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EXHIBIT 2.1
EXECUTION COPY
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ASSETS CONTRIBUTION AGREEMENT
between
RSA SECURITY BUSINESS TRUST
and
CROSBY FINANCE, LLC
Dated as of November 27, 2000
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TABLE OF CONTENTS
PAGE
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ARTICLE I
Certain Definitions
SECTION 1.1 Definitions......................................................1
SECTION 1.2 Other Definitional Provisions....................................1
ARTICLE II
Conveyance of Assets
SECTION 2.1 Conveyance of Assets.............................................2
SECTION 2.2 Intention of the Parties.........................................2
SECTION 2.3 The Closing......................................................2
SECTION 2.4 Capital Contribution.............................................2
SECTION 2.5 Payment of Expenses by Defaulting Party..........................2
ARTICLE III
Representations and Warranties
SECTION 3.1 Representations and Warranties of the Company....................3
SECTION 3.2 Representations and Warranties of RSA............................3
SECTION 3.3 Effectiveness and Survival of Representations and Warranties.....4
ARTICLE IV
Miscellaneous Provisions
SECTION 4.1 Amendment........................................................5
SECTION 4.2 Waivers..........................................................5
SECTION 4.3 Notices..........................................................5
SECTION 4.4 Headings and Cross-References....................................5
SECTION 4.5 Governing Law....................................................5
SECTION 4.6 Counterparts.....................................................5
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This ASSETS CONTRIBUTION AGREEMENT (as amended or supplemented from time to
time, this "Agreement"), dated as of November 27, 2000, between RSA SECURITY
BUSINESS TRUST, a Massachusetts business trust ("RSA"), and CROSBY FINANCE, LLC,
a Delaware limited liability company (the "Company").
RECITALS
WHEREAS, the parties hereto intend that RSA will transfer the Assets to the
Company on the date hereof, pursuant to the terms hereof, and
WHEREAS, the parties hereto intend that the Company will issue Class A
Certificates and Class B Certificates evidencing interests in the Company; and
WHEREAS, the parties hereto wish to set forth herein certain
representations, warranties and covenants of RSA with respect to the Securities
for the benefit of the Company and the Certificateholders.
NOW, THEREFORE, in consideration of the foregoing, other good and valuable
consideration and the mutual terms and covenants contained herein the parties
hereto agree as follows:
ARTICLE I
Certain Definitions
SECTION 1.1 DEFINITIONS. Capitalized terms used herein and not otherwise
defined herein are defined in Schedule A to the Limited Liability Company
Agreement, dated as of November 27, 2000, and executed by RSA as managing member
(the "LLC Agreement").
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS. (a) All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein.
(b) The words "hereof', "herein", "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section, Schedule and Exhibit
references contained in this Agreement are references to Sections, Schedules and
Exhibits in or to this Agreement unless otherwise specified; and the terms
"including" shall mean "including, without limitation,".
(c) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
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ARTICLE II
Conveyance of Assets
SECTION 2.1 CONVEYANCE OF ASSETS. In consideration of the Company's
delivery to RSA of the Class A Certificates, RSA hereby assigns, contributes and
transfers to the Company, without recourse, all of its right, title and interest
in, to and under the following:
(a) the Securities and all payments in respect thereof on or after the
Closing Date;
(b) the VDF Contract, including, without limitation, the right to receive
all payments in respect thereof on or after the Closing Date, other than the
initial payment in respect thereof; PROVIDED, however, that the assignment,
contribution and transfer pursuant to this Section 2.1(b) shall be conditioned
upon the execution of, and shall be subject to the terms of, the Novation
Agreement;
(c) the Forward Sales Contracts, including, without limitation, the right
to receive all payments in respect thereof on or after the Closing Date;
PROVIDED, HOWEVER, that the assignment, contribution and transfer pursuant to
this Section 2.1(c) shall be conditioned upon the execution of, and shall be
subject to the terms of, the Novation Agreement;
(d) the proceeds of any and all of the foregoing (collectively, the
"Assets").
SECTION 2.2 INTENTION OF THE PARTIES. The parties to this Agreement intend
that the transactions contemplated hereby shall be, and shall be treated as, a
contribution by RSA to the Company of the Assets and not as a lending
transaction.
If (but only to the extent that) the transfer of the Assets hereunder is
characterized by a court or other governmental authority as a loan rather than a
contribution, RSA shall be deemed hereunder to have granted to the Company a
first priority security interest in all of RSA's right, title and interest in
and to the Assets. Such security interest shall secure all of RSA's obligations
(monetary or otherwise) under this Agreement and the other Transaction Documents
to which it is a party, whether now or hereafter existing or arising, due or to
become due, direct or indirect, absolute or contingent, and this Agreement shall
constitute a security agreement under applicable law.
SECTION 2.3 THE CLOSING. The contribution of the Assets shall take place at
a closing at the offices of Brown & Wood LLP, One World Trade Center, New York,
New York 10048, that is in conjunction with, and conditioned upon, the
simultaneous closings under (a) the LLC Agreement, (b) the Administration
Agreement, (c) the VDF Contract, (d) the Forward Sales Contracts and (e) the
Novation Agreement.
SECTION 2.4 CAPITAL CONTRIBUTION. RSA, as Managing Member of the Company
and Holder of the Class A Certificates, is contributing and transferring the
Assets to the Company as a contribution to capital.
SECTION 2.5 PAYMENT OF EXPENSES BY DEFAULTING PARTY. Any party who breaches
any provision of this Agreement or defaults on its obligations under this
Agreement (the "Defaulting Party") shall, on demand, indemnify and hold harmless
the other party (the "Non-Defaulting
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Party") for and against all reasonable out-of-pocket expenses, including legal
fees and costs of collection, incurred by such Non-Defaulting Party by reason of
the enforcement and protection of such Non-Defaulting Party's rights under this
Agreement.
ARTICLE III
Representations and Warranties
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to RSA as of the date hereof:
(a) ORGANIZATION AND GOOD STANDING. The Company has been duly organized
and is validly existing as a limited liability company, and is in good standing,
under the laws of the State of Delaware, with the power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is currently conducted.
(b) POWER AND AUTHORITY. The Company has the power and authority to
execute and deliver this Agreement and to carry out its terms; and the
execution, delivery and performance of this Agreement have been duly authorized
by the Company by all necessary action.
(c) BINDING OBLIGATION. This Agreement has been duly executed and
delivered by the Company and constitutes a legal, valid and binding obligation
of the Company enforceable against the Company in accordance with its terms.
(d) NO VIOLATION. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not conflict with, and
will not result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
certificate of formation of the Company or the LLC Agreement, or any indenture,
agreement or other instrument to which the Company is a party or by which it is
bound; will not result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument (other than the LLC Agreement); and do not violate any law, or, to
the best of the Company's knowledge, any order, rule or regulation, applicable
to the Company of any court or of any Federal or State regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Company or its properties.
(e) NO PROCEEDINGS. There are no proceedings or investigations pending,
or, to the Company's best knowledge, threatened, before any court, regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Company or its properties: (i) asserting the invalidity of
this Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (iii) seeking any determination
or ruling that could reasonably be expected to materially and adversely affect
the performance by the Company of its obligations under, or the validity or
enforceability of, this Agreement.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF RSA. RSA hereby represents
and warrants to the Company as of the date hereof:
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(i) ORGANIZATION AND GOOD STANDING. RSA has been duly organized and
is validly existing as a business trust, and is in good standing, under the
laws of the Commonwealth of Massachusetts, with the power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted.
(ii) POWER AND AUTHORITY. RSA has the power and authority to execute
and deliver this Agreement and to carry out its terms; and the execution,
delivery and performance of this Agreement have been duly authorized by RSA
by all necessary action.
(iii) BINDING OBLIGATION. This Agreement has been executed and
delivered by RSA and constitutes a legal, valid and binding obligation of
RSA enforceable against RSA in accordance with its terms.
(iv) NO VIOLATION. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not conflict
with, and will not result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default
under, the organizational documents of RSA, or any indenture, agreement or
other instrument to which RSA is a party or by which it is bound; will not
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than this Agreement); and do not violate any law, or, to the best of
RSA's knowledge, any order, rule or regulation, applicable to RSA of any
court or of any Federal or State regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over RSA or its
properties.
(v) NO PROCEEDINGS. There are no proceedings or investigations
pending, or, to RSA's best knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over RSA or its properties: (A)
asserting the invalidity of this Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement, or
(C) seeking any determination or ruling that could reasonably be expected
to materially and adversely affect the performance by RSA of its
obligations under, or the validity or enforceability of, this Agreement.
(vi) TITLE TO SECURITIES. Immediately prior to the transfer
contemplated herein, RSA had good title to the Securities free and clear of
all liens, encumbrances, security interests and rights of others (other
than any such liens, encumbrances, security interests or rights of other
pursuant to the VDF Contract or a Forward Sales Contract), and, immediately
upon the transfer thereof, the Company shall have good and marketable title
to the Securities, free and clear of all liens, encumbrances, security
interests and rights of others created by RSA (other than any such liens,
encumbrances, security interests or rights of other pursuant to the VDF
Contract or a Forward Sales Contract).
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(vii) ACTIONS WITH RESPECT TO TRANSFER OF ASSETS. RSA has taken all
necessary or appropriate actions to be taken with third parties to effect
the transfer of the Assets to the Company.
SECTION 3.3 EFFECTIVENESS AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties set forth in Sections 3.1 and 3.2 speak as of
the execution and delivery of this Agreement, but shall survive the contribution
of the Assets to the Company.
ARTICLE IV
Miscellaneous Provisions
SECTION 4.1 AMENDMENT. This Agreement may be amended from time to time only
by a written amendment duly executed and delivered by RSA and the Company.
SECTION 4.2 WAIVERS. No failure or delay on the part of the Company in
exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
SECTION 4.3 NOTICES. All demands, notices and communications under this
Agreement shall be in writing, personally delivered or mailed by certified mail,
return receipt requested, and shall be deemed to have been duly given upon
receipt: (a) in the case of RSA, to RSA Security Business Trust, 36 Crosby
Drive, Bedford, Massachusetts 01730, Attention: General Counsel (telephone (781)
301-5000), with a copy to Hale and Dorr LLP, 60 State Street, Boston,
Massachusetts 02109 Attention: Hal J. Leibowitz (telephone (617) 526-6461); (b)
in the case of the Company to Crosby Finance, LLC, c/o Wilmington Trust Company,
Rodney Square North, 1100 North market Street, Wilmington, Delaware 19890-0001,
Attn: Corporate Trust Administration (telephone (302) 651-1000); or, as to each
of the foregoing, at such other address as shall be designated by written notice
to the other party.
SECTION 4.4 HEADINGS AND CROSS-REFERENCES. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to Section names or numbers are to such Sections of this Agreement unless
otherwise expressly indicated.
SECTION 4.5 GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder or
thereunder shall be determined in accordance with such laws.
SECTION 4.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers duly authorized as of the date and year
first above written.
RSA SECURITY BUSINESS TRUST
By: /s/ John F. Kennedy
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John F. Kennedy,
not in his individual capacity, but
solely as trustee
CROSBY FINANCE, LLC
By: RSA SECURITY BUSINESS TRUST,
as the Managing Member
By: /s/ John F. Kennedy
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John F. Kennedy,
not in his individual capacity, but
solely as trustee
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