) otherwise have a Material Adverse Effect.
SECTION
3.03. Governmental Consents and Approvals . The execution,
delivery and performance of this Agreement and the Ancillary
Agreements by the Seller do not and will not require any consent,
approval, authorization or other order of, action by, filing with
or notification to, any Governmental Authority, except (a) as
described in Section 3.03 of the Disclosure Schedule,
(b) where failure to obtain such consent, approval,
authorization or action, or to make such filing or notification,
would not prevent or materially delay the consummation by the
Seller or the transactions contemplated by this Agreement and the
Ancillary Agreements and would not have a Material Adverse Effect,
or (c) as may be necessary as a result of any facts or
circumstances relating solely to the Purchaser or any of its
Affiliates.
SECTION
3.04. Compliance with Laws . Except as set forth in
Section 3.04 of the Disclosure Schedule and as would not
(a) adversely affect the ability of the Seller to carry out
its obligations under, and to consummate the transactions
contemplated by, this Agreement and the Ancillary Agreements or
(b) otherwise have a Material Adverse Effect, the Seller has
conducted and continues to conduct the Business in accordance with
all Laws and Governmental Orders applicable to the Business and the
Seller and the Seller is not in violation of any such Law or
Governmental Order.
SECTION
3.05. Intellectual Property . Section 3.05 of the
Disclosure Schedule sets forth a true and complete list of all
patents and patent applications, registered trademarks and
trademark applications, and registered copyrights and copyright
applications included in the Transferred Intellectual Property. To
the knowledge of the Seller and WEDC, (a) no person is
engaging in any activity that infringes any Transferred
Intellectual Property, and (b) no claim has been asserted to
the Seller and/or WEDC that the use of any Transferred Intellectual
Property infringes the patents, trademarks, or copyrights of any
third party. Except as would not have a Material Adverse Effect,
with respect to each item of Transferred Intellectual Property, the
Seller is the owner of the entire right, title and interest in and
to such Transferred Intellectual Property.
SECTION
3.06. Real Property . Section 3.06 of the Disclosure Schedule
lists the street address of each parcel of Leased Real Property and
the identity of the lessor, lessee and current occupant (if
different from lessee) of each such parcel of Leased Real Property.
Except as would not have a Material Adverse Effect or except as
described in Section 3.07 of the Disclosure Schedule,
(i) the Seller has delivered to the Purchaser, true and
complete copies of the leases in effect at the date hereof relating
to the Leased Real Property and (ii) there has not been any
sublease or assignment entered into by the Seller in respect of the
leases relating to the Leased Real Property.
SECTION
3.07. Purchased Assets . As of the Closing, the Seller owns,
leases or has the legal right to use all the Purchased Assets free
and clear of all Encumbrances, except as set forth in the
Disclosure Schedule.
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SECTION
3.08. Taxes . Except as set forth in Section 3.08 of
the Disclosure Schedule, and except for matters that would not have
a Material Adverse Effect, to the Seller’s knowledge,
(a) all Tax Returns required to have been filed by or with
respect to the Purchased Assets and the Business have been timely
filed (taking into account any extension of time to file granted or
obtained); (b) all Taxes shown to be payable on such Tax
Returns have been paid or will be timely paid; (c) no
deficiency for any material amount of Tax has been asserted or
assessed by a Governmental Authority in writing against the Seller
that has not been satisfied by payment, settled or
withdrawn.
SECTION
3.09. Brokers . No broker, finder or investment banker is
entitled to any brokerage, finder’s or other fee or
commission in connection with the transactions contemplated by this
Agreement or the Ancillary Agreements based upon arrangements made
by or on behalf of the Seller.
SECTION
3.10. Environmental Claims . To the knowledge of the Seller
and WEDC, there are no claims or proceedings pending or threatened
in writing that would give rise to any Environmental
Liability.
SECTION
3.11. Information Provided . All information and documents
provided to the Purchaser, the Parent, and/or the Purchaser’s
and/or Parent’s counsel in response to the Parent’s
counsel’s due diligence request and otherwise is, to the best
of the Seller’s and WEDC’s knowledge,
accurate.
SECTION
3.12. Disclaimer of the Seller . (A) THE BUSINESS,
INCLUDING THE PURCHASED ASSETS, IS BEING SOLD ON AN “AS
IS”, “WHERE IS” BASIS AS OF THE CLOSING AND IN
ITS CONDITION AS OF CLOSING WITH “ALL FAULTS” AND,
EXCEPT AS SET FORTH IN THIS ARTICLE III, NONE OF THE SELLER, ITS
AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES OR REPRESENTATIVES MAKE OR HAVE MADE ANY OTHER
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN
EQUITY, IN RESPECT OF THE BUSINESS OR ANY OF THE PURCHASED ASSETS,
INCLUDING WITH RESPECT TO (I) MERCHANTABILITY OR FITNESS FOR
ANY PARTICULAR PURPOSE, (II) THE OPERATION OF THE BUSINESS BY
THE PURCHASER AFTER THE CLOSING IN ANY MANNER OTHER THAN AS USED
AND OPERATED BY THE SELLER, OR (III) THE PROBABLE SUCCESS OR
PROFITABILITY OF THE BUSINESS AFTER THE CLOSING AND (B) EXCEPT
AS IT MAY APPLY TO SELLER AND WEDC EXPLICITLY AND DIRECTLY DUE TO
BREACHES OF REPRESENTATIONS THEY HAVE MADE IN THIS ARTICLE III,
NONE OF THE SELLER, WEDC OR THEIR AFFILIATES, OR ANY OF THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES WILL
HAVE OR BE SUBJECT TO ANY LIABILITY OR INDEMNIFICATION OBLIGATION
TO THE PURCHASER OR TO ANY OTHER PERSON RESULTING FROM THE
DISTRIBUTION TO THE PURCHASER, ITS AFFILIATES OR REPRESENTATIVES
OF, OR THE PURCHASER’S USE OF, ANY INFORMATION RELATING TO
THE BUSINESS, AND ANY INFORMATION, DOCUMENTS OR MATERIAL
MADE
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AVAILABLE TO
THE PURCHASER, WHETHER ORALLY OR IN WRITING, IN CERTAIN “DATA
ROOMS,” MANAGEMENT PRESENTATIONS, FUNCTIONAL
“BREAK-OUT” DISCUSSIONS, RESPONSES TO QUESTIONS
SUBMITTED ON BEHALF OF THE PURCHASER OR IN ANY OTHER FORM IN
EXPECTATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. ANY
SUCH OTHER REPRESENTATION OR WARRANTY IS HEREBY EXPRESSLY
DISCLAIMED.
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
Parent and the
Purchaser hereby each represents and warrants to the Seller as
follows:
SECTION
4.01. Organization and Authority of the Purchaser . The
Purchaser is a limited liability company duly organized, validly
existing and in good standing under the laws of Oregon and has all
necessary corporate power and authority to enter into this
Agreement and the Ancillary Agreements to which it is a party, to
carry out its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby. The
Purchaser is duly licensed or qualified to do business and is in
good standing in each jurisdiction which the properties owned or
leased by it or the operation of its business makes such licensing
or qualification necessary, except to the extent that the failure
to be so licensed, qualified or in good standing would not
adversely affect the ability of Purchaser to carry out its
obligations under, and to consummate the transactions contemplated
by, this Agreement and the Ancillary Agreements. The execution and
delivery by the Purchaser of this Agreement and the Ancillary
Agreements to which it is a party, the performance by the Purchaser
of its obligations hereunder and thereunder and the consummation by
the Purchaser of the transactions contemplated hereby and thereby
have been duly authorized by all requisite corporate action on the
part of the Purchaser. This Agreement has been, and upon their
execution the Ancillary Agreements to which the Purchaser is a
party shall have been, duly executed and delivered by the
Purchaser, and (assuming due authorization, execution and delivery
by the Seller) this Agreement constitutes, and upon their execution
the Ancillary Agreements to which the Purchaser is a party shall
constitute, legal, valid and binding obligations of the Purchaser,
enforceable against the Purchaser in accordance with their
respective terms.
SECTION
4.02. No Conflict . Assuming the making and obtaining of all
filings, notifications, consents, approvals, authorizations and
other actions referred to in Section 4.03, the execution,
delivery and performance by the Purchaser of this Agreement and the
Ancillary Agreements to which it is a party do not and will not
(a) violate, conflict with or result in the breach of any
provision of the certificate of incorporation or by laws (or
similar organizational documents) of the Purchaser,
(b) conflict with or violate any Law or Governmental Order
applicable to the Purchaser or its respective assets, properties or
businesses or (c) conflict with, result in any breach of,
constitute a default (or event which with the giving of notice or
lapse of time, or both, would become a default) under, require any
consent under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation or cancellation of,
any note, bond, mortgage or indenture, contract, agreement, lease,
sublease, license, permit, franchise or other instrument or
arrangement to which the Purchaser is a party,
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except, in the
case of clauses (b) and (c), as would not materially and
adversely affect the ability of the Purchaser to carry out its
obligations under, and to consummate the transactions contemplated
by, this Agreement and the Ancillary Agreements.
SECTION
4.03. Governmental Consents and Approvals . The execution,
delivery and performance by the Purchaser of this Agreement and the
Ancillary Agreements to which the Purchaser is a party do not and
will not require any consent, approval, authorization or other
order of, action by, filing with, or notification to, any
Governmental Authority, except where failure to obtain such
consent, approval, authorization or action, or to make such filing
or notification, would not prevent or materially delay the
consummation by the Purchaser of the transactions contemplated by
this Agreement and the Ancillary Agreements.
SECTION
4.04. Financing . The Purchaser has sufficient immediately
available funds to pay, in cash, the Purchase Price and all other
amounts payable pursuant to this Agreement and the Ancillary
Agreements or otherwise necessary to consummate all the
transactions contemplated hereby and thereby.
SECTION
4.05. Brokers
. No broker, finder
or investment banker is entitled to any brokerage, finder’s
or other fee or commission in connection with the transactions
contemplated by this Agreement or Ancillary Agreements based upon
arrangements made by or on behalf of Parent or the
Purchaser.
SECTION
4.06. Independent Investigation; Seller’s
Representations . Parent and the Purchaser have each conducted
its own independent investigation, review and analysis of the
business, operations, assets, liabilities, results of operations,
financial condition, software, technology and prospects of the
Business, which investigation, review and analysis was done by
Parent, the Purchaser and its Affiliates and representatives.
Parent and Purchaser acknowledges that it and its representatives
have been provided adequate access to the personnel, properties,
premises and records of the Business for such purpose. In entering
into this Agreement, Parent and the Purchaser acknowledges that it
has relied solely upon the aforementioned investigation, review and
analysis and not on any factual representations or opinions of the
Seller or its representatives (except the specific representations
and warranties of the Seller set forth in Article III and the
schedules thereto). Parent and the Purchaser hereby acknowledges
and agrees that (a) other than the representations and
warranties made in Article III, none of the Seller, its
Affiliates, or any of their respective officers, directors,
employees or representatives make or have made any representation
or warranty, express or implied, at law or in equity, with respect
to the Purchased Assets or the Business, including any
representations or warranties as to (i) merchantability or fitness
for any particular use or purpose, (ii) the operation of the
Business by the Purchaser after the Closing in any manner other
than as used and operated by the Seller, or (iii) the probable
success or profitability of the Business after the Closing and
(b) except as it may apply to Parent and Purchaser explicitly
and directly due to breaches of representatives set forth in this
Article IV, none of Parent, Purchaser or their Affiliates, or
any of their respective officers, directors, employees or
representatives will have or be subject to any liability or
indemnification obligation to Parent or the Purchaser or to any
other Person resulting from the distribution to Parent or the
Purchaser or their Affiliates or representatives of, or
Parent’s or the Purchaser’s use of, any information
relating to the Business, including any information, documents or
material made available to Parent or the Purchaser, whether orally
or in writing, in
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certain
“data rooms,” management presentations, functional
“break-out” discussions, responses to questions
submitted on behalf of Parent or the Purchaser or in any other form
in expectation of the transactions contemplated by this
Agreement.
SECTION
5.01. Access to Information . (a) From the date hereof
until the Closing, upon reasonable notice, the Seller shall
(i) afford the Purchaser and its authorized representatives
reasonable access to the offices, properties and books and records
of the Seller (to the extent relating solely to the Business) and
(ii) furnish to the officers, employees, and authorized agents
and representatives of the Purchaser such additional financial and
operating data and other information regarding the Business (or
copies thereof) as the Purchaser may from time to time reasonably
request; provided , however , that any such access or
furnishing of information shall be conducted at the
Purchaser’s expense, during normal business hours, under the
supervision of the Seller’s personnel and in such a manner as
not to interfere with the normal operations of the Business.
Notwithstanding anything to the contrary in this Agreement, the
Seller shall not be required to disclose any information to the
Purchaser if such disclosure would, in the Seller’s sole
discretion, (i) cause significant competitive harm to the
Business if the transactions contemplated hereby are not
consummated, (ii) jeopardize any attorney-client or other legal
privilege or (iii) contravene any applicable Laws, fiduciary
duty or binding agreement entered into prior to the date hereof,
including, but not limited to restrictions placed on WEDC and the
Seller pursuant to ITAR compliance requirements.
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