Exhibit 2.01
ASSET PURCHASE
AGREEMENT
between
International Business Machines
Corporation
(as
“Buyer”)
and
Adaptec, Inc.
(as
“Seller”)
Dated: September 30,
2005
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TABLE OF CONTENTS
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ASSET PURCHASE
AGREEMENT
THIS AGREEMENT, dated as of
September 30, 2005, by and among INTERNATIONAL BUSINESS
MACHINES CORPORATION, a New York corporation (“Buyer”),
and ADAPTEC, INC., a Delaware corporation
(“Seller”).
W
I T N
E S S E T H
:
WHEREAS , Seller had previously purchased from Buyer
certain assets then used in Buyer’s iSeries and
pSeries internal storage RAID controller development
operations pursuant to that certain Asset Purchase Agreement dated
as of June 28, 2004, Seller acquired and licensed certain
related intellectual property, and Seller and Buyer entered into
various other service, supply and transition agreements (the
“Prior Transaction”);
WHEREAS , Seller desires to sell to Buyer certain assets
used in Seller’s RAID controller development operations (the
“Operation”), and the parties will terminate certain
obligations of the parties with respect to certain of the various
agreements entered into in connection with the Prior Transaction;
and
WHEREAS , Buyer wishes to purchase from Seller, and
Seller wishes to sell to Buyer, the Transferred Assets for the
purchase price and subject to the terms and conditions hereinafter
set forth.
NOW, THEREFORE
, in consideration of the premises
set forth above and the respective covenants, agreements,
representations and warranties hereinafter set forth, Buyer and
Seller hereby agree as follows:
Definitions.
Certain
Definitions. As used in this Agreement, the following terms
shall have the meanings specified below:
“Affiliate” shall mean, as to any Person, any other Person
or entity which is controlling, controlled by or under common
control with such Person or entity.
“Allocation
Statements” shall
have the meaning set forth in Section 3.1.
“Amendment #1 to the Custom
Sales Agreement” shall mean the amendment so entitled between the
Parties, entered into on the Date of Execution.
“Amendment and License
Agreement” shall
mean the agreement so entitled between the Parties, entered into on
the Date of Execution.
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“Bill of
Sale” shall mean
the Bill of Sale in the form set out in Exhibit B to be
entered into by the Parties on the Closing Date.
“Burdensome
Condition” shall
mean any action taken, or credibly threatened, by or before any
Governmental Authority or other Person to challenge the legality of
the transactions contemplated by the Operative Agreements or that
would otherwise deprive a Party of the material benefit of any such
transaction, including (i) the pendency of an investigation by
a Governmental Authority (formal or informal), (ii) the
institution of any litigation, or threat thereof, (iii) an
order by a Governmental Authority of competent jurisdiction
preventing consummation of the transactions contemplated by the
Operative Agreements or placing material conditions or limitations
upon such consummation, or (iv) the issuance of any subpoena,
civil investigative demand or other request for documents or
information relating to such transactions that is unreasonably
burdensome in the reasonable judgment of the applicable
Person.
“Closing”
shall have the meaning set forth in
Section 2.1.
“Closing
Date” shall have
the meaning set forth in Section 2.1.
“Code”
shall have the meaning set forth in
Section 3.1.
“Confidentiality
Agreement” shall
mean that Confidential Disclosure Agreement, No. PCC970051
between Buyer and Seller dated May 14, 1997 and Supplement
No. 4905RS0495 thereto dated September 15,
2005.
“Custom Sales
Agreement” shall
mean the Custom Sales Agreement (# 001906), Semiconductor Custom
Manufacturing Attachment No. 1 attached thereto and Product
Attachment No. 2 attached thereto, all of which were entered
into on June 28, 2004.
“Date of
Execution” shall
mean the date this Agreement and the other Operative Agreements
identified for signature on that date are signed.
“Disclosure
Schedule” shall
have the meaning set forth in Article VI hereto.
“Employees” shall have the meaning set forth in
Section 4.1.
“Escrow
Agreement” shall
mean the agreement so entitled among the Parties and the escrow
agent, entered into on June 28, 2004.
“Escrow Termination
Letter” shall mean
the letter between the Parties to be sent by Seller to the escrow
agent to terminate the Escrow Agreement.
“Governmental
Actions” shall mean
any authorizations, consents, approvals, waivers, exceptions,
variances, franchises, permissions, permits, and licenses of, and
filings and declarations with, Governmental Authorities, including
the expiration or termination of waiting periods imposed under the
HSR Act.
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“Governmental
Authority” shall
mean any applicable federal, state or local court, governmental or
administrative agency or commission or other governmental agency,
authority, instrumentality or regulatory body, domestic or foreign
with jurisdiction over the matter.
“Governmental
Rule” shall mean
any applicable statute, law, treaty, rule, code, ordinance,
regulation or order of any Governmental Authority or any judgment,
decree, injunction, writ, order or like action of any federal,
state or local court, arbitrator or other judicial tribunal of
competent jurisdiction, domestic or foreign.
“Hosting Statement of
Work” shall mean
the agreement so entitled between the Parties, entered into on
February 18, 2005, incorporating by reference the IBM Customer
Agreement, including the attachment entitled e-business hosting
service option attachment thereto.
“HSR Act”
shall mean the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended.
“Intellectual Property
Agreement” shall
mean the agreement so entitled between the Parties, entered into on
June 29, 2004, amendment #1 thereto, entered into on
December 30, 2004 and amendment #2 thereto, entered into on
May 16, 2005.
“Liabilities”
shall mean debts, liabilities and
obligations (whether accrued or fixed, absolute or contingent,
matured or unmatured, known or unknown).
“Liens”
shall mean pledges, claims, liens,
charges, encumbrances and security interests of any kind or nature
whatsoever.
“Limitation
Amount” shall have
the meaning set forth in Section 9.2.
“Operative
Agreements” shall
mean this Agreement, the Bill of Sale, the Amendment and License
Agreement, the Termination Agreement, the Supply Termination
Agreement, Amendment #1 to the Custom Sales Agreement, the
Secondment Agreement, the Real Estate License, the Technical
Services Agreement and the Transition Services
Agreement.
“Parties”
shall mean Buyer and
Seller.
“Party”
shall mean Buyer or
Seller.
“Permitted
Liens” shall
mean: (i) Liens for Taxes, assessments and governmental
charges due and being contested in good faith by Seller;
(ii) any Liens upon any of the Transferred Assets, provided
that the same are not of such a nature that would materially
adversely affect the value of the Transferred Assets, taken as a
whole; (iii) Liens for Taxes either not due and payable or due
but for which notice of assessment has not been given, or which may
thereafter be paid without penalty; (iv) undetermined or
inchoate Liens, charges and privileges incidental to current
operations or the ordinary course of business; any statutory Liens,
charges, adverse claims, security interests or encumbrances of any
nature whatsoever claimed or held by any Governmental Authority
that have not at the time been filed or registered against title to
the Transferred Assets or that relate to obligations that are not
due or delinquent; (v) security given in the ordinary course
of business to any public utility, Governmental
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Authority or to any statutory or public
authority in connection with the Transferred Assets;
(vi) other imperfections of title or encumbrances, if any,
which imperfections of title or other encumbrances do not
materially impair the use of the assets to which they relate, and
(vii) terms and conditions pertaining to the software
comprising the Transferred Assets.
“Person”
shall mean any individual, firm,
corporation, partnership, limited liability company, trust, joint
venture, Governmental Authority or other entity, and shall include
any successor (by merger or otherwise) of such entity.
“Pre-Closing Tax
Period” shall have
the meaning set forth in Section 3.2.
“Prior Real Estate
License” shall mean
the agreement so entitled between the Parties entered into on
June 28, 2004, as amended.
“Prior Technical Services
Agreement” shall
mean the agreement so entitled between the Parties, entered into on
June 28, 2004 and amendment # 1 thereto, entered into on
July 15, 2004.
“Prior Transition Services
Agreement” shall
mean the agreement (including the Service Description Attachments
thereto) entitled as the transition services agreement between the
Parties, entered into on June 28, 2004 and amendment #1
thereto, entered into on August 3, 2005.
“Purchase
Price” shall have
the meaning specified in Section 1.3.
“Real Estate
License” shall mean
the agreement so entitled between the Parties entered into on the
Date of Execution.
“Regular
Employees” shall
have the meaning set forth in Section 4.1.
“Released
Obligations” shall
mean the following debts or obligations: (i) Three
Million Six Hundred and Fifty Thousand Dollars ($3,650,000) owed by
Seller to Buyer on September 1, 2005 as set forth under
Section 7.1.1 of the Intellectual Property Agreement,
(ii) Two Million Four Hundred Fifty Thousand Dollars
($2,450,000) owed by Seller to Buyer under invoice #290995 dated
June 21, 2005, (iii) all amounts owed by Seller to Buyer
under Section 6.0 of the Services Statements of Work, and
(iv) all amounts allegedly owed by Seller to Buyer under
Section 10.0 of the attachment to the Hosting Statement of
Work relating to Virtual Private Network services.
“Secondment
Agreement” shall
mean the agreement so entitled between the Parties entered into on
the Date of Execution.
“Services Statements of
Work” shall mean
the statement of work #1 and the statement of work #2 between the
Parties each entered into on June 30, 2005, both of which
incorporate by reference the terms and conditions of services
agreement #2.
“Subsidiary” of any Person shall mean a corporation, company,
or other entity (i) more than 50% of whose outstanding shares
or securities (representing the right to vote for the election of
directors or other managing authority) are, or (ii) which does
not have outstanding shares or securities (as may be the case in a
partnership, limited liability company, joint venture or
unincorporated
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association), but more than 50% of whose
ownership interest representing the right to make decisions for
such entity is, now or hereafter owned or controlled, directly or
indirectly, by such Person, but such corporation, company or other
entity shall be deemed to be a Subsidiary only so long as such
ownership or control exists.
“Supply Termination
Agreement” shall
mean the agreement entitled termination of supply agreement between
the Parties, entered into on the Date of Execution.
“Tax” or
“Taxes” shall
have the meaning set forth in Section 3.5.
“Tax
Returns” shall have
the meaning set forth in Section 3.2.
“Technical Services
Agreement” shall
mean the agreement entitled the Services Agreement between the
Parties, entered into on January 5, 2005, and the Statement of
Work attached thereto, entered into on the Date of
Execution.
“Termination
Agreement” shall
mean the Termination and Release Agreement entered into on the Date
of Execution, terminating the Prior Transition Services Agreement,
the Escrow Agreement, the Prior Technical Services Agreement, the
Prior Real Estate License, the Services Statements of Work, and the
Yearly Software Agreement, respectively, and releasing the parties
from the Released Obligations.
“Transferred
Assets” shall mean
such items of equipment and software as are listed on the
sub-schedules to Schedule 1.1 to this Agreement as the same
may be depleted or augmented prior to the Closing Date while being
managed in the ordinary course of business.
“Transferred
Employee” shall
have the meaning set forth in Section 4.1.
“Transition Services
Agreement” shall
mean the agreement so entitled between the Parties, entered into on
the Date of Execution.
“Yearly Software
Agreement” shall
mean the agreement so entitled between the Parties, entered into on
June 28, 2004.
Article I.
Purchase and Sale of Assets .
1.1.
Transferred Assets . Upon the terms and
subject to the conditions hereof, as of the Closing Date, Seller
hereby sells, transfers, conveys, assigns and delivers to Buyer,
and Buyer hereby purchases and accepts from Seller, all right,
title and interest of Seller in and to the Transferred Assets
listed on sub-schedules to Schedule 1.1 hereto free and clear
of all Liens other than Permitted Liens. The Transferred
Assets will be made available on the Closing Date, where then
located. Buyer will be solely responsible for all costs and
expenses associated with transport and delivery of the Transferred
Assets from Seller to Buyer.
1.2.
Excluded Assets . Notwithstanding
anything to the contrary in this Agreement, any assets not set
forth on Schedule 1.1 will be retained by Seller and are
excluded from the Transferred
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Assets (the “Excluded Assets”),
including (i) any interests of Seller in real property and any
fixtures related thereto not explicitly referenced on
Schedule 1.1, (ii) any interest in any of Seller’s
accounts receivables, and (iii) any interest in products or
services shipped or provided to third parties, directly or
indirectly, by Seller or Seller’s Affiliates. Other than
Section 4.2 and the consideration for the intellectual
property rights granted by Seller in Section 1.3, intellectual
property matters are addressed in the Amendment and License
Agreement, and no intellectual property matters are included in the
subject matter of this Agreement.
1.3.
Consideration . (a) The Purchase
Price to be paid by Buyer to Seller for the Transferred Assets (the
“Purchase Price”) shall be [to be agreed upon after
finalization of asset list] . In addition to the Purchase
Price, the consideration to be paid by Buyer to Seller at Closing
for the licenses set forth in the Amendment and License Agreement
shall be Twenty Two Million Dollars ($22,000,000.00).
Therefore, on the Closing Date and subject to Article VII,
Buyer shall pay to Seller the aggregate amount of consideration set
forth in this Section 1.3. by electronic funds transfer, such
sum in immediately available funds in U.S. Dollars. The
Purchase Price and the consideration payable pursuant to the
Amendment and License Agreement shall be paid to the following
account:
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Bank:
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Bank of America #1233
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1850 Gateway Blvd.
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Concord, CA 94520
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ABA #:
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121000358
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SWIFT:
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BOFAUS6S
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Payee Name:
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Adaptec, Inc.
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Credit Account:
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1233256288
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Bank Contact:
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Telephone Number:
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(b) In addition to the
Purchase Price and the consideration to be paid by Buyer to Seller
at Closing for the licenses set forth in the Amendment and License
Agreement, Seller has agreed to waive and relinquish any and all
rights or interest in and to the Released Obligations.
Therefore, on the Closing Date and subject to Article VII,
Buyer, on behalf of itself and its subsidiaries and Affiliates,
shall be deemed to have waived and released Seller and its
officers, directors, employees and agents and Affiliates in full
from any and all claims, Liabilities or payment with respect to the
Released Obligations, pursuant to the Termination Agreement to be
executed and delivered by Buyer on the Date of
Execution.
1.4.
No Assumed Liabilities . The Parties acknowledge
and agree that under this Agreement Buyer is not assuming any of
Seller’s Liabilities whether now existing or hereafter
arising, including without limitation accounts payable, accrued
expenses, and taxes that relate to the period prior to the Closing,
all liabilities and obligations of Seller with respect to current
or former employees, directors and independent contractors of
Seller prior to the Closing Date and all liabilities and
obligations of Seller with respect to leases, supply agreements or
other contracts and agreements, other than as expressly provided in
Article IV with respect to Transferred Employees.
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Article II.
Closing .
2.1.
Closing Date . Subject to and upon
satisfaction or waiver of the conditions set forth in Articles VII
and VIII below, the closing of the transaction provided for in this
Agreement (the “Closing”) shall take place at the
offices of Seller on the first business day following the
satisfaction or waiver of all conditions set forth in Articles VII
and VIII, or at such other time or on such other date as may be
agreed by Seller and Buyer (the “Closing Date”).
All transactions provided for herein to occur on and as of the
Closing Date shall be deemed to have occurred simultaneously and to
be effective as soon as the Parties have completed the Closing or
as of the close of business on the Closing Date, whichever first
occurs. Not withstanding anything to the contrary in any of
the Operative Agreements, none of the Operative Agreements (other
than this Agreement) shall become effective unless and until a
Closing is consummated.
Article III. Tax
Matters .
3.1.
Allocation of Consideration . Buyer and Seller agree
on a tax allocation of the consideration, set forth in
Schedule 3.1 (the “Allocation Statements”),
allocating the total of the consideration (and other payments
properly treated as additional consideration for Tax purposes) to
the different Transferred Assets pursuant to Section 1060 of
the Internal Revenue Code of 1986, as amended, and the Treasury
Regulations promulgated thereunder (hereinafter, the
“Code”) based on the allocation of value set forth in
Section 1.3.
Buyer and Seller shall each file all
income, franchise and other Tax Returns (as defined below), and
execute such other documents as may be required by any Governmental
Authority, in a manner consistent with the Allocation
Statements. Buyer shall prepare the Form 8594 under
Section 1060 of the Code based on the Allocation Statements
and deliver such form and all documentation used in the preparation
and support of such Allocation Statements and form (including, but
not limited to, appraisals) to Seller within 30 days after
finalizing of the Allocation Statements. Buyer and Seller
agree to file such form with each relevant taxing authority and to
refrain from taking any position inconsistent with such form or
Allocation Statements.
3.2.
Filing of Returns and Payment of Taxes .
Seller shall
prepare and file, or cause to be prepared and filed, with the
appropriate authorities all Tax returns, reports and forms (herein
“Tax Returns”) and shall pay, or cause to be paid, when
due all Taxes relating to the Transferred Assets attributable to
any taxable period which ends on or prior to the Closing Date
(herein “Pre-Closing Tax Period”). Buyer shall
prepare and file, or cause to be prepared and filed, with the
appropriate authorities all Tax Returns, and shall pay, or cause to
be paid, when due all Taxes relating to the Transferred Assets
attributable to taxable periods which are not part of the
Pre-Closing Tax Period. Buyer shall prepare and file, and
cause to be prepared and filed, with the appropriate authorities
all Tax Returns for a Straddle Period (as defined in the next
paragraph), and pay to the applicable authority all Taxes due with
respect to those Tax returns; provided that (i) Buyer shall
deliver any such Tax Returns to Seller at least thirty days before
such Tax Returns are due, (ii) Seller shall have the right to
review and comment upon any such Tax Returns prior to the filing
thereof and (iii) such Tax Returns shall not be filed without
the prior written consent of Seller, which consent shall not be
unreasonable held or delayed. Within ten days of written
demand thereof, but in no event more than ten days prior to the due
date thereof, Seller shall pay Purchaser the amount of Taxes for
the Straddle Period relating to the Pre-Closing Tax Period.
If, in order to properly prepare its Tax Returns or other tax
documents required to be filed with Governmental
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Authorities, it is necessary that a Party be
furnished with additional information, documents or records
relating to the Transferred Assets, both Seller and Buyer agree to
use reasonable efforts to furnish or make available such
non-privileged information at the recipient’s request, cost
and expense provided, however, that no Party shall be entitled to
review or examine the Tax Returns of any other Party.
Notwithstanding anything to the contrary contained herein, a Party
shall only be required to furnish or make available such documents
or records that are maintained in the ordinary course of that
Party’s business and exist at the time of the
request.
For purposes of this Section 3.2, in the
case of any taxable period that includes (but does not end on) the
Closing Date (a “Straddle Period”), the Taxes for the
Pre-Closing Tax Period shall be computed as if the Pre-Closing Tax
Period ended as of the close of business on the Closing Date and
the amount of Taxes for taxable periods that are not part of the
Pre-Closing Tax Period shall be the excess, if any, of (x) the
Taxes for the Straddle Period over (y) the Taxes for the
Pre-Closing Tax Period.
3.3.
Refunds and Credits. Any refunds and credits
attributable to the Pre-Closing Tax Period shall be for the account
of Seller and any refunds and credits attributable to the period
that is not part of the Pre-Closing Tax Period shall be for the
account of Buyer.
3.4.
Transfer Taxes. All transfer,
documentary, sales, use, registration, value-added, and any similar
taxes and related fees (including interest, penalties and additions
to tax) incurred in connection with this Agreement, the other
Operative Agreements and the transactions contemplated hereby and
thereby shall be borne by Buyer, in addition to the consideration
provided for in Section 1.3. To the extent permitted by
applicable law, Buyer and Seller shall cooperate with each other to
obtain exemptions from such taxes, provided that neither party
shall be obligated to seek any exemption that could reasonably be
expected to result in any governmental audit of its books and
records.
3.5.
Tax Definitions. For purposes of this
Agreement, “Tax” or “Taxes” shall mean all
taxes, imposts, duties, withholdings, charges, fees, levies, or
other assessments imposed by any governmental or taxing authority,
whether domestic or foreign, (including but not limited to, income,
excise, property, sales, use, transfer, conveyance, payroll or
other employment related tax, license, registration, ad valorem,
value added, withholding, social security, national insurance (or
other similar contributions or payments), franchise, estimated
severance, stamp taxes, taxes based upon or measured by capital
stock, net worth or gross receipts and other taxes) together with
all interest, fines, penalties and additions attributable to or
imposed with respect to such amounts and any obligations under any
agreement or arrangements with any Person with respect to such
amounts.
Article IV.
Additional Agreements .
4.1.
Employees and Employee Benefits
. (a) Schedule 4.1(a)(1) contains
a list of regular Employees employed by Seller as of the date
hereof in connection with the Operation (including active employees
and employees who are on leave of absence or sick leave) (the
“Regular Employees&
