AMENDED ASSET PURCHASE AGREEMENT
dated as of September 22, 1999,
by and between
XEROX CORPORATION and
TEKTRONIX, INC.
with respect to the assets of
its Color Printing and Imaging Products Division
TABLE OF CONTENTS
ARTICLE 1
SALE OF ASSETS AND CLOSING.............................................. 2 1.1 Assets...................................................... 2 1.2 Liabilities................................................. 7
1.3 Sale of United States Purchased Assets and Non-United States
Purchased Assets Owned by Selling Affiliates and Assumption
of Assumed Liabilities by the Purchasing Affiliates......... 12
1.4 Purchase Price; Allocation; Adjustment...................... 18
1.5 Closing..................................................... 23
1.6 Prorations.................................................. 25
1.7 Further Assurances; Post-Closing Cooperation................ 25
1.8 Third-Party Consents........................................ 26
1.9 Insurance Proceeds.......................................... 27
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER................................ 27
2.1 Organization of Seller and the Selling Affiliates........... 27
2.2 Authority................................................... 28
2.3 No Conflicts................................................ 28
2.4 Governmental Approvals and Filings.......................... 29
2.5 Books and Records........................................... 29
2.6 Financial Statements........................................ 29
2.7 Absence of Changes.......................................... 30
2.8 No Undisclosed Liabilities.................................. 32
2.9 Taxes....................................................... 32
2.10 Legal Proceedings........................................... 36
2.11 Compliance With Laws and Orders............................. 37
2.12 Benefit Plans: ERISA........................................ 37
2.13 Real Property............................................... 38
2.14 Tangible Personal Property.................................. 40
2.15 Intellectual Property Rights................................ 41
2.16 Contracts................................................... 42
2.17 Business Licenses........................................... 44
2.18 Insurance................................................... 44
2.19 Affiliate Transactions...................................... 44
2.20 Employees; Labor Relations.................................. 45
2.21 Environmental Matters, etc.................................. 45
2.22 Substantial Customers and Suppliers......................... 48
2.23 Accounts Receivable......................................... 48
AMENDED ASSET PURCHASE AGREEMENT i Page
2.24 Inventory................................................... 48
2.25 Vehicles.................................................... 48
2.26 No Guarantees............................................... 49
2.27 Entire Business............................................. 49
2.28 Brokers..................................................... 49
2.29 Year 2000................................................... 49
2.30 Disclosure.................................................. 50
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER............................. 51
3.1 Organization of Purchaser and the Purchasing Affiliates..... 51
3.2 Authority................................................... 51
3.3 No Conflicts................................................ 51
3.4 Governmental Approvals and Filings.......................... 52
3.5 Legal Proceedings........................................... 52
3.6 Brokers..................................................... 52
ARTICLE 4
COVENANTS OF SELLER..................................................... 53
4.1 Regulatory and Other Approvals.............................. 53
4.2 HSR Filings, etc............................................ 53
4.3 Investigation by Purchaser.................................. 54
4.4 No Solicitations............................................ 54
4.5 Conduct of Business......................................... 55
4.6 Financial Statements and Reports; Filings................... 55
4.7 Employee Matters............................................ 56
4.8 Certain Restrictions........................................ 57
4.9 Security Deposits........................................... 58
4.10 Delivery of Books and Records, etc.; Removal of Property.... 58
4.11 Noncompetition.............................................. 58
4.12 Notice and Cure............................................. 60
4.13 Fulfillment of Conditions................................... 60
4.14 Environmental Matters. .................................... 61
ARTICLE 5
COVENANTS OF PURCHASER.................................................. 61
5.1 Regulatory and Other Approvals.............................. 61
5.2 HSR Filings, etc............................................ 62
5.3 Notice and Cure............................................. 62
5.4 Fulfillment of Conditions................................... 63
AMENDED ASSET PURCHASE AGREEMENT ii Page
ARTICLE 6
CONDITIONS TO OBLIGATIONS OF PURCHASER.................................. 63
6.1 Representations and Warranties.............................. 63
6.2 Performance................................................. 64
6.3 Officers' Certificates...................................... 64
6.4 No Material Adverse Change.................................. 64
6.5 Orders and Laws............................................. 64
6.6 Regulatory Consents and Approvals........................... 65
6.7 Third Party Consents........................................ 65
6.8 Title Insurance............................................. 65
6.9 General Assignment, Assignment Instruments.................. 66
6.10 Transition Agreement........................................ 66
6.11 Trademark License Agreement................................. 66
6.12 Technology Transfer Agreement............................... 66
6.13 Ancillary Agreements........................................ 66
6.14 Malaysian Stock Purchase Agreement.......................... 66
6.15 Proceedings................................................. 66
6.16 Accounting Policies......................................... 66
ARTICLE 7
CONDITIONS TO OBLIGATIONS OF SELLER..................................... 67
7.1 Representations and Warranties.............................. 67
7.2 Performance................................................. 67
7.3 Officers' Certificates...................................... 67
7.4 Orders and Laws............................................. 68
7.5 Regulatory Consents and Approvals........................... 68
7.6 Third Party Consents........................................ 68
7.7 Assumption Agreement; Assumption Instruments................ 68
7.8 Transition Agreement........................................ 69
7.9 Trademark License Agreement................................. 69
7.10 Technology Transfer Agreement............................... 69
7.11 Ancillary Agreements........................................ 69
7.12 Malaysian Stock Purchase Agreement.......................... 69
7.13 Proceedings................................................. 69
ARTICLE 8
TAX MATTERS; CLOSING AND POST-CLOSING TAXES; VAT........................ 70
8.1 General..................................................... 70
8.2 Return Preparation.......................................... 70
8.3 Tax Refunds................................................. 71
8.4 Cooperation with Respect to Tax Matters..................... 72
AMENDED ASSET PURCHASE AGREEMENT iii Page
8.5 Transfer Taxes.............................................. 73
8.6 Real Property Taxes......................................... 74
8.7 VAT......................................................... 74
ARTICLE 9
EMPLOYEE MATTERS........................................................ 77
9.1 Offer of Employment......................................... 77
9.2 Purchaser's Plan Service Credits............................ 77
9.3 Employee Benefit Programs Service Credits................... 78
9.4 WARN Act.................................................... 78
9.5 Foreign Nationals........................................... 78
9.6 Seller COBRA Compliance..................................... 78
9.7 Evidence of Insurability.................................... 79
9.8 HMO Coverage................................................ 79
9.9 Direct Transfer of 401(k) Balances.......................... 79
ARTICLE 10
SURVIVAL OF REPRESENTATIONS, WARRANTIES,COVENANTS AND AGREEMENTS.............................................................. 79
ARTICLE 11 INDEMNIFICATION......................................................... 80
11.1 Tax Indemnification......................................... 80
11.2 Other Indemnification....................................... 82
11.3 Method of Asserting Claims.................................. 85
ARTICLE 12 TERMINATION............................................................. 88
12.1 Termination................................................. 88
12.2 Effect of Termination....................................... 91
ARTICLE 13 DEFINITIONS............................................................. 92
13.1 Definitions................................................. 92
ARTICLE 14 MISCELLANEOUS...........................................................104 14.1 Notices.....................................................104
14.2 Bulk Sales Act..............................................106
14.3 Entire Agreement............................................106 14.4 Expenses....................................................106
AMENDED ASSET PURCHASE AGREEMENT iv
14.5 Public Announcements........................................106
14.6 Sony-Tektronix Corporation..................................106 14.7 Waiver......................................................107 14.8 Amendment...................................................107
14.9 No Third Party Beneficiary..................................107
14.10 No Assignment: Binding Effect...............................107 14.11 Headings....................................................107
14.12 Invalid Provisions..........................................107
14.13 Governing Law...............................................108
14.14 Accounting Policies.........................................108 14.15 Counterparts................................................108
AMENDED ASSET PURCHASE AGREEMENT v EXHIBITS
Exhibit A Technology Transfer Agreement
AMENDED ASSET PURCHASE AGREEMENT vi
This AMENDED ASSET PURCHASE AGREEMENT dated as of September 22, 1999, is
made and entered into by and between XEROX CORPORATION, a New York corporation,
("Purchaser"), and TEKTRONIX, INC., an Oregon corporation, ("Seller").
Capitalized terms not otherwise defined herein have the meanings set forth in
Section 13.1.
WHEREAS, Seller, through its Color Printing and Imaging Products Division
(the "Division"), and the wholly owned subsidiaries and Affiliates of Seller
identified in Section 2.1 of the Disclosure Schedules hereto (each such
subsidiary or Affiliate, a "Selling Affiliate"; all such subsidiaries and
Affiliates, collectively, the "Selling Affiliates") are engaged in the business
of developing, manufacturing, distributing and servicing printers and related
products, accessories and supplies throughout the world (such business as
conducted by the Division and the Selling Affiliates is hereinafter referred to
as the "Business");
WHEREAS, Seller desires to sell, transfer and assign to Purchaser, and
desires to cause the Selling Affiliates to sell, transfer and assign to
Purchaser, substantially all of the assets relating to the Business, all in
accordance with the terms and conditions set forth in this Agreement; and
WHEREAS, Purchaser desires to purchase and acquire from Seller or the
Selling Affiliates, or to cause certain subsidiaries or Affiliates of Purchaser
(each such subsidiary or Affiliate, a "Purchasing Affiliate"; all such
subsidiaries and Affiliates, collectively, the "Purchasing Affiliates") to
purchase and acquire from Seller or the Selling Affiliates, said assets relating
to the Business and, in connection therewith, Purchaser has agreed to assume, or
to cause one or more Purchasing Affiliates to assume, certain Liabilities
relating to the Business, all in accordance with the terms and conditions set
forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1
SALE OF ASSETS AND CLOSING
1.1 Assets.
(a) Assets Purchased. On the terms and subject to the conditions set forth
in this Agreement, at the Closing or the applicable Foreign Closing, as the case
may be, Seller will sell, transfer, convey, assign and deliver to Purchaser or
to a Purchasing Affiliate or Purchasing Affiliates designated by Purchaser, and
will cause each of the Selling Affiliates to sell, transfer, convey, assign and
deliver to Purchaser or to the designated Purchasing Affiliate, free and clear
of all Liens other than Permitted Liens,
AMENDED ASSET PURCHASE AGREEMENT 2
all of Seller's or the Selling Affiliates' right, title and interest in, to and
under the Assets and Properties used or held for use primarily in connection
with the Business, including but not limited to those Assets and Properties
described in this Section 1.1(a), and Purchaser or the designated Purchasing
Affiliate will purchase and pay for such Assets and Properties, as the same
shall exist on the Closing Date or the applicable Foreign Closing Date, as the
case may be (collectively, the "Purchased Assets"). Without limiting the
generality of the foregoing, the Purchased Assets shall not include any of the
Excluded Assets described in Section 1.1(b), but shall include the following:
(i) Real Property. The real property described in Section 1.1(a)(i) of
the Disclosure Schedule, and all of the rights arising out of the ownership
thereof or appurtenant thereto (the "Real Property"), together with all
buildings, structures, facilities, fixtures and other improvements thereto
(the "Improvements");
(ii) Real Property Leases. The leases and subleases of real property
described in Section 1.1(a)(ii) of the Disclosure Schedule as to which
Seller or a Selling Affiliate is the lessee or sublessee, together with any
options to purchase the underlying property and leasehold improvements
thereon, and in each case all other rights, subleases, licenses, permits,
deposits and profits appurtenant to or related to such leases and subleases
(the "Real Property Leases");
(iii) Inventory. All inventories of raw materials, work-in-process,
finished goods, demonstration equipment, office and other supplies, parts,
packaging materials and other accessories related thereto which are used or
held for use primarily in the conduct of the Business, including any of the
foregoing purchased subject to any conditional sales or title retention
agreement in favor of any other Person, but excluding any inventory
disposed of in the ordinary course of business before the Closing Date in
accordance with Section 4.8(a), together with all rights against suppliers
of such inventories (the "Inventory");
(iv) Accounts Receivable. All trade accounts receivable and all notes,
bonds and other evidences of Indebtedness of and rights to receive payments
arising out of sales occurring in the conduct of the Business and all
Security Agreements related thereto, including any rights with respect to
any third party collection procedures or any other Actions or Proceedings
which have been commenced in connection therewith, excluding any accounts
receivables included in Intercompany Accounts and any Sales Taxes included
in accounts receivable that are not invoiced as of the Closing Date or the
applicable Foreign Closing Date (the "Accounts Receivable");
(v) Tangible Personal Property. All furniture, computer hardware and
software, fixtures, equipment, machinery, tools, dies, jigs, patterns,
molds, breadboards, prototypes, engineering and pre-engineering models and
AMENDED ASSET PURCHASE AGREEMENT 3
components and other tangible personal property (other than Inventory and
Vehicles) used or held for use primarily in the conduct of the Business
(including but not limited to the items listed in Section 1.1(a)(v) of the
Disclosure Schedule), including any of the foregoing purchased subject to
any conditional sales or title retention agreement in favor of any other
Person, but excluding any such items disposed of in the ordinary course of
business before the Closing Date in accordance with Section 4.8(a) (the
"Tangible Personal Property");
(vi) Personal Property Leases. (A) The leases or subleases of Tangible
Personal Property used or held for use primarily in the conduct of the
Business, including those described in Section 1.1(a)(vi)(A) of the
Disclosure Schedule as to which Seller or a Selling Affiliate is the lessor
or sublessor, and (B) the leases of Tangible Personal Property used or held
for use primarily in the conduct of the Business, including those described
in Section 1.1(a) (vi) (B) of the Disclosure Schedule as to which Seller or
a Selling Affiliate is the lessee or sublessee, together with any options
to purchase the underlying property (the leases and subleases described in
subclauses (A) and (B) hereof, the "Personal Property Leases");
(vii) Business Contracts. All Contracts (other than the Real Property
Leases, the Personal Property Leases and the Accounts Receivable) which are
utilized in the conduct of the Business, including without limitation those
Contracts relating to suppliers, sales representatives, sales agents,
distributors, dealers, value-added resellers, purchase orders, service
arrangements, marketing arrangements, manufacturing arrangements, research
and development arrangements, product development arrangements and
licensing arrangements, including those listed in Section 2.16(a) of the
Disclosure Schedule (the "Business Contracts");
(viii) Prepaid Expenses. All prepaid items related primarily to the
Business and reflected in the Statement of Closing Net Assets as "prepaid
expenses" (the "Prepaid Expenses ");
(ix) Intangible Personal Property. All customer lists, intangibles for
marketing and other intangibles used or held for use in the conduct and/or
development of the Business (including any goodwill therein) and all
rights, privileges, claims, causes of action and options relating or
pertaining to the Business or the Purchased Assets, including but not
limited to the rights arising out of the covenant of non-competition in
Section 4.11 and the items listed in Section 1.1(a) (ix) of the Disclosure
Schedule, provided, however, that all Intellectual Property, including any
Intellectual Property transferred under the Technology Transfer Agreement,
shall be excluded (the "Intangible Personal Property");
AMENDED ASSET PURCHASE AGREEMENT 4
(x) Business Licenses. All Licenses (including applications therefor)
utilized in the conduct of the Business (the "Business Licenses");
(xi) Vehicles. All motor vehicles owned or leased by Seller or a
Selling Affiliate and used or held for use primarily in the conduct of the
Business, including but not limited to the vehicles listed in Section
1.1(a) (xi) of the Disclosure Schedule (the "Vehicles");
(xii) Security Deposits. All security deposits deposited by or on
behalf of Seller or a Selling Affiliate as lessee or sublessee under the
Real Property Leases or the Personal Property Leases (the "Tenant Security Deposits");
(xiii) Books and Records. All Books and Records used or held for use
in the conduct of the Business or otherwise relating to the Total Acquired
Assets, other than the minute books, stock transfer books, Tax Returns and
corporate seal of Seller or a Selling Affiliate (the "Business Books and Records");
(xiv) Stock in Tektronix Malaysia Sdn. Bhd. All of the capital stock
and other equity or ownership interests owned by Seller or a Selling
Affiliate in Tektronix Malaysia Sdn. Bhd. to be acquired by Purchaser or a
Purchasing Affiliate in accordance with the terms and conditions of a Stock
Purchase Agreement, in form and substance reasonably acceptable to Seller
and Purchaser, that is usual and customary for transactions of such type in
Malaysia so as to effect the sale and transfer of all of the capital stock
of Tektronix Malaysia Sdn. Bhd. to the Purchaser or the designated
Purchasing Affiliate in order to give the parties the benefit of this
Agreement and to conform to the Laws, customs and practices of Malaysia;
(xv) Selling Affiliate Cash. All cash on hand and in banks with
respect to any Selling Affiliate, the Non-United States Purchased Assets of
which are not sold on the Closing Date and which arise in the operation of
the Business between the Closing Date and the applicable Foreign Closing
Date with respect to such Selling Affiliate (so long as such Foreign
Closing Date actually occurs); and
(xvi) Other Assets and Properties. All other Assets and Properties
used or held for use primarily in connection with the Business and not
excluded pursuant to Section 1.1(b) (the "Other Purchased Assets").
To the extent any of the Business Books and Records are items susceptible
to duplication and are either (AA) used in connection with any of Seller's or
the Selling Affiliates' businesses other than the Business or (BB) are required
by Law to be retained by Seller or a Selling Affiliate or are necessary to
assist Seller in the preparation of its financial statements, Seller or the
Selling Affiliate may deliver photocopies, other reproductions or electronic
media from which, in the case of Business Books and Records referred to in the
foregoing clause (AA), information solely concerning Seller's
AMENDED ASSET PURCHASE AGREEMENT 5
or the Selling Affiliates' businesses other than the Business has been deleted.
(b) Excluded Assets. Notwithstanding anything in this Agreement to the
contrary, the following Assets and Properties (the "Excluded Assets") shall be
excluded from and shall not constitute Purchased Assets:
(i) Cash. Cash, commercial paper, certificates of deposit and other
bank deposits, treasury bills, other cash equivalents and rebates received
prior to Closing to the extent not reflected in the Statement of Closing
Net Assets (whether in respect of suppliers, insurers or otherwise other
than warranty rights);
(ii) Insurance. Life insurance policies on officers and other
employees of Seller and all other insurance policies relating to the
operation of the Business and rights arising from any refunds due
(including, but not limited to, retrospective premium adjustment) with
respect to insurance premium payments;
(iii) Employee Benefit Plans. All assets owned or held by any Benefit
Plans unless such assets relate to a foreign benefit obligation which
Purchaser is required to assume under applicable Laws;
(iv) Tax Refunds. All refunds or credits, if any, of Taxes due to or
from Seller or any of its Affiliates unless such refunds or credits are
included in the Statement of Closing Net Assets;
(v) Tax Deposits. Deposits of Seller or any Selling Affiliate with any
Taxing Authority, including without limitation, tax deposits, prepayment
and estimated payments unless included in the Statement of Closing Net Assets;
(vi) Deferred Tax Assets. Any Deferred Tax Assets of Seller or any
Selling Affiliate related to the Business;
(vii) Tax and Financial Records. Seller's and Selling Affiliates' Tax
Returns, tax and financial records and reports and other documents and
records pertaining to Seller's and Selling Affiliates' operation of the
Business that Seller or Selling Affiliates are required by Laws to retain
or that will be necessary or advisable for Seller or Selling Affiliates to
retain, in their reasonable discretion, for tax or related purposes;
(viii) Real and Personal Property and Real Property Leases. The real
and personal property and real property leases described in Section
1.1(b)(viii) of the Disclosure Schedule;
(ix) Litigation Claims. Any rights (including indemnification) and
claims and recoveries under litigation of Seller or a Selling Affiliate (A)
AMENDED ASSET PURCHASE AGREEMENT 6
commenced against third parties prior to the Closing Date or the applicable
Foreign Closing Date if and to the extent related to any of the Excluded
Assets or Retained Liabilities, whether arising by way of counterclaim or
otherwise or (B) arising out of or relating to events that occur following
the Closing;
(x) Shared Assets. The Shared Assets as defined in Section 2.27;
(xi) Intellectual Property. The Intellectual Property to be
transferred or licensed to Purchaser pursuant to the Technology Transfer Agreement;
(xii) Excluded Obligations. The rights and obligations of Seller or a
Selling Affiliate in, to and under (A) all Contracts listed in Section
1.1(b)(xii) of the Disclosure Schedule or (B) any other Contracts, unless
the obligations of Seller or a Selling Affiliate in, to and under such
other Contracts are expressly assumed by Purchaser pursuant to Section 1.2(a);
(xiii) Tradename and Logo. All right, title and interest in, to and
under the "Tektronix" name, trademark, service mark and the Tektronix logo;
(xiv) Prepaid Expenses. Rights arising from prepaid expenses, if any,
with respect to Excluded Assets;
(xv) Other Excluded Assets and Properties. The Assets and Properties
described on Schedule 1.1(b)(xv) of the Disclosure Schedule;
(xvi) Certain Rights of Seller. Seller's rights under this Agreement,
the Ancillary Agreements and the Operative Agreements;
(xvii) Assets Disposed of in the Ordinary Course of Business. Any
assets described in the Disclosure Schedules to Section 1.1 that are
transferred or otherwise disposed of by Seller or a Selling Affiliate prior
to the Closing in the ordinary course of business without violation of this
Agreement; and
(xviii) Non-Business Assets and Properties. Any of the Assets and
Properties of Seller or a Selling Affiliate that are not primarily related
to or used primarily in connection with the Business, including but not
limited to, Assets and Properties used in Seller's measurement business or
video business.
1.2 Liabilities.
(a) Assumed Liabilities. In connection with the sale, transfer, conveyance,
assignment and delivery of the Purchased Assets pursuant to this Agreement, on
the terms and subject to the conditions set forth in this Agreement, at the
Closing or the applicable Foreign Closing, as the case may be, subject to
Section 11.2(a)(iii), Purchaser will assume and agree to pay, perform and
discharge when due, or will cause a
AMENDED ASSET PURCHASE AGREEMENT 7
designated Purchasing Affiliate to assume and agree to pay, perform and
discharge when due, the following obligations of Seller or a Selling Affiliate,
as the case may be, arising primarily in connection with the operation of the
Business, as the same shall exist on the Closing Date or the applicable Foreign
Closing Date, as the case may be (the "AssumedLiabilities"), and no others:
(i) Real Property Lease Obligations. All obligations of Seller or a
Selling Affiliate under the Real Property Leases;
(ii) Accounts Payable. All obligations of Seller or a Selling
Affiliate with respect to accounts payable reflected or reserved against in
the Statement of Closing Net Assets and those arising in the ordinary
course of business since the date of the Statement of Closing Net Assets,
excluding (X) accounts payable included in Intercompany Accounts and (Y)
any amounts attributable to VAT which have been invoiced as of the Closing
Date or the applicable Foreign Closing Date (the "Accounts Payable");
(iii) Personal Property Lease Obligations. All obligations of Seller
or a Selling Affiliate under the Personal Property Leases;
(iv) Obligations under Business Contracts and Business Licenses. All
obligations of Seller or a Selling Affiliate under the Business Contracts
and Business Licenses;
(v) Accrued Expenses. All obligations of Seller or a Selling Affiliate
with respect to accrued expenses reflected or reserved against in the
Statement of Closing Net Assets or those incurred in the ordinary course of
business since the date of the Statement of Closing Net Assets, excluding
all accrued and unpaid expenses payable under Intercompany Accounts and all
Taxes (except to the extent they are Assumed Real Property Taxes) (the
"Accrued Expenses");
(vi) Assumed Real Property Taxes. The Prorated Real Property Taxes
arising out of the Business for the tax period during which the Closing
Date or the applicable Foreign Closing Date occurs (excluding any Liability
for Taxes arising out of the sale or transfer of the Real Property) (the
"Assumed Real Property Taxes"). The Assumed Real Property Taxes shall be
treated as an Assumed Liability irrespective of whether, at the time of
Closing or the applicable Foreign Closing, liability for the Real Property
Taxes attached or whether such Real Property Taxes have become payable or
have been paid by Seller or any Selling Affiliate;
(vii) Security Deposits. All obligations of Seller or a Selling
Affiliate with respect to any security deposit held by Seller or a Selling
Affiliate as lessor or sublessor under the Real Property Leases and the
Personal Property Leases (the "Landlord Security Deposits");
AMENDED ASSET PURCHASE AGREEMENT 8
(viii) Severance and Other Employee-Related Liabilities. All
Liabilities and obligations expressly assumed by Purchaser in accordance
with Article 9;
(ix) Balance Sheet Liabilities. All Liabilities and obligations
reflected in the Statement of Closing Net Assets;
(x) Liabilities of Selling Affiliates. All Liabilities of Selling
Affiliates, the Non-United States Purchased Assets of which are not sold on
the Closing Date, which arise in the operation of the Business between the
Closing Date and the Foreign Closing Date with respect to such Selling
Affiliate (so long as such Foreign Closing Date actually occurs);
(xi) Warranty Obligations. All Liabilities and obligations under all
of Seller's or a Selling Affiliate's warranty arrangements for Business
products sold before or after the Closing, which arrangements were made in
the ordinary course of business consistent with past practices;
(xii) Customer Support and Service. All Liabilities and obligations
for customer support and services under Seller's policies and practices for
the Business, whether arising before or after the Closing, which policies
and practices were made in the ordinary course of business consistent with
past practices;
(xiii) Customer Policies. All Liabilities and obligations of the
Business to customers whose purchased products are no longer covered by
warranty consistent with Seller's long-term support policies, whether
arising before or after the Closing, which policies were made in the
ordinary course of business consistent with past practices; provided, that
such obligations and Liabilities shall be discharged in a manner and with a
level of professionalism customary in the industry and consistent with
Purchaser's practices;
(xiv) Wilsonville, Oregon. All Liabilities or obligations of Seller or
any Selling Affiliate, whether known or unknown, fixed or contingent, with
respect to or relating to any Environmental Laws or any Environmental Claim
arising out of any acts, omissions, or conditions relating to the
operations associated with the Real Property located at Wilsonville,
Oregon, but specifically excluding any Environmental Claim related to the
real property (located adjacent to Seller's Wilsonville, Oregon, property)
that was sold by Seller to Venture Properties, Inc. in 1998;
(xv) Intellectual Property Infringement. All claims against or
Liabilities of Seller or any Selling Affiliates arising out of or in any
way connected with infringement of any Intellectual Property arising out of
the conduct of the Business, whether before or after the Closing Date,
regardless of whether said claim or Liability is asserted, including but
not limited to any claim
AMENDED ASSET PURCHASE AGREEMENT 9
or Liability for consequential or punitive damages in connection with the foregoing;
(xvi) Litigation. All Liabilities and obligations related to pending
litigation listed in Section 2.10 of the Disclosure Schedule;
(xvii) Other Taxes. All Taxes expressly assumed by Purchaser or
Purchasing Affiliates in accordance with Article 8;
(xviii) Hazardous Products, etc. Any claims against or Liabilities
arising out of or in any way connected with (A) Products that contain a
hazard or are found by any Governmental or Regulatory Authority to contain
a hazard as that term is used in the United States Consumer Product Safety
Commission Act or any similar Laws (including, but not limited to, any
voluntary or required recalls of such Products), or (B) Epidemic Failures
of Products (including but not limited to any costs or expenses incurred in
connection with refunds, returns, replacements or repairs of same), in
either case arising out of the sale of Products or the conduct of the
Business by Seller or any Selling Affiliate prior to the Closing Date or
the applicable Foreign Closing Date, regardless of when or against whom
said claim or Liability is asserted, including, but not limited to, any
claim or Liability for consequential or punitive damages in connection with
the foregoing and, in either case, excluding Retained Liabilities described
in Section 1.2(b)(vii); and
(xix) Print Head Drift. All Liabilities and obligations related to
print head drift associated with Seller's Phaser 340/350/360 Products
("Print Head Drift").
Subject to Section 11.2(a)(iii), Purchaser shall remain solely responsible
for satisfying, discharging or performing all such Assumed Liabilities on a
timely basis in accordance with their terms, provided Purchaser or a Purchasing
Affiliate shall have the ability to contest, in good faith, any such claim of
Liability asserted in respect thereof by any Person.
(b) Retained Liabilities. Except for the Assumed Liabilities, and without
any implication that Purchaser or a Purchasing Affiliate is assuming any
Liability not expressly excluded by this Section 1.2(b) and, where applicable,
without any implication that any of the following would constitute Assumed
Liabilities but for this Section 1.2(b), neither Purchaser nor any Purchasing
Affiliate shall assume by virtue of this Agreement or the transactions
contemplated hereby, and shall have no liability for, any Liabilities of Seller
or a Selling Affiliate (including, without limitation, those related to the
Business) of any kind, character or description whatsoever, whether known or
unknown, contingent or otherwise, including but not limited to those Liabilities
described in this Section 1.2(b) (the "Retained Liabilities").
AMENDED ASSET PURCHASE AGREEMENT 10
(i) Intercompany Accounts. Any Liabilities reflected in Intercompany Accounts;
(ii) Fees. Any Liabilities for legal, accounting, audit and investment
banking fees, brokerage commissions, and any other expenses incurred by
Seller or the Selling Affiliates in connection with the negotiation and
preparation of this Agreement and the sale of the Assets and Properties;
(iii) Taxes. Any Liabilities of Seller or any of its Affiliates for
Taxes, irrespective of the manner in which such Taxes are reflected on the
financial statements of Seller or any Affiliate, including any Deferred Tax
Liability, except to the extent they are Assumed Real Property Taxes or are
expressly assumed by Purchaser or any Purchasing Affiliate in accordance
with Article 8;
(iv) Debt. Any Liability for or related to Indebtedness of Seller or
any of the Selling Affiliates, on its own behalf or on behalf of other
Persons, to banks, financial institutions or other Persons with respect to
borrowed money and including any interest payable in respect thereof;
(v) Severance Payments. Any Liabilities of Seller or any of the
Selling Affiliates to pay severance benefits or similar obligations which
arise either from any action by Seller or a Selling Affiliate prior to the
Closing Date or the applicable Foreign Closing Date or by virtue of the
sale of the Purchased Assets pursuant to the provisions hereof (other than
(A) any such Liabilities which arise out of any action by Purchaser or a
Purchasing Affiliate on or following the Closing Date or the applicable
Foreign Closing Date with respect to a Transferred Employee, it being
understood and agreed that any such Liabilities constitute Assumed
Liabilities hereunder or (B) obligations of Purchaser under Article 9);
(vi) Worker Claims. Any Liability in respect of any wrongful discharge
claim or claims by any Employees of Seller or any Selling Affiliate under
any Laws arising out of the conduct of the Business by Seller or by any
Selling Affiliate on or before the Closing Date or the applicable Foreign
Closing Date;
(vii) Tort and Product Claims. Any claims against or Liabilities of
Seller or any Selling Affiliates for injury to or death of persons
(including, without limitation, any worker's compensation claims) or
damages to or destruction of property, arising from the sale or
distribution of Products distributed, and/or business services provided, by
Seller or any Selling Affiliate prior to the Closing Date or the applicable
Foreign Closing Date, regardless of when said claim or Liability is
asserted, including but not limited to, any claim or Liability for
consequential or punitive damages in connection with the foregoing;
AMENDED ASSET PURCHASE AGREEMENT 11
(viii) Benefit Plans. Except as specifically provided in Article 9,
any Liabilities arising out of or in connection with any of the Benefit Plans;
(ix) Employee Payments. Any so-called "sale bonuses" or similar
payments payable to any Employees of Seller or any Selling Affiliate by
reason of the sale of the Purchased Assets;
(x) Environmental Claims. Any Liabilities or obligations of Seller or
any Selling Affiliate, whether known or unknown, fixed or contingent, with
respect to, or relating to, any Environmental Laws or any Environmental
Claim, arising out of any acts, omissions, or conditions relating to the
operations of the Business at locations other than Wilsonville, Oregon,
including but not limited to the disposal of, transportation to, and
arrangements for disposal of Hazardous Materials at Seller's Beaverton,
Oregon, Treatment, Storage and Disposal Facility, the Western Processing
Superfund Site located in Kent, Washington, and/or any other location and
Hazardous Materials Contamination on the real property (located adjacent to
Seller's Wilsonville, Oregon property) that was sold by Seller to Venture
Properties, Inc. in 1998, Seller's former manufacturing facility in
Heerenveen, The Netherlands, that was sold in 1996 and the Nanticoke
Microtechnologies facility in Nanticoke, Pennsylvania;
(xi) Non-Purchased Assets. Except as otherwise expressly provided in
this Agreement, any Liability or obligation, whether presently in existence
or hereafter arising, which is attributable to Assets and Properties that
are not Purchased Assets;
(xii) Litigation. Any Liability of Seller or any Selling Affiliates
for any claim, complaint, action, suit, proceeding, arbitration or
litigation (pending, threatened, contingent or otherwise) arising out of
any acts, omissions or conditions that occurred prior to the Closing Date
or the applicable Foreign Closing Date, except to the extent assumed by
Purchaser or a Purchasing Affiliate pursuant to Section 1.2(a); and
(xiii) Other. Without limitation by the specific enumeration of the
foregoing, any Liabilities not expressly assumed by Purchaser or a
Purchasing Affiliate pursuant to Section 1.2(a).
Seller shall remain solely responsible for satisfying, discharging or performing
all such Retained Liabilities on a timely basis in accordance with their terms,
provided that Seller or a Selling Affiliate shall have the ability to contest,
in good faith, any such claim of Liability asserted in respect thereof by anyPerson.
1.3 Sale of United States Purchased Assets and Non-United States Purchased
Assets Owned by Selling Affiliates and Assumption of Assumed Liabilities by the
Purchasing Affiliates. Tektronix Export, Inc. ("TEI") and Tektronix Asia, Ltd.("Tek
AMENDED ASSET PURCHASE AGREEMENT 12
Asia") shall sell their United States Purchased Assets to Purchaser under terms
and conditions identical to the terms and conditions contained in this Agreement
governing the sale by Seller of its United States Purchased Assets. Seller shall
provide Purchaser with a separate bill of sale and any other commercially
reasonable documentation requested by Purchaser to evidence the sale of TEI and
Tek Asia's United States Purchased Assets to Purchaser. Certain of the
Non-United States Purchased Assets shall be sold to the Purchasing Affiliates
designated by Purchaser and certain of the Assumed Liabilities shall be assumed
by such Purchasing Affiliates pursuant to the terms and conditions of separate
Asset Purchase Agreements, in form and substance reasonably acceptable to Seller
and Purchaser, so as to effect the sale, transfer and assignment of the Assets
and Properties of the Selling Affiliates to the Purchasing Affiliates and the
assumption of the associated Assumed Liabilities by the Purchasing Affiliates in
order to give the parties the benefit of this Agreement and to conform to the
Laws, customs and practices of the relevant jurisdiction, as follows:
(a) Seller shall cause its Selling Affiliate, Tektronix Gesellschaft m.b.H.
("Austria Tek") to sell, transfer and assign the Assets and Properties of
Austria Tek that constitute Non-United States Purchased Assets to Purchasing
Affiliates, Xerox Austria G.m.b.H. ("Xerox Austria"), which shall purchase all
of Austria Tek's Assets and Properties except for the Intangible Personal
Property and Accounts Receivable which shall be purchased by Xerox Channels
Limited ("Xerox Channels") and Purchaser shall cause Xerox Austria and Xerox
Channels to purchase such Assets and Properties and to assume certain Assumed
Liabilities from Austria Tek (the "Austria Acquisition");
(b) Seller shall cause its Selling Affiliate, Tektronix Australia Pty. Ltd.
("Australia Tek"), to sell, transfer and assign the Assets and Properties of
Australia Tek that constitute Non-United States Purchased Assets to Purchaser or
a designated Australian Purchasing Affiliate and Purchaser shall, or shall cause
such designated Purchasing Affiliate to purchase such Assets and Properties and
to assume certain Assumed Liabilities from Australia Tek (the "AustraliaAcquisition");
(c) Seller shall cause its Selling Affiliate, Tektronix N.V. ("Belgium
Tek"), to sell, transfer and assign the Assets and Properties of Belgium Tek
that constitute NonUnited States Purchased Assets to Purchasing Affiliates, N.V.
Xerox S.A. ("Xerox Belgium"), which shall purchase all of Belgium Tek's Assets
and Properties except for the Intangible Personal Property and Accounts
Receivable which shall be purchased by Xerox Channels and Purchaser shall cause
Xerox Belgium and Xerox Channels to purchase such Assets and Properties and to
assume certain Assumed Liabilities from Belgium Tek (the "Belgium Acquisition");
(d) Seller shall cause its Selling Affiliate, Tektronix Industria e
Comercio Ltda. ("Brazil Tek"), to sell, transfer and assign the Assets and
Properties of Brazil Tek that constitute Non-United States Purchased Assets to
Purchasing Affiliate, Xerox Commercio E. Industria Ltda. ("Xerox Brazil"), and
Purchaser shall cause Xerox Brazil
AMENDED ASSET PURCHASE AGREEMENT 13
to purchase such Assets and Properties and to assume certain Assumed Liabilities
from Brazil Tek (the "Brazil Acquisition");
(e) Seller shall cause its Selling Affiliate, Tektronix Canada, Inc.
("Canada Tek"), to sell, transfer and assign the Assets and Properties of Canada
Tek that constitute Non-United States Purchased Assets to Purchasing Affiliate,
Xerox Canada Ltd. ("Xerox Canada"), and Purchaser shall cause Xerox Canada to
purchase such Assets and Properties and to assume certain Assumed Liabilities
from Canada Tek (the "Canada Acquisition");
(f) Seller shall cause its Selling Affiliate, Tektronix Electronics (China)
Co., Ltd. ("China Tek"), to sell, transfer and assign the Assets and Properties
of China Tek that constitute Non-United States Purchased Assets to Purchaser or
to its designated Chinese Purchasing Affiliate and Purchaser shall, or shall
cause its designated Chinese Purchasing Affiliate to, purchase such Assets and
Properties and to assume certain Assumed Liabilities from China Tek (the "ChinaAcquisition");
(g) Seller shall cause its Selling Affiliate, Tektronix A/S ("Denmark
Tek"), to sell, transfer and assign the Assets and Properties of Denmark Tek
that constitute NonUnited States Purchased Assets to Purchasing Affiliates,
Xerox A/S ("Xerox Denmark"), which shall purchase all of Denmark Tek's Assets
and Properties except for the Intangible Personal Property and Accounts
Receivable which shall be purchased by Xerox Channels and Purchaser shall cause
Xerox Denmark and Xerox Channels to purchase such Assets and Properties and to
assume certain Assumed Liabilities from Denmark Tek (the "Denmark Acquisition");
(h) Seller shall cause its Selling Affiliate, Tektronix Oy ("Finland Tek"),
to sell, transfer and assign the Assets and Properties of Finland Tek that
constitute NonUnited States Purchased Assets to Purchasing Affiliates, Xerox Oy
("Xerox Finland"), which shall purchase all of Finland Tek's Assets and
Properties except for the Intangible Personal Property and Accounts Receivable
which shall be purchased by Xerox Channels, and Purchaser shall cause Xerox
Finland and Xerox Channels to purchase such Assets and Properties and to assume
certain Assumed Liabilities from Finland Tek (the "Finland Acquisition");
(i) Seller shall cause its Selling Affiliate, Tektronix S.A. ("France
Tek"), to sell, transfer and assign the Assets and Properties of France Tek that
constitute NonUnited States Purchased Assets to Purchasing Affiliates, Xerox -
THE DOCUMENT COMPANY SAS ("Xerox France"), which shall purchase all of France
Tek's Assets and Properties except for the Intangible Personal Property and
Accounts Receivable which shall be purchased by Xerox Channels, and Purchaser
shall cause Xerox France and Xerox Channels to purchase such Assets and
Properties and to assume certain Assumed Liabilities from France Tek (the
"France Acquisition");
AMENDED ASSET PURCHASE AGREEMENT 14
(j) Seller shall cause its Selling Affiliate, Tektronix GmbH ("Germany
Tek"), to sell, transfer and assign the Assets and Properties of Germany Tek
that constitute NonUnited States Purchased Assets to Purchasing Affiliates,
Xerox GmBh ("Xerox Germany"), which shall purchase all of Germany Tek's Assets
and Properties except for the Intangible Personal Property and Accounts
Receivable which shall be purchased by Xerox Channels, and Purchaser shall cause
Xerox Germany and Xerox Channels to purchase such Assets and Properties and to
assume certain Assumed Liabilities from Germany Tek (the "Germany Acquisition");
(k) Seller shall cause its Selling Affiliate, Tektronix Hong Kong Limited
("Hong Kong Tek"), to sell, transfer and assign the Assets and Properties of
Hong Kong Tek that constitute Non-United States Purchased Assets to Purchaser or
its designated Hong Kong Purchasing Affiliate and Purchaser shall, or shall
cause such designated Hong Kong Purchasing Affiliate to, purchase such Assets
and Properties and to assume certain Assumed Liabilities from Hong Kong Tek (the
"Hong Kong Acquisition");
(l) Seller shall cause its Selling Affiliate, Tektronix (India) Limited
("India Tek"), to sell, transfer and assign the Assets and Properties of India
Tek that constitute Non-United States Purchased Assets to Purchaser or its
designated Indian Purchasing Affiliate and Purchaser shall, or shall cause such
designated Indian Purchasing Affiliate to, purchase such Assets and Properties
and to assume certain Assumed Liabilities from India Tek (the "IndiaAcquisition");
(m) Seller shall cause its Selling Affiliate, Tektronix S.p.A. ("Italy
Tek"), to sell, transfer and assign the Assets and Properties of Italy Tek that
constitute Non-United States Purchased Assets to Purchasing Affiliates, Xerox
S.p.A. ("Xerox Italy") which shall purchase all of Italy Tek's Assets and
Properties except for the Intangible Personal Property and Accounts Receivable
which shall be purchased by Xerox Channels, and Purchaser shall cause Xerox
Italy and Xerox Channels to purchase such Assets and Properties and to assume
certain Assumed Liabilities from Italy Tek (the "Italy Acquisition");
(n) Seller shall cause its Selling Affiliate, Tektronix Korea, Ltd. ("Korea
Tek"), to sell, transfer and assign the Assets and Properties of Korea Tek that
constitute NonUnited States Purchased Assets to Purchaser or its designated
Korean Purchasing Affiliate, and Purchaser shall, or shall cause such designated
Korean Purchasing Affiliate to, purchase such Assets and Properties and to
assume certain Assumed Liabilities from Korea Tek (the "Korea Acquisition");
(o) Seller shall cause its Selling Affiliate, Tektronix, S.A. de C.V.
("Mexico Tek"), to sell, transfer and assign the Assets and Properties of Mexico
Tek that constitute Non-United States Purchased Assets to Purchasing Affiliate,
Xerox Mexicana, S.A. de C.V. ("Xerox Mexico"), and Purchaser shall cause Xerox
Mexico to purchase such Assets and Properties and to assume certain Assumed
Liabilities from Mexico Tek (the "Mexico Acquisition");
AMENDED ASSET PURCHASE AGREEMENT 15
(p) Seller shall cause its Selling Affiliate, Tektronix Holland N.V.
("Holland Tek"), to sell, transfer and assign the Assets and Properties of
Holland Tek that constitute Non-United States Purchased Assets to Purchasing
Affiliates, Xerox (Nederland) BV ("Xerox Netherland"), which shall purchase all
of Holland Tek's Assets and Properties except for the Intangible Personal
Property and Accounts Receivable which shall be purchased by Xerox Channels, and
Purchaser shall cause Xerox Netherland and Xerox Channels to, purchase such
Assets and Properties and to assume certain Assumed Liabilities from Holland Tek
(the "Holland Acquisition");
(q) Seller shall cause its Selling Affiliate, Tektronix Distribution Europe
B.V. ("Europe Tek"), to sell, transfer and assign the Assets and Properties of
Europe Tek that constitute Non-United States Purchased Assets to Xerox Holding
(Nederland) BV ("Xerox Holding Holland") and/or its designated Dutch Purchasing
Affiliate which shall purchase all of Europe Tek's Assets and Properties and
Purchaser shall cause Xerox Holding Holland and/or its designated Dutch
Purchasing Affiliate to assume certain Assumed Liabilities from Europe Tek (the
"Dutch Acquisition").
(r) Seller shall cause its Selling Affiliate, Tektronix Norge A/S ("Norway
Tek"), to sell, transfer and assign the Assets and Properties of Norway Tek that
constitute NonUnited States Purchased Assets to Purchasing Affiliates, Xerox AS
("Xerox Norway") which shall purchase all of Norway Tek's Assets and Properties
except for the Intangible Personal Property and Accounts Receivable which shall
be purchased by Xerox Channels, and Purchaser shall cause Xerox Norway and Xerox
Channels to purchase such Assets and Properties and to assume certain Assumed
Liabilities from Norway Tek (the "Norway Acquisition");
(s) Seller shall cause its Selling Affiliate, Tektronix Southeast Asia Pte
Ltd ("Singapore Tek"), to sell, transfer and assign the Assets and Properties of
Singapore Tek that constitute Non-United States Purchased Assets to Purchaser or
its designated Singapore Purchasing Affiliate and Purchaser shall, or cause such
designated Singapore Purchasing Affiliate to, purchase such Assets and
Properties and to assume certain Assumed Liabilities from Singapore Tek (the
"Singapore Acquisition");
(t) Seller shall cause its Selling Affiliate, Tektronix Espanola, S.A.
("Spain Tek"), to sell, transfer and assign the Assets and Properties of Spain
Tek that constitute Non-United States Purchased Assets to Purchasing Affiliates,
Xerox Espana, The Document Company, S.A.U. ("Xerox Spain") which shall purchase
all of Spain Tek's Assets and Properties except for the Intangible Personal
Property and Accounts Receivable which shall be purchased by Xerox Channels, and
Purchaser shall cause Xerox Espana and Xerox Channels to purchase such Assets
and Properties and to assume certain Assumed Liabilities from Spain Tek (the
"Spain Acquisition");
(u) Seller shall cause its Selling Affiliate, Tektronix AB ("Sweden Tek"),
to sell, transfer and assign the Assets and Properties of Sweden Tek that
constitute Non-United States Purchased Assets to Purchasing Affiliates, Xerox AB
("Xerox Sweden"), which shall
AMENDED ASSET PURCHASE AGREEMENT 16
purchase all of Sweden Tek's Assets and Properties except for the Intangible
Personal Property and Accounts Receivable which shall be purchased by Xerox
Channels, and Purchaser shall cause Xerox Sweden and Xerox Channels to purchase
such Assets and Properties and to assume certain Assumed Liabilities from Sweden
Tek (the "Sweden Acquisition");
(v) Seller shall cause its Selling Affiliate, Tektronix International AG
("Switzerland Tek"), to sell, transfer and assign the Assets and Properties of
Switzerland Tek that constitute Non-United States Purchased Assets to Purchasing
Affiliate, Xerox AG ("Xerox Switzerland") which shall purchase all of
Switzerland Tek's Assets and Properties except for the Intangible Personal
Property and Accounts Receivable which shall be purchased by Xerox Channels, and
Purchaser shall cause Xerox Switzerland and Xerox Channels to purchase such
Assets and Properties and to assume certain Assumed Liabilities from Switzerland
Tek (the "Switzerland Acquisition");
(w) Seller shall cause its Selling Affiliate, Tektronix Taiwan, Ltd.
("Taiwan Tek"), to sell, transfer and assign the Assets and Properties of Taiwan
Tek that constitute Non-United States Purchased Assets to Purchaser or its
designated Taiwanese Purchasing Affiliate and Purchaser shall, or shall cause
such designated Taiwanese Purchasing Affiliate to, purchase such Assets and
Properties and to assume certain Assumed Liabilities from Taiwan Tek (the
"Taiwan Acquisition");
(x) Seller shall cause its Selling Affiliate, Tektronix U.K. Limited
("United Kingdom Tek"), to sell, transfer and assign the Assets and Properties
of United Kingdom Tek that constitute Non-United States Purchased Assets to
Purchasing Affiliates, Xerox (UK) Limited ("Xerox UK"), which shall purchase all
of United Kingdom Tek's Assets and Properties except for the Intangible Personal
Property and Accounts Receivable which shall be purchased by Xerox Channels, and
the lease on the Lithuanian property, which shall be purchased by a Purchasing
Affiliate designated by Purchaser, and Purchaser shall cause Xerox UK, Xerox
Channels and the designated Purchasing Affiliate to purchase such Assets and
Properties and to assume certain Assumed Liabilities from United Kingdom Tek
(the "United Kingdom Acquisition");
(y) Seller shall cause its Selling Affiliate, Tektronix Export Inc.
("TEI"), to sell, transfer and assign the Assets and Properties of TEI that
constitute Non-United States Purchased Assets in the Netherlands to Xerox
(Europe) Limited; and in Brazil, Australia, Canada and Hong Kong to Purchaser or
its designated Brazilian, Australian, Canadian and Hong Kong Purchasing
Affiliates respectively, and Purchaser shall or shall cause the aforementioned
designated Purchasing Affiliates to, purchase such Assets and Properties and to
assume certain Assumed Liabilities from TEI (the "TEI Acquisition").
(z) Seller shall cause either its Selling Affiliate, GVG Japan, Ltd. ("GVG
Japan Tek"), or Seller's designated Japanese Selling Affiliate, to sell,
transfer and assign the Assets and Properties presently owned by GVG Japan Tek,
or subsequently owned by Seller or Seller's designated Japanese Selling
Affiliate (the former being referred to as "Japan's
AMENDED ASSET PURCHASE AGREEMENT 17
Successor") that constitute Non-United States Purchased Assets to Purchaser or
its designated Japanese Purchasing Affiliate, and Purchaser shall, or cause such
designated Japanese Purchasing Affiliate to, purchase such Assets and Properties
and to assume certain Assumed Liabilities from Japan Tek or Japan's Successor
(the "Japan Acquisition");
(aa) Seller shall cause its Selling Affiliate, Tektronix Europe Ltd. ("Ltd.
Tek"), to sell, transfer and assign the Assets and Properties of Ltd. Tek that
constitute Non-United States Purchased Assets to Purchasing Affiliate, Xerox
(Europe) Limited ("Xerox Europe"), and Purchaser shall cause Xerox Europe to
purchase such Assets and Properties and to assume certain Assumed Liabilities
from Ltd. Tek (the "Europe Acquisition").
The portion of the Purchase Price Consideration and Cash Purchase Price in
respect of each of the Asset Purchase Agreements referred to in this Section 1.3
shall be as determined in Section 1.4. The Asset Purchase Agreements referred to
in this Section 1.3, together with any other agreements, documents or
instruments executed in connection therewith, are referred to, collectively, in
this Agreement as the "Ancillary Agreements". Seller unconditionally guarantees
any and all Liabilities and obligations of each Selling Affiliate in accordance
with the terms of this Agreement and the Ancillary Agreements to which it is a
party. In the event any Foreign Closing does not occur on the Closing Date,
Seller shall cause its Selling Affiliate to enter into arrangements reasonably
acceptable to the parties hereto with respect to the operation of that portion
of the Business until the consummation of the Foreign Closing or the termination
of this Agreement in respect thereof in accordance with Section 1.5.
Notwithstanding the foregoing, Purchaser shall have the right to designate any
other Purchasing Affiliate or Purchasing Affiliates to take the place of and be
substituted for another Purchasing Affiliate or Purchasing Affiliates at any
time at least ten (10) Business Days prior to the Closing Date or the applicable
Foreign Closing Date and Seller agrees that neither Seller nor any Selling
Affiliate shall refuse to amend the relevant Ancillary Agreements so as to
effect such designation. Further, in the event that a Selling Affiliate owns or
uses Assets and Properties that constitute Purchased Assets in any geographic
territory or jurisdiction other than the one set forth above in connection with
such Selling Affiliate, Purchaser may designate a Purchasing Affiliate in such
other geographic territory or jurisdiction to purchase such Assets and
Properties pursuant to the terms of an Asset Purchase Agreement to be executed
in respect thereof.
1.4 Purchase Price; Allocation; Adjustment.
(a) Purchase Price. The aggregate purchase price (the "Purchase Price
Consideration") for the Purchased Assets, the Purchased Intellectual Property
and for the covenants of Seller contained in Section 4.11 (collectively, the
"Total Acquired Assets") is the sum of (i) Nine Hundred Fifty Million Dollars
($950,000,000.00) (the "Cash Purchase Price"), subject to adjustment as provided
in Section 1.4(c), and (ii) Purchaser's and the Purchasing A
