<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 3, 1999
CORSAIR COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation)
0-25356 77-0390406
(Commission File Number) (IRS Employer Identification No.)
3408 Hillview Avenue, Palo Alto, CA 94304
(Address of principal executive offices) (Zip Code)
(650) 842-3300
(Registrant's telephone number, including area code)
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Item 2. Acquisition or Disposition of Assets.
On February 3, 1999 (the "Closing Date"), Corsair Communications, Inc, a
Delaware corporation ("Corsair"), and its wholly-owned subsidiary, Subscriber
Computing, Inc. ("Subscriber"), sold substantially all of the assets relating to
Subscriber's Communication Resource Manager billing system and certain related
products, including BudgetWatch, CreditWatch, FraudWatch, Prepay (DOS version
only) and RapidRent to Wireless Billing Systems, a California corporation
("Buyer"), pursuant to the terms of an Asset Purchase Agreement of even date
therewith (the "Asset Purchase Agreement").
Pursuant to the terms of the Asset Purchase Agreement, Corsair made an
initial payment of $1,000,000 to the Buyer at the closing and agreed to loan the
Buyer an additional $200,000 pursuant to the terms of a secured promissory note
bearing interest at the rate of 10% per annum, due and payable in 24 months from
the date of issuance.
On or before April 15, 1999, Corsair will prepare a closing balance
sheet as of January 31, 1999, reflecting the assets and liabilities transferred
to Buyer, as adjusted to reflect (i) the actual book value of certain fixed
assets acquired by Buyer, (ii) accounts receivable returned by Seller following
the Closing Date and (iii) prepayments received by Corsair prior to the Closing
Date that are returned by Buyer to customers (the "Closing Balance Sheet"). In
the event that the net asset value, as reflected on the Closing Balance Sheet is
negative, Corsair shall deliver the amount by which such net asset value is
negative to Buyer in cash. In the event that the net asset value, as reflected
on the Closing Balance Sheet is positive, Buyer shall deliver to Corsair a
secured promissory note in the aggregate principal amount by which such net
asset value is positive, bearing interest at the rate of 10% per annum due and
payable in 24 months from the date of issuance.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements of Subscriber.
The Financial Information of Subscriber required to be filed
pursuant to Item 7(a) of Form 8-K was not available at the
time of filing of this Current Report on Form 8-K and will be
filed on a Form 8-K/A as soon as practicable, but in no event
later than 60 days after the date this Form 8-K is required to
be filed.
(b) Pro Forma Financial Statements.
The Pro Forma Financial Information required to be filed
pursuant to Item 7(b) of Form 8-K was not available at the
time of filing of this Current Report on Form 8-K and will be
filed on a Form 8-K/A as soon as practicable, but in no event
later than 60 days after the date this Form 8-K is required to
be filed.
(c) Exhibits.
Exhibit 2.1 Asset Purchase Agreement by and between
Corsair Communications, Inc., Subscriber
Computing, Inc., Wireless Billing Systems
and Avery Communications, Inc., dated
February 3, 1999.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CORSAIR COMMUNICATIONS, INC.
/s/ Mary Ann Byrnes
-----------------------------------
Mary Ann Byrnes, President and
Chief Executive Officer
Date: February 18, 1999
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EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DOCUMENT PAGE
------ -------- ------------
<S> <C> <C>
2.1 Asset Purchase Agreement by and among Corsair Communications, Inc.,
Subscriber Computing, Inc. and Wireless Billing Systems
</TABLE>
<PAGE> 1
EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is entered into as of
February 3, 1999 (the "Effective Date"), by and between Corsair Communications,
Inc., a Delaware corporation ("Corsair"), Subscriber Computing, Inc., a Delaware
corporation and a wholly-owned subsidiary of Corsair ("Subscriber" and together
with Corsair, the "Seller"), Wireless Billing Systems, a California corporation
("Buyer"), and Avery Communications, Inc., a Delaware corporation ("Avery") with
respect to Article 11 hereof only, with reference to the following facts:
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to
sell to Buyer, certain assets of Seller on the terms and subject to the
conditions of this Agreement.
WHEREAS, Corsair is the parent company of Subscriber, and is interested
in and benefits from the transactions described in this Agreement.
WHEREAS, Avery is interested in and benefits from the transactions
described in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premise and the
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
ARTICLE 1
PURCHASE AND SALE OF SELECTED ASSETS
1.1 Purchase and Sale. Subject to the terms and conditions set forth in
this Agreement, on the Closing Date (as defined in Section 10.1 below), Seller
shall sell, transfer, assign and deliver to Buyer and Buyer shall purchase,
accept and acquire from Seller, all of Seller's right, title and interest in and
to (i) the software programs set forth in Schedule A attached hereto (the
"Software"), including the source code and object code versions thereof, (ii)
the intellectual property rights described in Schedule B attached hereto (the
"Intellectual Property"), (iii) the contracts and other commitments described in
Schedule C attached hereto (the "Contracts"), (iv) certain of the plant,
property and equipment set forth in Schedule D attached hereto (the "Physical
Assets") (v) all accounts receivable reflected on the Closing Balance Sheet (as
defined in Section 2.3) and (vi) all technical, financial, accounting and
business records of Seller specifically related to the assets acquired by Buyer
as set forth in items (i) through (iv) above other than Seller's corporate
records, tax records and other documents necessary for the maintenance of
Seller's corporate structure (the "Records" and, together with the Software, the
Intellectual Property, the Contracts and the Physical Assets, the "Assets"), as
the same shall exist on the Closing Date. On the Closing Date, Seller shall
execute and deliver to Buyer: (i) the Bill of Sale (the "Bill of Sale") in the
form attached hereto as Exhibit A, (ii) the Assignment and Assumption Agreement
(the "Assignment Agreement") in the form attached hereto as Exhibit B, (iii) the
Assignment of Patents, the Trademark Assignments and the Copyright Assignment
(collectively, the "Intellectual Property Assignments"), in the forms attached
hereto as Exhibits C, D and E, respectively (iv) the Sublease (the "Sublease")
in the form attached hereto as Exhibit F (together with all exhibits and
schedules attached thereto, the "Conveyance Documents") and (v) the
Cross-Services Agreement in the form attached hereto as Exhibit G. Seller shall
simultaneously take all additional steps and execute all additional documents
and instruments as are contemplated herein for the transfer of Seller's right,
title and interest in and to the Assets to Buyer. Buyer shall have the right to
contact those employees of Seller whose names are set forth on Schedule E
attached hereto (the "Employees").
1.2 Non-Assignment of Certain Contracts. Schedule F attached hereto
lists certain of the Contracts that are nonassignable or require the consent of
a third-party prior to assignment (the "Restricted Contracts"). Notwithstanding
anything to the contrary in this Agreement, neither this Agreement nor any
action taken pursuant to its provisions shall constitute an assignment or an
agreement to assign the Restricted Contracts if such assignment or attempted
assignment would constitute a breach thereof or result in the loss or diminution
thereof; provided, that in each such case, Seller shall use its reasonable and
good faith efforts to obtain the consent of such other party to an
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assignment to Buyer. If such consent is not obtained, Seller shall cooperate
with Buyer in any reasonable arrangement designed to provide for Buyer the
benefits under any such Restricted Contract.
1.3 Physical Assets. Until March 31, 1999, Buyer may use any of the
Physical Assets that it selects. On March 31, 1999, Buyer shall inform Seller
which Physical Assets it intends to acquire, and shall return all other Physical
Assets to Seller. At such time, Seller shall inform Buyer whether any of the
Physical Assets Buyer intends to acquire are subject to an equipment lease or
other encumbrance. Buyer shall then have the option to return the encumbered
Physical Assets to Seller or to request Seller to, and upon such request Seller
agrees to, use reasonable good faith efforts to obtain all necessary third-party
consents, if any, required to transfer the Physical Assets to Buyer free and
clear of any encumbrances or to assign the equipment lease or encumbrance to
Buyer. All Physical Assets Buyer does not return to Seller in the same condition
as such Physical Assets were received by Buyer, subject to normal wear and tear,
shall be deemed to be Physical Assets acquired by Buyer pursuant to this
Agreement. In addition, all Physical Assets that Buyer returns to Seller subject
to a lien or encumbrance created by Buyer shall be deemed to be Physical Assets
acquired by Buyer pursuant to this Agreement.
1.4 Assumed Liabilities. Buyer hereby agrees to assume, satisfy and
perform when due all liabilities and obligations of the Seller arising from and
after the Closing Date (other than any undisclosed liability or obligation for a
breach or default which occurred prior to the Closing Date) related to the
Assets (the "Assumed Liabilities"). Except for the Assumed Liabilities, Buyer
shall not, by the execution, delivery and performance of this Agreement, assume
or otherwise be responsible for any liability or obligation of any nature of
Seller.
1.5 License from Seller to Buyer. On the Closing Date, Seller hereby
grants to Buyer, and Buyer hereby agrees to accept, to the extent Seller has the
right to grant such, a nonexclusive, irrevocable, transferable, fully paid- up
and royalty free, worldwide right and license, including the right to sublicense
to others, to use, execute, modify, prepare derivatives of, distribute, display
and reproduce the object code and source code for the software program IMR, in
both its Dos and Unix versions, in the field of telecommunications.
1.6 License from Buyer to Seller. On the Closing Date, Buyer hereby
grants to Seller, and Seller hereby agrees to accept, a nonexclusive,
irrevocable, fully paid-up and royalty free, worldwide right and license,
including the right to sub-license to others, to make, have made, use, sell,
practice and have practiced the inventions recited in United States Patent
Numbers 5,148,472 and 5,291,543.
ARTICLE 2
CONSIDERATION
2.1 Consideration. As a material inducement to Buyer's execution of this
Agreement, Seller shall deliver $1,000,000 in cash to Buyer at the Closing (the
"Purchase Price").
2.2 Allocation of Aggregate Purchase Price. The Purchase Price shall be
allocated among the Assets as set forth in the Adjusted Closing Balance Sheet
(as defined in Section 2.3(a) below), which allocation the parties agree are in
compliance with Section 1060 of the Internal Code and Regulations. Buyer and
Seller agree (i) to report the sale of the Assets for federal and state tax
purposes in accordance with the allocations set forth in the Adjusted Closing
Balance Sheet and (ii) not to take any position inconsistent with such
allocations on any of their respective tax returns.
2.3 Closing Balance Sheet Adjustment.
(a) On or prior to February 15, 1999, Seller shall cause to be
prepared and shall deliver to Buyer a balance sheet of the Assets and Assumed
Liabilities as of the close of business on January 31, 1999 (the "Closing
Balance Sheet"). The Closing Balance Sheet shall be prepared in accordance with
generally accepted accounting principles ("GAAP") applied in a manner consistent
with that utilized in preparing the balance sheet dated November 30, 1998, a
copy of which is attached hereto as Schedule G, except that the Closing Balance
Sheet shall not include any reserves against the Accounts Receivable. On or
prior to April 15, 1999, Seller with assistance and cooperation of Buyer shall
adjust items stated in the Closing Balance Sheet to reflect the following as of
March 31,
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1999 (the "Adjustment Date"): (i) any increase or decrease in the Plant,
Property and Equipment required to reflect the actual book value of the Physical
Assets acquired by Buyer hereunder; (ii) a decrease in accounts receivable
resulting from the return of any uncollected Accounts Receivable by Buyer to
Seller on the Adjustment Date and (iii) a decrease in Deferred Revenues if and
to the extent any prepayments made to Seller have been returned by Seller to
customers at the reasonable request of Buyer on or prior to the Adjustment Date
(the Closing Balance Sheet, as adjusted by the foregoing, to be referred to
herein as the "Adjusted Closing Balance Sheet"). For purposes of the adjustments
contemplated in the Adjusted Closing Balance Sheet the unpaid balance of each
customer's Accounts Receivable shall be applied to such customer's Account
Receivable according to the customer's remittance advice. Following the
Adjustment Date any unpaid Accounts Receivable with respect to which an
adjustment pursuant to item (ii) of this Section 2.2(a) has or will be made
shall be assigned by Buyer to Seller (the "Unpaid Accounts Receivable"). Any
amounts received as payments by Buyer with respect to an Unpaid Accounts
Receivable shall be held by Buyer as custodian for Seller and, further, shall be
paid by Buyer to Seller within ten (10) business days of the end of each
calendar month, commencing with the first calendar month ending after the
Adjustment Date. Buyer shall provide reasonable assistance to Seller in
attempting to collect the Unpaid Accounts Receivable.
(b) If Buyer does not dispute the amounts set forth in the
Adjusted Closing Balance Sheet, the Adjusted Closing Balance Sheet shall be
conclusive. If Buyer disputes any amount set forth in the Adjusted Closing
Balance Sheet, Buyer shall so notify Seller in writing (specifying its
objections and the reasons therefor in reasonable detail) within thirty (30)
days following receipt thereof and the parties shall use all reasonable efforts
to resolve any such disputes. If any such dispute cannot be promptly resolved
(but in any event within thirty (30) days after submission of the written
objections of Buyer, the parties agree that they will submit the matter to the
office of JAMS/Endispute located in Irvine, California (or, if none, then the
office of JAMS/Endispute located closest to Irvine, California) to be arbitrated
by a single arbitrator to be mutually selected by the parties. The resolution of
the dispute will be paid one-half by Seller and one-half by Buyer. The Adjusted
Closing Balance Sheet and the information set forth thereon, as finally
determined pursuant to this Section 2.2(b), is hereinafter referred to as the
"Final Adjusted Closing Balance Sheet."
(c) In the event the Net Asset Value set forth in the Final
Adjusted Closing Balance Sheet is negative, Seller shall be liable to pay over
to Buyer an amount in cash equal to amount by which such Net Asset Value is
negative. In the event that the Net Asset Value set forth in the Final Adjusted
Closing Balance Sheet is positive, Buyer shall execute a secured promissory note
("Note") in favor of Seller in the principal amount by which the Net Asset Value
is positive in the form attached hereto as Exhibit H and a related security
agreement ("Security Agreement") in the form attached hereto as Exhibit I.
(d) Any payment required to be made under Sections 2.2(c) and
2.2(d) shall be made within thirty (30) days after the determination thereof.
2.4 Additional Payment. Within thirty (30) after the determination of
the Final Adjusted Closing Balance Sheet, Seller shall fund a loan to Buyer in
the amount of $200,000. In connection with this loan, Buyer shall execute and
deliver to Seller a Note in favor of Seller in the principal amount of $200,000
in the form attached hereto as Exhibit H and a Security Agreement in the form
attached hereto as Exhibit I.
2.5 Consent to Assignment. If *** is *** to *** the *** *** of the
agreement dated *** , between *** , as previously amended, to either *** or ***
of the date of this Agreement, then *** shall *** an *** within thirty (30) days
following the *** of such *** . Buyer shall provide Seller with reasonable
assistance, as requested by Seller and shall execute all documents reasonably
requested by Seller, in furtherance of *** the *** .
2.6 Additional Consideration.
(a) Buyer shall deliver to Seller on February 15, 2000 (the
"Payment Date"), *** of the amount, if any, by which its, together with its
successors or assigns, gross revenues recognized ***.
*** Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
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during the period beginning on the Closing Date through December 31, 1999 (the
"Initial Year"), as determined in accordance with generally accepted accounting
principles ("gaap"), ***. In no event shall the amount paid by Buyer to Seller
pursuant to this Section 2.6(a) *** .
(b) Buyer shall deliver to Seller on the Payment Date, *** of the
amount, if any, by which its, together with its successors or assigns, gross
revenues recognized from *** , during the Initial Year, as determined in
accordance with gaap, *** . In no event shall the amount paid by Buyer to Seller
pursuant to this Section 2.6(b) *** .
(c) Buyer agrees to make and maintain such books, records and
accounts as are reasonably necessary to verify the payments due Seller under
this Section 2.6. At Seller's sole expense, an independent certified public
accountant, selected by Seller and reasonably acceptable to Buyer, may, upon
reasonable notice and during normal business hours, inspect only those records
of Buyer on which the payments to Seller under this Section 2.6 are based.
Buyer's determination of the payments due Seller under this Agreement will be
deemed conclusive unless, within six (6) months from the Payment Date, Seller
notifies Buyer in writing of any error in such payments. If any audit hereunder
reveals that Buyer has failed properly to account for and pay amounts owing to
Seller hereunder, and the amount of any payments which Buyer has failed properly
to account for and pay exceeds, $5,000, Buyer shall reimburse Seller for the
cost of the accountant. Buyer shall also, within thirty (30) days after
notification by Seller, pay to Seller any amounts shown as due under such audit.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF CORSAIR AND SUBSCRIBER
Seller has delivered to Buyer the disclosure schedule attached hereto as
Schedule H (the "Disclosure Schedule"). The section numbers in the Disclosure
Schedule correspond to the section numbers in this Article 3; however, any
information specifically described in one section of the Disclosure Schedule
shall be deemed to constitute an exception to all other sections to which such
description applies where such application can reasonably be ascertained from
such description. Except as set forth in the Disclosure Schedule, Seller hereby
represents and warrants to Buyer as of the Closing Date as follows:
3.1 Corporate Organization. Corsair is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and has all requisite power and authority to enter into this Agreement and
perform its obligations hereunder. Subscriber is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and has all requisite power and authority to enter into this Agreement and
perform its obligations hereunder.
3.2 Authorization. The execution, delivery and performance by Seller of
this Agreement, the Conveyance Documents and all other documents and instruments
contemplated hereby, referenced herein or executed in connection herewith (the
"Related Documents"), and the consummation by Seller of the transactions
contemplated hereby and therein, have been duly authorized and approved by all
necessary corporate proceedings of Corsair and Subscriber. This Agreement, each
Conveyance Document and each Related Document have been duly executed and
delivered by Seller, and each constitutes a legal, valid and binding agreement
of Seller, enforceable against Seller in accordance with their respective terms,
except as limited by bankruptcy, insolvency or other laws of general application
relating to the enforcement of creditors' rights and equitable principles.
3.3 Title; Condition of Physical Assets. Except as set forth in the
Disclosure Schedule, Seller has good and marketable title to all of the Physical
Assets, free and clear of all mortgages, pledges, charges, claims or
restrictions of any kind or character. The Physical Assets are in good condition
with no material defects, excepting normal wear and tear.
3.4 No Violation. The execution, delivery and performance of this
Agreement, the Conveyance Documents and the Related Documents by Seller will not
(whether with or without notice and/or the lapse of time) result in a breach or
violation of, or constitute a material default under, Corsair's or Subscriber's
Certificate of
*** Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
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Incorporation, Bylaws or any material agreement to which Seller is a party or
by which Seller is bound, and will not be in violation of any statute, judgment,
order, rule or regulation in effect at the Closing Date of any court or federal,
state or other regulatory authority or governmental body having jurisdiction
over Seller or the Assets to the extent that a violation of such statute,
judgment, order or regulation would have a material adverse effect on the value
of the Assets. Neither Corsair nor Subscriber is a party to, subject to or bound
by any agreement or judgment, order, writ, injunction or decree of any court or
federal, state or other regulatory or governmental body that prevents or impairs
the consummation of the transactions contemplated by this Agreement, the
Conveyance Documents or the Related Documents or the rights of the Buyer
hereunder and thereunder.
3.5 Governmental Authorities. Neither Corsair nor Subscriber is required
to submit any notice, report or other filing to any governmental or regulatory
authority, nor is any consent, approval or authorization of any governmental or
regulatory authority required to be obtained in connection with the consummation
of the transactions contemplated hereby.
3.6 Litigation. There are no actions, suits, proceedings, orders,
investigations, or claims pending or overtly threatened against or affecting any
of the Assets, Assumed Liabilities, or the consummation of the transactions
contemplated hereby, at law or in equity or before or by any federal, state,
municipal, or other governmental department, commission, board, agency, or
instrumentality, domestic or foreign. No governmental or regulatory authority,
agency or instrumentality has at any time challenged or questioned the legal
right of Seller to sell any products and services relating to the Assets. The
Disclosure Schedule contains a list and brief description of all claims,
actions, litigation, suits, proceedings or investigations relating to any of the
Assets, Assumed Liabilities, or the consummation of the transactions
contemplated hereby, which resulted in a judgment, settlement, compromise,
release, payment or award of any nature.
3.7 Contracts. A true copy of each Contract, including any amendments
related thereto that are legally binding, and all other agreements, instruments,
commitments, contracts or other obligations of any type to which Corsair or
Subscriber is a party or is bound relating in any way to the Assets, or to which
the Assets are subject (collectively, the "Relevant Contracts") has been
provided to Buyer's counsel prior to Closing and an accurate listing of same has
been set forth in the Disclosure Schedule. All Relevant Contracts are in full
force and effect and are valid, binding and enforceable in accordance with their
respective terms; all parties to such Relevant Contracts are in compliance with
the provisions thereof; no such party is in default under any of the terms
thereof and no event has occurred that (with the passage of time and/or the
giving of notice) would constitute a default by any party under any provision
thereof.
3.8 Compliance with Law. Seller is, in connection with the ownership and
use of the Assets and the Assumed Liabilities, in compliance with all applicable
foreign, federal, state or local laws, statutes, rules, regulations, ordinances,
codes, orders, licenses, franchises, permits, authorizations and concessions,
the failure with which to comply would have or would reasonably be expected to
have a material adverse effect on the value of the Assets or the Assumed
Liabilities.
3.9 Licenses, Permits and Authorizations. The Disclosure Schedule
contains a list of all approvals, authorizations, consents, licenses,
franchises, orders and other permits of, and filings with, any governmental
authority, whether foreign, federal, state or local, which are required in
connection with the ownership, handling, use, sale or possession of the Assets,
the noncompliance with which would have a material adverse effect on Buyer or
the Assets.
3.10 Intellectual Property and Software. All title and ownership in the
Intellectual Property and Software is, and upon the consummation of the
transactions contemplated by this Agreement and the Conveyance Documents will be
exclusively vested in Buyer free of any equities, claims, liens, encumbrances or
restrictions of whatever nature and Seller has not granted any license or right
thereto to others except in the ordinary course of business. Seller has not
sold, licensed or otherwise disposed of any right, title or interest to the
Software since June 21, 1998, except in the ordinary course of business. Except
for a customer or related escrow arrangement referenced in Schedule C, Seller
has not disclosed or otherwise transferred Software source code to any third
party. Further, Seller is not aware of any third party infringement of the
Intellectual Property.
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3.11 Employees. Seller is, with respect to the employees listed in
Schedule E (the "Employees"), in compliance in all material respects with all
applicable laws relating to the employment of labor including those related to
wages, hours, collective bargaining and discrimination. There are no collective
bargaining agreements applicable to any of the Employees. Except as set forth in
the Disclosure Schedule and in any offer of employment letter issued in the
ordinary course (which does not create any contractual liability to maintain
employment), none of the Employees has any written employment agreement with
Seller. Each of the Employees is subject to a confidentiality agreement with the
Seller.
3.12 Premise Subleased to Buyer. The lease of Seller (the "Seller's
Lease") for the premises subleased to Buyer (the "Buyer's Premises") pursuant to
the Sublease is in full force and effect, without any claim of default by the
landlord having been received by Seller hereunder. There is no existing material
violation of any occupancy permit or of the zoning laws, building codes or
health and safety laws in respect of Seller's improvements in the Buyer's
Premises. Seller has not given notice to the landlord of the Seller's Lease of
the exercise of any termination right under the Seller's Lease which would
result in the early termination of the Seller's Lease after the Closing Date.
3.13 Tax Matters. All taxes, including without limitation income,
property, sales, use, franchise, added value, imposed by the United States or by
any foreign country or by any state, municipality, subdivision or
instrumentality of the United States or of any foreign country, or by any other
taxing authority, which are due or payable by Seller in connection with the
transfer of the Assets or the Assumed Liabilities, and all interest and
penalties thereon, whether disputed or not, have been or will be paid in full;
all tax returns required to be filed in connection therewith have been or will
be accurately prepared and duly and timely filed or will be so filed after the
Closing Date if due thereafter; and all deposits required by law to be made by
Seller have been or will be duly made. Nothing in this Section shall be
construed as limiting Corsair's or Subscriber's right to dispute taxes levied
upon it.
3.14 Environmental and Safety Matters. Seller's operation of the Assets
has been in material compliance with, and Seller has complied in all material
respect with all, and are not in violation of any, applicable United States
federal, state and local laws, ordinances, regulations and orders relating to
environmental matters (collectively, "Environmental Laws"), including, but not
limited to, matters related to air pollution, water pollution, on-site or
off-site hazardous substance handling, discharge, disposal or recovery, toxic or
hazardous substances or materials, asbestos, PCBs, employee safety, and
transportation or shipping safety, and, no notice of violation of any such
statutes, laws, ordinances, regulations and orders with respect thereto have
been received by Seller, nor is any such notice threatened.
3.15 Disclosure; No Misstatements. Neither this Agreement, the
Conveyance Documents, nor to Corsair's knowledge any other document, certificate
or written statement referenced in this Agreement or the Conveyance Documents,
in connection herewith or therewith, contain any untrue statement of material
fact or omits to state a material fact necessary in order to make the statements
contained herein and therein not misleading as of the date hereof or thereof.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to the Seller as follows:
4.1 Organization; Authority. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the state of California,
and has all requisite power and authority to enter into this Agreement and
perform its obligations hereunder.
4.2 Authority Relative to Agreement. The execution, delivery and
performance of this Agreement, the Conveyance Documents and the Related
Agreements by Buyer and the consummation of the transactions contemplated hereby
and therein, have been duly and validly authorized and approved by all necessary
corporate action of Buyer. This Agreement, the Conveyance Documents and the
Related Agreements have been duly executed and delivered and constitute the
legal, valid and binding obligations of Buyer, each enforceable in
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accordance with their respective terms, except as limited by bankruptcy,
insolvency, or other laws of general application relating to the enforcement of
creditor's rights and equitable principles.
4.3 No Conflict with Other Instruments or Agreements. The execution,
delivery and performance of this Agreement, the Conveyance Documents or the
Related Agreements by Buyer will not result in a breach or violation of, or
constitute a default under, Buyer's Certificate of Incorporation, Bylaws or any
agreement to which Buyer is a party or by which Buyer is bound or to which any
of Buyer's property is subject and, to Buyer's knowledge, will not violate any
statute, judgment, order, rule or regulation in effect at the Closing Dated of
any court or federal, state or other regulatory authority or governmental body
having jurisdiction over Buyer. The Buyer is not a party to, subject to or bound
by any agreement or judgment, order, writ, injunction or decree of any court or
federal, state or other regulatory or governmental body that prevents or impairs
the consummation of the transactions contemplated by this Agreement, the
Conveyance Documents or the Related Documents or the rights of the Seller
hereunder and thereunder.
4.4 Governmental Authorities. The Buyer is not required to submit any
notice, report or other filing to any governmental or regulatory authority nor
is any consent, approval or authorization of any governmental or regulatory
authority required to be obtained in connection with the consummation of the
transactions contemplated hereby.
4.5 Disclosure; No Misstatements. Neither this Agreement nor to Buyer's
knowledge any other document, certificate or written statement referenced in
this Agreement, in connection herewith or therewith, contain any untrue
statement of material fact or omits to state a material fact necessary in order
to make the statements contained herein and therein not misleading as of the
date hereof or thereof.
4.6 Brokers and Finders. Buyer has not employed any broker or finder or
incurred any liability for any brokerage fees, commissions or finders' fees in
connection with the transactions contemplated hereby.
4.7 Buyer's Due Diligence. During Buyer's due diligence review of the
Assets, Buyer acquired no actual knowledge that Seller's representations are
materially untrue as of the date of this Agreement.
ARTICLE 5
COVENANTS OF SELLER
5.1 Conduct of Business. From the date hereof to the Closing, except as
expressly contemplated by this Agreement or otherwise consented to by Buyer in
writing, Seller shall:
(a) maintain in all material respects all of the Assets in good
repair, order and condition except for ordinary wear and tear and damage by
unavoidable casualty;
(b) keep in full force and effect insurance comparable in amount
and scope of coverage to insurance now carried by Seller or otherwise insuring
the Assets;
(c) perform in all material respects all obligations of Seller
under leases, agreements, contracts and instruments relating to or affecting the
Assets;
(d) maintain the books of account and records of Seller in the
usual, regular and ordinary manner;
(e) comply in all material respects with all statutes, laws,
ordinances, rules and regulations applicable the Assets;
(f) not enter any employment agreement or commitment with any
Employee or effect any increase in the compensation or benefits payable or to
become payable to any Employee;
(g) not create any encumbrance on the Assets; and
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(h) not commit itself to do any of the actions described in
clauses (a) through (g) above.
5.2 Access to Information. Between the date hereof and the Closing Date,
Seller will furnish Buyer and its representatives and advisers with such
financial, tax and operating data and other information with respect to the
Assets and the Assumed Liabilities as Buyer may from time to time reasonably
request.
5.3 Efforts to Consummate Transaction. Seller shall use reasonable best
efforts to take or cause to be taken all actions required to consummate the
transactions contemplated hereby.
5.4 Notification of Certain Matters. Seller shall promptly notify Buyer
from time to time prior to the Closing Date of any facts which make any of
Seller's representations or warranties made herein or in any Exhibit or Schedule
hereto materially false or misleading or that are necessary in order to make
such representations or warranties not materially false or misleading.
ARTICLE 6
COVENANTS OF BUYER
6.1 Actions and Consents. Buyer shall cooperate with Seller and provide
such assistance as Seller may reasonably request, in connection with Seller's
efforts to obtain all consents, approvals and authorizations of third parties
and to make all filings with and give all notices to third parties which may be
necessary or required in order to effectuate the transactions contemplated
hereby.
6.2 Continued Assistance. At all times from and after the Closing Date,
Buyer shall cooperate with Seller and provide such assistance as Seller may
reasonably request, at Seller's expense, in connection with the defense or
prosecution of any claims, actions, suits or investigations related to Seller's
conduct concerning the Assets prior to the Closing Date.
6.3 Notification of Certain Matters. Buyer shall promptly notify Seller
from time to time prior to the Closing Date of any facts which, to the knowledge
of Buyer, make any of Buyer's representations or warranties made herein
materially false or misleading or that are necessary in order to make such
representations or warranties not materially false or misleading.
6.4 Efforts to Consummate Transaction. Buyer shall use reasonable best
efforts to take or cause to be taken all actions required to consummate the
transactions contemplated hereby.
6.5 Assumed Liabilities. Pursuant to Section 1.4, Buyer shall assume,
satisfy and perform when due all Assumed Liabilities.
6.6 Offer of At-Will Employment. Buyer shall offer employment, on an
at-will basis to each of the Employees to commence on the day immediately
following the Closing Date. Buyer shall provide any Employees that accept its
offer of employment with substantially similar terms of employment as those
currently provided by Seller. Buyer agrees that for a period of at least three
(3) months following the Closing Date not to cause any of the Employees that
accept its offer of employment to be relocated outside of Irvine, California.
Buyer further agrees not to terminate any of the Employees who accept its offer
of employment, other than for cause, during the three (3) month period following
the Closing Date. Nothing contained in this Section 6.6 shall confer upon any
Employee the right to continue in the service of Buyer for any period of
specific duration or interfere with or otherwise restrict in any way the rights
of Buyer to terminate any such Employee's service at any time for any reason,
with or without cause.
6.7 Physical Assets. From the Closing Date through the end of the
Adjustment Period, except as consented to by Seller in writing, Buyer shall (a)
maintain in all material respects all of the Physical Assets in its position in
good repair, order and condition, except for ordinary wear and tear; (b) obtain
and keep in full force and
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effect casualty insurance for the Physical Assets in its possession; and (c) not
create any lien or encumbrance on the Physical Assets except for liens or
encumbrances granted to Avery.
ARTICLE 7
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER
The obligations of Buyer under this Agreement to be performed on or
before the Closing Date are subject to the satisfaction of the following
conditions precedent, except to the extent that Buyer shall have waived such
satisfaction in writing:
7.1 Representations, Warranties and Covenants. The representations and
warranties of Seller contained in this Agreement shall be true and correct on
and as of the Closing Date with the same force and effect as though made on and
as of the Closing Date. Seller shall have performed and complied with all
covenants and agreements required by this Agreement to be performed or complied
with by Seller on or prior to the Closing Date.
7.2 No Injunction. No injunction or restraining order shall be in effect
which forbids or enjoins the consummation of the transactions contemplated by
this Agreement and no federal, state, local or foreign statute, rule or
regulation shall have been enacted which prohibits, restricts or delays the
consummation hereof. No litigation or governmental investigation or proceeding
seeking to enjoin or challenging, or seeking damages or relief in connection
with, the transactions contemplated by this Agreement shall be pending, which in
Buyer's reasonable judgment (with advice of counsel), makes it inadvisable to
proceed with the transactions contemplated by this Agreement.
7.3 Performance. Seller shall have performed and complied with all
agreements, covenants and conditions required by this Agreement to be performed
and complied with by Seller on or before the Closing Date. Buyer shall have
received a certificate from the Secretary of Corsair (the "Corsair Certificate")
and the Secretary of Subscriber (the "Subscriber Certificate") dated as of the
Closing Date and certifying to the fulfillment of the foregoing conditions in a
form reasonably acceptable to Buyer and its counsel.
7.4 Approval. This Agreement and the Related Documents and the
transactions contemplated hereby and thereby shall have been approved by
Subscriber's Board of Directors, Corsair's Board of Directors (where
appropriate), and by Buyer's Board of Directors.
7.5 Governmental Approvals. As of the Closing, all authorizations,
approvals or permits of or filings with any governmental authority that were
required by law prior to and in connection with the transfer of the Assets or
the transactions contemplated by this Agreement or the Related Documents shall
have been duly obtained or made and shall be effective as of the Closing.
ARTICLE 8
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLer
The obligations of Seller under this Agreement to be performed on or
before the Closing Date are subject to the satisfaction of each of the following
conditions precedent, except to the extent that Seller shall have waived in
writing such satisfaction.
8.1 Representations, Warranties and Covenants. The representations and
warranties of Buyer contained in this Agreement shall be true and correct on and
as of the Closing Date with the same force and effect as though made on and as
of the Closing Date. Buyer shall have performed and complied with all covenants
and agreements required by this Agreement to be performed or complied with by
Buyer on or prior to the Closing Date.
8.2 No Injunction. No injunction or restraining order shall be in effect
which forbids or enjoins the consummation of the transactions contemplated by
this Agreement and no federal, state, local or foreign statute, rule
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or regulation shall have been enacted which prohibits, restricts or delays the
consummation hereof. No litigation or governmental investigation or proceeding
seeking to enjoin or challenging, or seeking damages or relief in connection
with, the transactions contemplated by this Agreement shall be pending, which in
Seller's or Corsair's reasonable judgment (with advice of counsel), makes it
inadvisable to proceed with the transactions contemplated by this Agreement.
8.3 Performance. Buyer shall have performed and complied with all
agreements, covenants and conditions required by this Agreement to be performed
and complied with by Buyer on or before the Closing Date. Seller shall have
received a certificate of the Secretary of Buyer (the "Buyer Certificate") dated
as of the Closing Date and certifying to the fulfillment of the foregoing, in a
form reasonably acceptable to the Seller.
8.4 Approval. This Agreement and the Related Documents and the
transactions contemplated hereby and thereby shall have been approved by
Seller's Board of Directors, Corsair's Board of Directors and Buyer's Board of
Directors.
8.5 Governmental Approvals. As of the Closing, all authorizations,
approvals or permits of or filings with any governmental authority that were
required by law prior to and in connection with the transfer of the Assets or
the transactions contemplated by this Agreement or the Related Documents shall
have been duly obtained or made and shall be effective as of the Closing.
ARTICLE 9
INDEMNITY; LIMITATION OF LIABILITY
9.1 Grant of Indemnity.
(a) Indemnification by Subscriber and Corsair. As an inducement to Buyer
to enter into this Agreement, the Conveyance Documents and the Related
Documents, and acknowledging that Buyer is relying on the indemnification
provided in this Section 9.1(a) in entering into this Agreement, the Conveyance
Documents and the Related Documents, Subscriber and Corsair agree, jointly and
severally, to indemnify, defend and hold harmless Buyer and its affiliates,
parent corporation and subsidiaries, and their respective employees, officers,
directors, representatives, agents, successors and assigns (collectively, "Buyer
Affiliates"), from and against any claims, losses, liability, obligations,
lawsuits, judgments, settlements, governmental investigations, deficiencies,
damages, costs or expenses of whatever nature, whether known or unknown,
accrued, absolute, contingent or otherwise including, without limitation,
interest, penalties, attorneys' fees, costs of investigation and all amounts
paid in defense or settlement of the foregoing, reduced by and to the extent of
any insurance proceeds received with respect to any of the foregoing
(collectively "Claims and Losses"), suffered or incurred by Buyer or Buyer
Affiliates in connection with or relating to (i) a breach of any obligation,
representation, warranty, covenant or agreement of Subscriber or Corsair in this
Agreement, the Conveyance Documents or any Related Document, (ii) any item set
forth in the Disclosure Schedule in respect of the representation and warranty
contained in Section 3.6 and Claims or Losses arising as a result of Seller's
termination of any Contract effective on or before the Closing Date, (iii) costs
and expenses (including reasonable attorneys' fees) incurred by Buyer in
connection with any action, suit, proceeding, demand, assessment or judgment
incident to the foregoing (collectively, "Buyer's Damages").
(b) Indemnification by Buyer. As an inducement to Seller to enter into
this Agreement, the Conveyance Documents and the Related Documents, and
acknowledging that Seller is relying on the indemnification provided in this
Section 9.1(b) in entering into this Agreement, the Conveyance Documents and the
Related Documents, Buyer agrees to indemnify, defend and hold harmless Seller,
and their respective affiliates, agents, successors and assigns (collectively,
"Seller Affiliates"), from and against any Claims and Losses, except for matters
which are the subject of indemnification pursuant to Section 9.1(a), or except
as a result of the expiration of Seller's representations and warranties
hereunder would have been matters subject to indemnification pursuant to Section
9.1(a), suffered or incurred by Seller or Seller Affiliates as a result of or in
connection with or relating to (i) the Assumed Liabilities; (ii) the Contracts,
(iii) a breach of any obligation, representation, warranty, covenant or
agreement of Buyer in this Agreement, the Conveyance Documents or any Related
Document and (iv) costs and
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expenses (including reasonable attorneys' fees) incurred by Seller or Corsair in
connection with any action, suit, proceeding, demand, assessment or judgment
incident to any of the foregoing (collectively, "Seller's Damages").
9.2 Representation, Cooperation and Settlement.
(a) Each party agrees to give prompt notice to the other of any claim
against the other which might give rise to a claim based on the indemnity
contained in Sections 9.1(a) and 9.1(b), stating the nature and basis of the
claim and the amount thereof.
(b) In the event any claims, action, suit or proceeding is brought
against a party (the "Indemnified Party") with respect to which the other party
(the "Indemnifying Party") may have liability under the indemnity contained in
Sections 9.1(a) and 9.1(b) hereof, the Indemnified Party shall permit the
Indemnifying Party to assume the defense of any such claim or any litigation
resulting from such claim. Failure by the Indemnifying Party to notify the
Indemnified Party of its election to defend any such claim or action by a third
party within thirty (30) days after notice thereof shall have been given by the
Indemnified Party, shall be deemed a waiver of any such election. If the
Indemnifying Party assumes the defense of such claim or litigation resulting
therefrom, the obligations of the Indemnifying Party hereunder as to such claim
shall include taking all steps reasonably necessary in the defense or settlement
of such claim or litigation resulting therefrom, including the retention of
competent counsel satisfactory to the Indemnified Party, and holding the
Indemnified Party harmless from and against any and all damage resulting from,
arising out of, or incurred with respect to any settlement approved by the
Indemnifying Party or any judgment in connection with such claim or litigation
resulting therefrom. The Indemnifying Party shall not, in the defense of such
claim or litigation, consent to the entry of any judgment (other than a judgment
of dismissal on the merits without costs) except with the written consent of the
Indemnified Party nor enter into any settlement (except with the written consent
of the Indemnified Party) which does not include as an unconditional term
thereof the giving by the claimant or the plaintiff to the Indemnified Party a
release from all liability in respect to such claim or litigation.
(c) If the Indemnifying Party shall not assume the defense of any such
claim by a third party or litigation resulting therefrom, the Indemnified Party
may defend against such claim or litigation in such manner as it deems
appropriate. The Indemnifying Party shall, in accordance with the provisions
hereof, promptly reimburse the Indemnified Party for the amount of any
settlement reasonably entered into by the Indemnified Party and for all damage
incurred by the Indemnified Party in connection with the defense against or
settlement of such claim or litigation.
9.3 Interest. In the case of payments to third parties (including
federal, state, local or other tax authorities) which are indemnifiable
hereunder, the amount of the indemnifying party's liability under this Article 9
with respect thereto shall include interest on the amount of such payment from
the effective date of the indemnified party's notice of such payment to the
indemnifying party or the date on which such payment is made (whichever is
later) through the date on which the indemnified party shall have been
indemnified therefor, at a simple rate of interest equal to eight percent (8%)
per annum; provided, in no event shall such rate exceed the maximum rate
permitted by law.
9.4 Survival of Representations and Warranties. The representations,
warranties and covenants of Corsair and Subscriber contained in or made pursuant
to this Agreement or any certificate, document or instrument delivered pursuant
to or in connection with this Agreement and the transactions contemplated hereby
shall survive the execution and delivery of this Agreement and the Closing
hereunder and thereafter shall continue to survive in full force and effect for
a period of nine (9) months after the Closing Date. The representations,
warranties and covenants of Buyer contained in or made pursuant to this
Agreement or any certificate, document or instrument delivered pursuant to or in
connection with this Agreement and the transactions contemplated hereby shall
survive the execution and delivery of this Agreement for a period of nine (9)
months after the Closing Date; provided, however, that notwithstanding the
foregoing, buyers covenant under Section 6.5 hereof shall survive the execution
and delivery of this Agreement for a period of four (4) years after the Closing
Date. Notwithstanding any provision herein to the contrary, the representations,
warranties, and covenants of Seller and Buyer shall survive the Closing Date if
any of the same were based upon or included any material willful
misrepresentation or fraud. Neither party hereto shall be obligated to indemnify
the other pursuant to this Article 9 with respect to any claim, except to the
extent notified of such claim prior to the expiration of its representations,
warranties and covenants.
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9.5 Limitation of Liability THE EXPRESS WARRANTIES CONTAINED IN THIS
AGREEMENT ARE THE ONLY WARRANTIES MADE BY SELLER WITH RESPECT TO THE ASSETS AND
THE ASSUMED LIABILITIES BEING ACQUIRED BY BUYER PURSUANT TO THIS AGREEMENT.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, SELLER MAKES AND BUYER RECEIVES
NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND ALL WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED.
EXCEPT IN THE CASE OF SETTLEMENTS OR JUDGMENTS ARISING OUT OF THIRD PARTY
CUSTOMER CONTRACT CLAIMS INDEMNIFIED BY SUBSCRIBER AND CORSAIR UNDER THE
PROVISIONS OF SECTION 9.1(a), IN NO EVENT WILL SELLER BE LIABLE TO BUYER FOR ANY
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING WITHOUT
LIMITATION, ANY DAMAGES ARISING FROM THE LOSS OF BUSINESS, DATA, PROFITS OR
GOODWILL) INCURRED OR SUFFERED BY BUYER WITH RESPECT TO THE PERFORMANCE OF THIS
AGREEMENT OR THE USE, OPERATION, DEFECT OR FAILURE OF THE ASSETS, OR FOR ANY
OTHER REASON, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES.
ARTICLE 10
CLOSING
10.1 Closing. The closing (the "Closing") shall be consummated at the
offices of Arter & Hadden LLP, Five Park Plaza, Suite 1000, Irvine, California,
at 10 a.m. (Pacific Time) on February 3, 1999. The date of such Closing is
herein referred to as the "Closing Date." At the Closing, the parties to this
Agreement will exchange funds, documents, agreements, certificates, and other
instruments and documents so as to cause the terms and conditions of this
Agreement to be satisfied. All documents and instruments delivered at Closing
pursuant to this Article 8 shall be dated and shall be effective for all
purposes as of the Closing Date.
10.2 Buyer Deliveries. At the Closing, Buyer shall have delivered, or
caused to be delivered, to Seller the following documents: (a) the Conveyance
Documents; (b) any and all Related Documents; (c) the Sublease; (d) the
Cross-Services Agreement; (e) the Buyer Certificate; and (f) such other
documents of transfer, conveyance and assignment in form effective to transfer
all of the Assets to the Buyer.
10.3 Seller Deliveries. At the Closing, Seller shall have delivered, or
caused to be delivered, to Buyer the following documents: (a) the Conveyance
Documents; (b) any and all Related Documents; (c) the Sublease; (d) the
Cross-Services Agreement; (e) the Corsair Certificate; (f) the Subscriber
Certificate; and (g) such other documents of transfer, conveyance and assignment
in form effective to transfer all of the Assets to the Buyer.
ARTICLE 11
AVERY GUARANTEE
11.1 Guaranty. Avery hereby unconditionally and irrevocably guarantees
to the Seller the payment and performance by Buyer of all of its obligations and
duties as set forth in this Agreement and the Related Agreements, including
without limitation it obligations under the Sublease, the Note and the Security
Agreement, and its obligation to indemnify Seller in accordance with the
provisions of Article 9 of this Agreement. Avery acknowledges and agrees that,
with respect to all obligations to pay money, such guaranty shall be a guaranty
of payment and not of collection. Avery agrees that Corsair shall be entitled to
enforce all of the terms of this Agreement against Avery as if Avery were the
Buyer defined hereunder, and that Corsair, in its sole discretion, may proceed
directly against Avery to exercise any right or remedy that it may have under
this Agreement against Buyer, without pursuing or exhausting its rights or
remedies against Buyer. Avery hereby waives any right, whether legal or
equitable, statutory or non-statutory, to require Seller to proceed against or
take any action against or pursue any remedy with respect to Buyer or any other
person or make presentment or demand for performance or give any notice of
nonperformance before Seller may enforce rights against Avery hereunder and, to
the fullest extent permitted by law, any other defenses or benefits that may be
derived from or afforded by applicable law limiting the liability of or
exonerating guarantors or sureties, or which may conflict with the terms of this
Section 11.1. The unconditional obligation of Avery hereunder will not be
affected, impaired or released by any extension, waiver, amendment or thing
whatsoever which would release a guarantor or surety (other than performance).
Avery further
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represents and agrees that this Section 11.1 is both a present and continuing
guaranty and that this guaranty shall be binding upon Avery and its successors
and assigns and shall inure to and shall be enforceable by Seller and its
successors, transferees and assigns.
ARTICLE 12
MISCELLANEOUS PROVISIONS
12.1 Termination.
(a) Anything herein to the contrary notwithstanding, this
Agreement may be terminated at any time prior to the Closing Date:
(i) by mutual written consent of Seller and Buyer; or
(ii) by Seller or Buyer if for any reason the Closing
shall not have occurred on or before February 3, 1999.
(b) If any party terminates this Agreement pursuant to this
Section 12.1, all obligations of the parties hereto shall terminate without
further liability of any party to any other except for (i) any liability of any
party for the breach of this Agreement as of the date of such termination or
(ii) any liability of any party for the breach of the confidentiality provisions
of Section 12.2 below.
12.2 Confidentiality. In connection with the negotiation of this
Agreement and the preparation for the consummation of the transactions
contemplated hereby, each party will have access to confidential information
relating to the other party or parties. Each party shall treat such information
as confidential, preserve the confidentiality thereof and not duplicate or use
such information, except in connection with the transactions contemplated
hereby, and in the event of the termination of this Agreement for any reason
whatsoever, each party shall return to the other party or parties all documents,
work papers and other material (including all copies thereof) obtained in
connection with the transactions contemplated hereby and will use all reasonable
efforts, including instructing his or its employees who have had access to such
information, to keep confidential and not to use any such information, unless
such information is now, or is hereafter, disclosed through no act or omission
of such party, in any manner making it available to the general public. Each
party shall use all reasonable steps to safeguard such information.
12.3 Publicity. No press release or other public announcement concerning
this Agreement or the transactions contemplated hereby shall be made without
advance approval thereof by Seller and Buyer, which consent will not be
unreasonably withheld, except as required by law.
12.4 Further Assurances. From time to time after the Closing, Seller
will execute and deliver, or cause its affiliates to execute and deliver, to
Buyer such instruments of sale, transfer, conveyance, assignment and delivery,
and such consents, assurances, powers of attorney and other instruments as may
be reasonably requested by Buyer or its counsel in order to vest in Buyer all
right, title and interest of Seller in and to the Assets, and otherwise in order
to carry out the purpose and intent of this Agreement.
12.5 Successors and Assigns. This Agreement may not be assigned by a
party without the prior written consent of the parties hereto, which consent
shall not be unreasonably withheld or delayed. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors, assigns, heirs, legatees,
executors and administrators of the parties.
12.6 Governing Law; Jurisdiction and Venue; Severability. This Agreement
shall be governed by and construed in accordance with the laws of the State of
California, without regard to principles of conflicts of law. Except for the
arbitration provisions of Section 2.2, the parties agree that any dispute
regarding the interpretation or validity of this Agreement shall be subject to
the exclusive jurisdiction of the state and federal courts in and for
Irvine/Orange County, California, and each party hereby agrees to submit to the
personal and exclusive jurisdiction
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and venue of such courts. If any term, covenant or condition of this Agreement
is held to be to any extent invalid, void, or otherwise unenforceable by any
court or arbitrator, the remainder of this Agreement shall not be affected
thereby and each term, covenant and condition of this Agreement shall be valid
and enforceable to the fullest extent permitted by law.
12.7 Entire Agreement; Modification and Waiver. This Agreement, the
Conveyance Documents and the Related Agreements together with the Exhibits and
Schedules referred to herein and therein, constitute the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersede all prior and contemporaneous agreements and understandings. All
Exhibits and Schedules attached hereto are incorporated herein by this
reference. This Agreement may be modified, amended or supplemented only by a
written instrument duly executed by all parties hereto. No covenant, term or
condition or the breach thereof shall be deemed waived, unless it is waived in
writing and signed by the party against whom the waiver is claimed. Any waiver
of breach of any covenant, term or condition shall not be deemed to be a waiver
of any preceding or succeeding breach of the same or any other covenant, term or
condition. The failure of any party to insist upon strict performance of any
covenant, term or condition hereunder shall not constitute a waiver of such
party's right to demand strict compliance therewith in the future.
12.8 Notices. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally against written receipt or by facsimile transmission with answer back
confirmation or mailed (postage prepaid by certified or registered mail, return
receipt requested) or by overnight courier to the parties at the following
addresses or facsimile numbers:
If to Seller Corsair Communications, Inc.
and/or Corsair: 3408 Hillview Avenue
Palo Alto, California 94304
Fax: (650) 493-1426
Attention: Chief Financial
Officer
With copies to: Brobeck, Phleger & Harrison LLP
550 West C Street, Suite 1300
San Diego, CA 92101
Facsimile: (619) 234-3848
Attention: John Denniston, Esq.
If to Buyer: Wireless Billing Systems
1500 Quail Street, Suite 700
Newport Beach, CA 92660
Fax:______________________________
Attention: President
With copies to: Arter & Hadden LLP
Five Park Plaza, Suite 1000
Irvine, CA 92614-8528
Fax: (949) 833-9604
Attention: Stephen H. LaCount, Esq.
If to Avery: Avery Communications, Inc.
190 South LaSalle Street, Suite 1700
Chicago, IL 60603
Fax:(312) 419-0172
Attention: President
With copies to: Winstead Sechrest & Minick P.C.
5400 Renaissance Tower
1201 Elm Street
Dallas, TX 75270-2199
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Fax: (214) 745-5390
Attention: Bruce A. Cheatham, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 12.8, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section 12.8, be deemed given upon receipt, and (iii) if
delivered by mail in the manner described above to the address as provided in
this Section 12.8, be deemed given five (5) days after deposit in the United
States mail (in each case regardless of whether such notice, request or other
communication is received by any other party to whom a copy of such notice,
request or other communication is to be delivered pursuant to this Section). Any
party from time to time may change his or its address, facsimile number or other
information for the purpose of notices to that party by giving notice specifying
such change to the other parties hereto.
12.9 Payment of Fees and Expenses. Each party to this Agreement shall be
responsible for, and shall pay, all of its own legal, accounting and other
transactional fees and expenses incurred in the negotiation and preparation of
this Agreement, the Conveyance Documents and the Related Documents and the
transactions contemplated herein and therein. Without limiting the generality of
the foregoing, Seller shall pay all applicable sales, use, transfer and
documentary taxes arising out of the purchase and sale of the Assets. The
parties agree to cooperate to minimize the taxes arising from the transactions
contemplated by this Agreement.
12.10 Non-Solicitation. For a period of eighteen (18) months after the
Closing Date, neither Buyer nor Seller shall, without first obtaining the
written consent of the other party, solicit or offer employment to any employee
or consultant of the other party, except that Buyer may hire the Employees
pursuant to the terms of this Agreement.
12.11 Drafting Party. The provisions of this Agreement, and the
documents and instruments referred to herein, have been examined, negotiated,
drafted and revised by counsel for each party hereto and no implication shall be
drawn nor made against any party hereto by virtue of the drafting of this
Agreement.
12.12 Counterparts. This Agreement may be executed in multiple copies,
each of which shall be deemed an original and all of which shall constitute a
single agreement binding on all parties.
[Remainder of Page Intentionally Left Blank]
- 15 -
<PAGE> 16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
BUYER: WIRELESS BILLING SYSTEMS,
a California corporation
By: /s/ John Faltus
-------------------------------------
John Faltus, President
SUBSCRIBER: SUBSCRIBER COMPUTING, INC.,
a Delaware corporation
By: /s/ John F. Scott
-------------------------------------
John F. Scott, Vice President
CORSAIR: CORSAIR COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ John F. Scott
-------------------------------------
Vice President, Strategy and Business
Development
AVERY: AVERY COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ Scot M. McCormick
-------------------------------------
Scot M. McCormick, Vice President
[SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT]
<PAGE> 17
Schedule A - List of Software
Schedule B - List of Intellectual Property
Schedule C - Corsair and Subscriber Agreements
Schedule D - Physical Assets
Schedule E - Employee List
Schedule F - Restricted Contracts
Schedule G - Balance Sheet dated November 30, 1998
Schedule H - Corsair and Subscriber Disclosure Schedule
Exhibit A - Bill of Sale
Exhibit B - Assignment and Assumption Agreement
Exhibit C - Assignment of Patents
Exhibit D - Trademark Assignment-Fraudwatch
Exhibit E - Copyright Assignment
Exhibit F - Sublease
Exhibit G - Cross-Services Agreement
Exhibit H - Secured Promissory Note
Exhibit I - Security Agreement
The Corporation agrees to furnish supplementally a copy of any omitted schedule
or exhibit to the Commission upon request.
<PAGE> 18
SCHEDULE A
LIST OF SOFTWARE
Name of Program Operating System(s)
1. CRM Billing System DOS and UNIX
2 BudgetWatch DOS
3. CreditWatch DOS
4. FraudWatch (not including FraudWatch PRO) DOS
5. Prepay System DOS
6. Rapid Rent DOS
