Exhibit 10.2





Exhibit 10.2



Execution Version






ASSET PURCHASE AGREEMENT



BY AND AMONG




JUNIPER NETWORKS, INC.




AND




OPNEXT SUBSYSTEMS, INC.




DATED AS OF FEBRUARY 9, 2011




Asset Purchase Agreement





 


 









 







Table of Contents




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	ARTICLE I Definitions
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II Purchase and Sale of Assets
	 	 	7	 
	 
	 	 	 	 
	Section 2.1 Transfer of Assets
	 	 	7	 
	Section 2.2 Delivery of Transferred Assets
	 	 	8	 
	Section 2.3 Liabilities
	 	 	8	 
	Section 2.4 Closings, Purchase Price; Closing Deliveries; Releases
	 	 	9	 
	Section 2.5 Consulting Services Terms
	 	 	16	 
	Section 2.6 Buyer Options if Additional Transferred Assets Not Accepted by Buyer by Expected Completion Date
	 	 	16	 
	 
	 	 	 	 
	ARTICLE III [RESERVED]
	 	 	18	 
	 
	 	 	 	 
	ARTICLE IV Representations and Warranties of Buyer
	 	 	18	 
	 
	 	 	 	 
	Section 4.1 Organization, Power, Standing
	 	 	18	 
	Section 4.2 Due Authorization
	 	 	18	 
	Section 4.3 No Conflict
	 	 	18	 
	Section 4.4 Litigation
	 	 	19	 
	Section 4.5 Sufficient Funds
	 	 	19	 
	Section 4.6 No Brokers
	 	 	19	 
	Section 4.7 Seller Representations
	 	 	19	 
	Section 4.8 Condition of Transferred Assets
	 	 	19	 
	 
	 	 	 	 
	ARTICLE V Representations and Warranties of Seller
	 	 	20	 
	 
	 	 	 	 
	Section 5.1 Organization, Authority and Qualification of Seller
	 	 	20	 
	Section 5.2 Subsidiaries
	 	 	21	 
	Section 5.3 No Conflict
	 	 	21	 
	Section 5.4 M Development Agreement
	 	 	21	 
	Section 5.5 Governmental Consents and Approvals
	 	 	21	 
	Section 5.6 Liabilities
	 	 	21	 
	Section 5.7 Litigation
	 	 	21	 
	Section 5.8 Taxes
	 	 	22	 
	Section 5.9 Intellectual Property
	 	 	22	 
	Section 5.10 Employees; Contractors
	 	 	25	 
	Section 5.11 Compliance with Law
	 	 	25	 
	Section 5.12 Oral Contracts
	 	 	25	 
	Section 5.13 No Brokers
	 	 	26	 
	Section 5.14 No Other Representations or Warranties
	 	 	26	 





Asset Purchase Agreement



 


i









 





	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	ARTICLE VI Covenants
	 	 	26	 
	 
	 	 	 	 
	Section 6.1 Further Assistance
	 	 	26	 
	Section 6.2 Intellectual Property Rights
	 	 	26	 
	Section 6.3 Access to Information
	 	 	27	 
	Section 6.4 Conduct of Business
	 	 	27	 
	Section 6.5 M Development Agreement
	 	 	27	 
	Section 6.6 V Agreement
	 	 	27	 
	 
	 	 	 	 
	ARTICLE VII Confidentiality
	 	 	27	 
	 
	 	 	 	 
	Section 7.1 Confidentiality of Agreement and Public Announcements
	 	 	27	 
	Section 7.2 Trade Secrets
	 	 	29	 
	 
	 	 	 	 
	ARTICLE VIII INDEMNIFICATION
	 	 	30	 
	 
	 	 	 	 
	Section 8.1 Survival
	 	 	30	 
	Section 8.2 Indemnification by Seller
	 	 	30	 
	Section 8.3 Limitations on Indemnification
	 	 	30	 
	Section 8.4 Claims
	 	 	32	 
	Section 8.5 Defense of Actions
	 	 	32	 
	Section 8.6 Mitigation
	 	 	32	 
	Section 8.7 Exclusive Remedy
	 	 	32	 
	 
	 	 	 	 
	ARTICLE IX Termination
	 	 	33	 
	 
	 	 	 	 
	Section 9.1 Termination
	 	 	33	 
	Section 9.2 Effect of Termination
	 	 	33	 
	 
	 	 	 	 
	ARTICLE X General
	 	 	34	 
	 
	 	 	 	 
	Section 10.1 Resolution of Conflicts
	 	 	34	 
	Section 10.2 Terms Generally
	 	 	35	 
	Section 10.3 Notices
	 	 	35	 
	Section 10.4 Severability
	 	 	36	 
	Section 10.5 Entire Agreement
	 	 	36	 
	Section 10.6 Assignment
	 	 	36	 
	Section 10.7 No Third Party Beneficiaries
	 	 	36	 
	Section 10.8 Amendment
	 	 	36	 
	Section 10.9 Governing Law; Waiver of Jury Trial
	 	 	37	 
	Section 10.10 Waiver
	 	 	37	 
	Section 10.11 Specific Performance
	 	 	37	 
	Section 10.12 Counterparts and Facsimile Signature
	 	 	37	 
	Section 10.13 Headings
	 	 	37	 
	Section 10.14 Construction
	 	 	37	 
	Section 10.15 Update Disclosure Schedule
	 	 	38	 
	Section 10.16 Expenses
	 	 	38	 






			
	 	 	 
	Asset Purchase Agreement
	 	Confidential







 


ii









 







EXHIBITS




	 	 	 	 	 
	Exhibit A

	 	—
	 	Transferred Assets
	Exhibit B

	 	—
	 	Intellectual Property License Agreement
	Exhibit C

	 	—
	 	Form of Assignment and Assumption Agreement
	Exhibit D

	 	—
	 	Form of Bill of Sale
	Exhibit E

	 	—
	 	Disclosure Schedule
	Exhibit F

	 	—
	 	Knowledge of Seller
	Exhibit G

	 	—
	 	M Amendment
	Exhibit H

	 	—
	 	Acceptance and Delivery Criteria
	Exhibit I

	 	—
	 	Knowledge of Buyer
	Exhibit J

	 	—
	 	Additional Definitions






Asset Purchase Agreement



 


i









 







ASSET PURCHASE AGREEMENT




THIS ASSET PURCHASE AGREEMENT (this “Agreement”), is made and entered into as of
February 9, 2011, by and among Juniper Networks, Inc., a Delaware corporation (“Buyer”) and
Opnext Subsystems, Inc. a Delaware corporation (“Seller”). Buyer and Seller, may be
referred to herein individually as a “Party,” and collectively as the “Parties”.



RECITALS




A. WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, all of
the Transferred Assets, on the terms and subject to the conditions set forth herein (the
“Transaction”); and



B. WHEREAS, Seller desires to grant to Buyer and Buyer wishes to receive certain licenses to
Seller’s intellectual property in connection with the purchase of the Transferred Assets; and



C. WHEREAS, Buyer desires to grant to Seller and Seller wishes to receive that certain license
to Buyer’s intellectual property in connection with the purchase of the Transferred Assets; and



NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement, and for
good and valuable consideration the Parties, intending to be legally bound, hereby agree as
follows:



ARTICLE I




DEFINITIONS 




“Action” means any claim, action, suit, arbitration, proceeding, litigation or
investigation by or before any Governmental Entity.



“Additional Assets Acceptance Criteria” means the specific criteria for acceptance
relating to the Additional Transferred Assets set forth in Exhibit H.



“Additional Assumed Liabilities” has the meaning set forth in Section 2.3(b).



“Additional Closing” has the meaning set forth in Section 2.4(a)(ii).



“Additional Closing Date” has the meaning set forth in Section 2.4(a)(ii).



“Additional Closing Schedule Supplement” has the meaning set forth in Section
10.15.



“Additional Payment” has the meaning set forth in Section 2.4(b)(ii).



“Additional Licensed Assets” means the Licensed Assets licensed to Buyer pursuant to
the Intellectual Property License Agreement (but excluding the Initial Licensed Assets).



Asset Purchase Agreement



 


1









 





“Additional Transferred Assets” means all of the right, title and interest in the
assets set forth in Exhibit A that are identified as “Additional Transferred Assets,” and
all Intellectual Property included or embodied therein, but excluding Patents, Trade Secrets and
Trademarks included or embodied in such assets, and excluding, for the avoidance of doubt, any
Excluded Assets.



“Affiliate” means with respect to any Person, any other Person, whether or not
existing on the date hereof, controlling, controlled by or under common control with such first
Person. The term “control” (including with correlative meaning the terms “controlled by” and
“under common control with”), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or otherwise.



“Agreement” has the meaning set forth in the Preamble.



“Allocation” has the meaning set forth in Section 2.4(f)(i).



“Ancillary Agreements” means: (i) the Bill of Sale; (ii) assignments of the
Transferred Assets in forms acceptable to Buyer and otherwise suitable for filing in all relevant
jurisdictions and governmental offices; (iii) the Assignment and Assumption Agreement; (iv) the
Intellectual Property License Agreement; and (v) such other good and sufficient instruments of
conveyance, assignment and transfer, in form and substance reasonably acceptable to both of the
Parties, as shall be necessary to vest in Buyer good and valid title in and to the Transferred
Assets and for the assumption of the Assumed Liabilities by Buyer.



“Assignment and Assumption Agreement” means an Assignment and Assumption Agreement
substantially in the form of Exhibit C hereto.



“Assumed Liabilities” has the meaning set forth in Section 2.3(b).



“Basket” has the meaning set forth in Section 8.3(c).



“Bill of Sale” means a General Assignment and Bill of Sale substantially in the form
of Exhibit D hereto.



“Business Day” means each day that is not a Saturday, Sunday or other day on which
both Buyer and Seller are closed for business or banking institutions located in San Francisco,
California are authorized or obligated by law, regulation or executive order to close.



“Buyer” has the meaning set forth in the Preamble.



“Buyer’s Confidential Information” has the meaning set forth in Section
7.1(a).



“Buyer Indemnitees” has the meaning set forth in Section 8.2.



“Claim” has the meaning set forth in Section 8.4.



“Code” means the Internal Revenue Code of 1986, as amended.



Asset Purchase Agreement



 


2









 





“Consent” means any consent, waiver, approval, permit, ratification, order or other
authorization of, or registration, declaration or filing with, any Person.



“Consulting Services” has the meaning set forth in Section 2.5.



“Consulting Services Terms” has the meaning set forth in Section 2.5.



“Contract” means any written note, bond, mortgage, indenture, lease, contract,
covenant, plan, insurance policy, undertaking or other agreement, instrument, arrangement,
obligation, understanding or commitment, permit, concession, franchise or license, including any
amendment or modifications made thereto.



“Copyrights” means all means all copyrights in any original works of authorship fixed
in any tangible medium of expression as set forth in 17 U.S.C. Section 101 et. seq., and any
corresponding non-U.S. copyrights under the laws of any jurisdiction, in each case, whether
registered or unregistered, whether or not published, and any applications for registration
thereof, including copyrights in databases, data collections and Software; any rights in mask
works, as defined in 17 U.S.C. Section 901, whether registered or unregistered, including
applications for registration thereof, and any non-U.S. rights in semiconductor topologies under
the laws of any jurisdiction, whether registered or unregistered, including applications for
registration thereof; and any similar, corresponding or equivalent rights to any of the foregoing
anywhere in the world and the right to sue and recover for past, present, and future infringements
and other violations of any of the foregoing, and all other rights accruing thereunder or
pertaining thereto throughout the world, including moral rights under the laws of any jurisdiction.



“De Minimis Threshold” has the meaning set forth in Section 8.3(d).



“Disclosure Schedule” means the Disclosure Schedule supplied by Seller to Buyer, dated
as of the date hereof and attached hereto as Exhibit E.



“Encumbrance” means any security interest, pledge, mortgage, lien (including, without
limitation, environmental and Tax liens (other than liens for Taxes which are not yet due and
payable)), charge, encumbrance, adverse claim, or any restriction on use or transfer.



“Expected Completion Date” shall mean April 15, 2011.



“Excluded Assets” means (i) all assets other than the Transferred Assets, (ii) any
Intellectual Property or other assets embodied in the Transferred Assets that are owned by a third
party, including without limitation the third-party Intellectual Property and assets listed in
Section 5.9(d) of the Disclosure Schedule, and (iii) all Patents, Trade Secrets and
Trademarks included or embodied in any of the Transferred Assets, including the sole right to seek
patent protection of any Trade Secrets or inventions included in or embodied in the any of the
Transferred Assets.



“Excluded Liabilities” has the meaning set forth in Section 2.3(c).



Asset Purchase Agreement



 


3









 





“Exclusively Licensed Trade Secrets” means the Trade Secrets included in the Licensed
Assets that are exclusively licensed to Buyer pursuant to the Intellectual Property License
Agreement.



“Governing Documents” means Seller’s certificate of Incorporation and Bylaws.



“Governmental Entity” means any federal, state, county, national, local or other
foreign court, administrative, regulatory or other governmental authority, agency, commission,
instrumentality or arbitral tribunal.



“Indemnified Party” has the meaning set forth in Section 8.4.



“Indemnity Reduction Amounts” has the meaning set forth in Section 8.3(g).



“Initial Assumed Liabilities” has the meaning set forth in Section 2.3(a).



“Initial Closing” has the meaning set forth in Section 2.4(a)(i).



“Initial Payment” has the meaning set forth in Section 2.4(b)(i).



“Initial Licensed Assets” means the Licensed Assets licensed to Buyer pursuant to the
Intellectual Property License Agreement as of the Initial Closing.



“Initial Transferred Assets” means all of the right, title and interest in the assets
set forth in Exhibit A that are identified as “Initial Transferred Assets”, and all
Intellectual Property included or embodied therein, but excluding Patents, Trade Secrets and
Trademarks included or embodied in such assets, and excluding, for the avoidance of doubt, any
Excluded Assets.



“Intellectual Property” means any or all of the following: (i) all Patents; (ii) all
Copyrights; (iii) all mask works, and all registrations and applications thereof; (iv) all
industrial designs, and registrations and applications thereof; (v) all Trade Secrets; (vi) all
Trademarks; and (vii) the right to sue and recover for past, present, and future infringements,
misappropriations, dilutions, and other violations of any of the foregoing, and all other rights
accruing thereunder or pertaining thereto throughout the world.



“Intellectual Property License Agreement” means an Intellectual Property License
Agreement substantially in the form of Exhibit B hereto.



“Knowledge of Seller” means those facts or circumstances actually known by the
individuals set forth on Exhibit F, or any facts or circumstances that would reasonably be expected
be known after reasonable due inquiry by a person holding a comparable office or job or with
comparable experience, abilities and responsibilities of the individuals set forth on Exhibit F.



“Law” means any applicable law, statute, code, rule, regulation order or decree of any
Governmental Entity.



Asset Purchase Agreement



 


4









 





“Liability” means any liability, indebtedness, duty, expense, claim, deficiency,
guaranty, endorsement or other obligation of any type (whether known or unknown, whether asserted
or
unasserted, whether matured or unmatured, whether absolute, fixed or contingent, whether
certain or uncertain, whether accrued or unaccrued, whether liquidated or unliquidated, whether
incurred or consequential, whether determined, determinable or otherwise, whether due or to become
due and whether required to be included on a balance sheet under GAAP or not), including accounts
payable, royalties payable, reserves, accrued bonuses, accrued vacation, employee expenses
obligations and liabilities for Taxes.



“Licensed Assets” means the Intellectual Property licensed to Buyer pursuant to the
Intellectual Property License Agreement.



“Loss or Losses” means any actual liability, indebtedness, claim, losses, damages,
Tax, fines, costs, awards, judgments, penalties, charges or expenses incurred or suffered (and, if
applicable reasonable attorneys’ fees associated therewith), but shall not include any incidental,
consequential, special or punitive damages or lost profits (unless and to the extent, in each case,
any such damages are components of actual Losses suffered by a third party claimant against Buyer).



“M Amendment” has the meaning set forth in Item 1 on Exhibit J.



“M Development Agreement” has the meaning set forth in Item 1 on Exhibit J.



“Open Source Code” has the meaning set forth in Section 5.9(j).



“Party” or “Parties” has the meaning set forth in the Preamble.



“Patents” means all national and multinational statutory invention registrations,
patents, utility models, design patents, design registrations, certificates of invention and other
governmental grants for the protection of inventions or industrial designs anywhere in the world,
patent applications, provisional patent applications, including all reissues, divisions,
extensions, substitutions, continuations, continuations-in-part, and reexaminations thereof, the
right to sue and recover for past, present, and future infringements and other violations of any of
the foregoing, and all other rights accruing thereunder or pertaining thereto throughout the world.



“Person” means an individual, partnership, corporation, limited liability company,
association, joint venture, trust, unincorporated organization or other entity, including a
Governmental Entity.



“Purchase Price” has the meaning set forth in Section 2.4(b).



“Registered IP” means all United States, international and foreign: (i) patents and
patent applications (including provisional applications); (ii) registered trademarks and service
marks, applications to register trademarks and service marks (including intent-to-use
applications); (iii) registered copyrights and applications for copyright registration; and (iv)
any other Intellectual Property rights that are subject of an application, certificate, filing,
registration or other document issued, filed with, or recorded by any state, government or other
public legal authority.


Asset Purchase Agreement



 


5









 





“Representatives” with respect to a particular Person, means any director, officer,
manager, partner, employee, agent, consultant, advisor, accountant, financial advisor, investment
banker, legal counsel or other representative of that Person.



“SEC” has the meaning set forth in Section 7.1(a).



“Seller” has the meaning set forth in the Preamble.



“Seller’s Confidential Information” has the meaning set forth in Section
7.1(b).



“Seller Personnel” means any current or former employee, agent, consultant, contractor
or director of Seller or any of its Subsidiaries.



“Simulation Software” has the meaning set forth in Item 2 on Exhibit J.



“Software” means any and all computer software and code, including assemblers,
applets, compilers, source code, object code, data (including image and sound data), design tools
and user interfaces, in any form or format, however fixed. Software includes source code listings
and related documentation.



“Subsidiary” of a Person means with respect to such Person, any other corporation,
limited liability company, general or limited partnership, unincorporated association or other
business entity of which (a) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly,
by such Person, or one or more of the other Subsidiaries of such Person or a combination thereof,
or (b) if a limited liability company, general or limited partnership, unincorporated association
or other business entity, a majority of the partnership, unincorporated association or other
business entity, a majority of the partnership or other similar ownership interest thereof is at
the time owned or controlled, directly or indirectly, by such Person, or one or more Subsidiaries
of such Person or a combination thereof.



“Tax” and “Taxes” means (i) any and all U.S. federal, state, local and
non-U.S. taxes, assessments, and other governmental charges, customs, duties, impositions and
liabilities, including, without limitation, taxes based upon or measured by gross receipts, income,
profits, sales, use and occupation, and value-added, goods and services, ad valorem, transfer,
capital, capital gains, alternative net worth, franchise, withholding, payroll, recapture,
employment, unemployment insurance, social security, disability, workers’ compensation, excise,
personal property and real property taxes together with all interest, penalties and additions
imposed with respect to such amounts; (ii) any liability for the payment of any amounts of the type
described in clause (i) above as a result of being a member of an affiliated, consolidated,
combined or unitary group for any period (including, without limitation, any liability under
Treasury Regulation Section 1.1502-6 or any comparable provision of foreign, state or local law;
and (iii) any liability for the payment of any amounts of the type described in clause (i) or (ii)
above as a result of any express or implied obligation to indemnify any other Person or as a result
of any obligations under any agreements or arrangements with any other Person or entity with
respect to such amounts and including any Liability for Taxes of a predecessor.



Asset Purchase Agreement



 


6









 





“Tax Return” means any return, estimate, declaration, information statement report,
form, claim for refund or filing relating to any Tax, including any schedule or attachment thereto,
and including any amendment thereof, filed or required to be filed with any Governmental Entity.



“Trade Secrets” means all trade secrets (including all trade secrets in inventions
(whether patentable or not), proprietary information, know how, technology, databases and data
collections (including knowledge databases, customer lists and customer databases)), the right to
sue and recover for past, present, and future infringements, misappropriations, and other
violations of any of the foregoing, and all other rights accruing thereunder or pertaining thereto
throughout the world.



“Trademarks” means all trademarks, service marks, trade dress, logos, trade names,
corporate names, business names, domain names, whether or not registered, including all common law
rights therein and all registrations, applications, and renewals thereof, all goodwill associated
therewith, the right to sue and recover for past, present, and future infringements, dilutions, and
other violations of any of the foregoing, and all other rights accruing thereunder or pertaining
thereto throughout the world.



“Transaction” has the meaning set forth in the Recitals.



“Transaction Agreements” means this Agreement, the Ancillary Agreements, and each
other agreement, schedule, exhibit, certificate or other document delivered in connection with this
Agreement.



“Transferred Assets” means, collectively, the Initial Transferred Assets and the
Additional Transferred Assets.



“Transferred Employees” has the meaning set forth in Section 2.4(d)(i).



“Transferred Registered IPR” has the meaning set forth in Section 5.9(a).



“Transfer Tax” means any sales, use, value-added, goods and services, gross receipts,
excise, registration, stamp duty, transfer, documentary or other similar Taxes that may be payable
in connection with the sale or purchase of the Transferred Assets.



ARTICLE II




PURCHASE AND SALE OF ASSETS 




Section 2.1 Transfer of Assets.



(a) Transfer of Initial Transferred Assets. Subject to Section 2.1(c) below
and the terms and conditions set forth in this Agreement, contemporaneously with the execution and
delivery of this Agreement, Seller hereby sells, assigns, transfers, conveys and delivers to Buyer
good and valid title (free and clear of all Encumbrances), and Buyer hereby purchases, acquires and
accepts from Seller all of Seller’s right, title and interest in and to all of the Initial
Transferred Assets.



Asset Purchase Agreement



 


7









 





(b) Transfer of Additional Transferred Assets. Effective as of, and contingent upon,
the Additional Closing, and subject to Section 2.1(c) below and the terms and conditions
set forth in this Agreement, at the Additional Closing, Seller hereby sells, assigns, transfers,
conveys and delivers to Buyer good and valid title (free and clear of all Encumbrances), and Buyer
hereby purchases, acquires and accepts from Seller all of Seller’s rights, title and interest in
and to all of the Additional Transferred Assets.



(c) Excluded Assets. Notwithstanding anything to the contrary herein, Seller is not
selling, assigning, transferring, conveying or delivering to Buyer, and Buyer is not purchasing or
acquiring from Seller any Excluded Assets.



Section 2.2 Delivery of Transferred Assets.



(a) Delivery of Initial Transferred Assets. Subject to the terms and conditions set
forth in this Agreement, contemporaneously with the execution and delivery of this Agreement,
Seller shall, in the manner and form and to the locations, specified in Exhibit H, deliver
to Buyer all of the Initial Transferred Assets. Without limiting the foregoing, Seller shall
deliver to Buyer, contemporaneously with the execution and delivery of this Agreement, solely by
electronic transmission in the manner specified in Exhibit H, all Initial Transferred
Assets contained in electronic form, including source code, object code and source documentation.



(b) Delivery of Additional Transferred Assets. Subject to the terms and conditions
set forth in this Agreement, at the Additional Closing, Seller shall, in the manner and form, and
to the locations, specified in Exhibit H, deliver to Buyer all of the Additional
Transferred Assets. Without limiting the foregoing, Seller shall deliver to Buyer, at the
Additional Closing, solely by electronic transmission in the manner specified in Exhibit H,
all Additional Transferred Assets contained in electronic form, including source code, object code
and source documentation.



Section 2.3 Liabilities.



(a) Assumption of Initial Assumed Liabilities. Subject to the terms and conditions
set forth in this Agreement, contemporaneously with the execution and delivery of this Agreement,
Seller hereby assigns and transfers to Buyer, and Buyer hereby assumes and agrees to pay, perform
and discharge when due the following Liabilities (the “Initial Assumed Liabilities”):




(i) All Liabilities to the extent arising out of or related to the ownership, use and
operation of the Initial Transferred Assets following the execution and delivery of this
Agreement.



(b) Assumption of Additional Assumed Liabilities. Subject to the terms and conditions
set forth in this Agreement, effective as of and contingent upon the Additional Closing, Seller
hereby assigns and transfers to Buyer, and Buyer hereby assumes and agrees to pay, perform and
discharge when due the following Liabilities (the “Additional Assumed Liabilities” and,
together with the Initial Assumed Liabilities, the “Assumed Liabilities”):



Asset Purchase Agreement



 


8









 






(i) All Liabilities to the extent arising out of or related to the ownership, use and
operation of the Additional Transferred Assets following the Additional Closing; and




(ii) All Liabilities related to employment, labor, compensation, and benefits in
respect of or relating to the Transferred Employees to the extent arising out of or related
to the employment of such Transferred Employees by Buyer.



(c) No Other Liabilities. Notwithstanding anything to the contrary in this Agreement,
except for the Assumed Liabilities, Buyer shall not assume and shall not be deemed to have assumed
or be liable or responsible for Liabilities of Seller or any Affiliate of the Seller (the
“Excluded Liabilities”) and Seller shall remain responsible for such Excluded Liabilities.



Section 2.4 Closings, Purchase Price; Closing Deliveries; Releases.



(a) Closings.




(i) The closing of the transactions contemplated hereunder with respect to the Initial
Transferred Assets (the “Initial Closing”) shall take place at the offices of
Juniper Networks, Inc. at 1194 N. Mathilda Ave., Sunnyvale, CA 94089 contemporaneously with
the execution and delivery of this Agreement.




(ii) Subject to the terms and provisions set forth in this Agreement, and upon the
satisfaction or, if and when possible, waiver of all of the conditions and deliveries set
forth in Section 2.4(e) (other than those conditions that by their nature are to be
satisfied at the Additional Closing, but subject to the satisfaction or waiver of those
conditions), the closing of the transaction contemplated hereunder with respect to the
Additional Transferred Assets (the “Additional Closing”) shall take place at the
offices of Juniper Networks, Inc. at 1194 N. Mathilda Ave., Sunnyvale, CA 94089 at 10:00
a.m. local time on the date on which the Additional Transferred Assets are completed in
accordance with the Additional Assets Acceptance Criteria which shall be no later than the
Expected Completion Date, subject and pursuant to Section 2.6, or on such other date
and/or at such other time and or/place as the Parties may mutually determine (such date, the
“Additional Closing Date”).



(b) Purchase Price. In consideration of the sale, assignment and transfer of the
Transferred Assets, and subject to the terms and conditions set forth in this Agreement, Buyer
shall (x) pay to Seller an aggregate purchase price of US $26 million in cash (the “Purchase
Price”) and (y) assume the Assumed Liabilities. Buyer shall deliver to Seller the Purchase
Price in two tranches:




(i) US $23.5 million contemporaneously with the Initial Closing (the “Initial
Payment”); and




(ii) US $2.5 million contemporaneously with the Additional Closing (the “Additional
Payment”).



(c) Initial Closing Deliveries by Buyer and Seller.



Asset Purchase Agreement



 


9









 






(i) Initial Closing Deliveries by Buyer. Contemporaneously with the executions
and delivery of this Agreement, Buyer shall:




(A) Deliver to Seller the Initial Payment by wire transfer of immediately available
funds to one or more accounts designated by Seller in accordance with the wire transfer
instructions set forth in Exhibit H;




(B) Execute and deliver to Seller each of the Ancillary Agreements relating to the
Initial Transferred Assets, to which it is a party; and




(C) Execute and deliver to Seller such other instruments as shall be reasonably
requested by Seller, in form and substance mutually acceptable to Buyer and Seller.




(ii) Initial Closing Deliveries by Seller. Contemporaneously with the
executions and delivery of this Agreement, Seller shall:




(A) Deliver to Buyer all of the Initial Transferred Assets electronically as detailed
in Exhibit H;




(B) Deliver to Buyer a duly executed copy of the M Amendment;




(C) Deliver to Buyer evidence reasonably satisfactory to Buyer of the receipt of all
the Consents identified on Schedule 2.4(c)(ii)(C);




(D) Deliver to Buyer a certificate executed by the Secretary of Seller certifying that
attached thereto is (A) a true and complete copy of the Governing Documents, (B) true and
complete copies of resolutions of Seller’s directors, authorizing the execution, delivery
and performance of this Agreement and the other Transaction Agreements and the Transactions,
which resolutions have not been modified, rescinded or revoked, and (C) specimen signatures
of the officers of Seller authorized to sign this Agreement and the other Transaction
Agreements;




(E) Execute and deliver each of the Ancillary Agreements relating to the Initial
Transferred Asset to which it is to be a party; and




(F) Execute and deliver to Buyer such other instruments as shall be reasonably
requested by Buyer, in form and substance mutually acceptable to Buyer and Seller.



(d) Release by Buyer of Non-Solicit and No-Hire Restriction. Notwithstanding any
other agreement to the contrary (but subject to Buyer’s options in Section 2.6(b), the
terms of which shall prevail, in the event such options are exercised), Seller hereby agrees that
as of the Initial Closing:




(i) Nothing will prevent Buyer from soliciting and hiring Eli Simpson and Simon Lin
with a start date on or after the date of the Additional Closing and Bo
Zhang with a start date thirty (30) days thereafter (collectively, the “Transferred
Employees”);


Asset Purchase Agreement



 


10









 






(ii) The Transferred Employees are released by Seller from any contractual prohibition
on such Transferred Employees being solicited or hired by Buyer for employment beginning on
or after the date of the Additional Closing (except 30 days later in the case of Bo Zhang);
provided, that, for the avoidance of doubt, such employment does not begin prior to
such date; and




(iii) Buyer is released by Seller from any contractual prohibition on the Transferred
Employees being solicited or hired by Buyer for employment beginning on or after the date of
the Additional Closing (except 30 days later in the case of Bo Zhang); provided,
that, for the avoidance of doubt, such employment does not begin prior to such date.



(e) Additional Closing Conditions & Deliveries




(i) Additional Closing Conditions Precedent to Obligations of Seller. The
obligation of Seller to consummate the transactions contemplated by this Agreement to take
place at the Additional Closing is subject to the satisfaction (or, where legally
permissible, waiver by Seller)of the following, at or prior to the Additional Closing:




(A) No Order. No Governmental Entity of competent jurisdiction shall have
enacted, issued, promulgated, enforced or entered into any Law which is in effect on the
Additional Closing Date which prohibits, enjoins or restrains the consummation of the
Transactions contemplated by this Agreement to occur.




(B) Additional Payment. Buyer shall deliver to Seller, contemporaneously with
the Additional Closing, the Additional Payment by wire transfer of immediately available
funds to one or more accounts designated by Seller in accordance with the wire transfer
instructions set forth in Exhibit H or pursuant to any other wire instructions
delivered in writing from Seller to Buyer prior to the Additional Closing.




(C) Representations and Warranties. The representations and warranties of
Buyer contained in this Agreement, which representations and warranties shall be deemed for
purposes of this subsection not to include any qualifications or limitations with respect to
material, materiality or material adverse effect, shall be true and correct in all material
respects on the date of this Agreement and on the Additional Closing Date (except to the
extent such representations and warranties by their terms speak as of an earlier date, in
which case they shall be true and correct in all material respects as of the date of this
Agreement and as of such other date). Buyer shall have delivered to Seller a certificate,
dated the Additional Closing Date, signed by an authorized officer of Buyer, confirming the
matters set forth in the foregoing.




(D) Covenants. Buyer shall have performed or complied in all material respects
with all obligations and covenants required by this Agreement to be performed or complied
with by Buyer at or prior to the Additional Closing. Buyer shall
have delivered to Seller a certificate, dated the Additional Closing Date, signed by an
authorized officer of Buyer, confirming the matters set forth in the foregoing clause.



Asset Purchase Agreement



 


11









 






(E) Litigation. There shall be no action, suit, claim, order, injunction or
proceeding of any nature threatened in writing or pending, against either of the Parties,
their respective Affiliates or the Additional Transferred Assets which would prohibit
consummation of the Transactions contemplated hereby.




(F) Ancillary Agreements. Buyer shall have executed and delivered to Seller
each of the Ancillary Agreements relating to the Additional Transferred Asset, to which it
is a party.




(G) Other Agreements. Buyer shall have executed and delivered to Seller such
other instruments as shall be reasonably requested by Seller, in form and substance mutually
acceptable to Buyer and Seller.




(ii) Additional Closing Conditions Precedent to Obligations of Buyer. The
obligation of Buyer to consummate the transactions contemplated by this Agreement to take
place at the Additional Closing is subject to the satisfaction (or, where legally
permissible, waived by Buyer) of the following, at or prior to the Additional Closing:




(A) No Order. No Governmental Entity of competent jurisdiction shall have
enacted, issued, promulgated, enforced or entered into any Law which is in effect on the
Additional Closing Date which prohibits, enjoins or restrains the consummation of the
Transactions contemplated by this Agreement to occur.




(B) Additional Assets Acceptance Criteria. Subject to Section 2.6, the
Additional Transferred Assets shall be completed in accordance with the Additional Assets
Acceptance Criteria.




(C) Delivery of Additional Transferred Assets. Seller shall deliver to Buyer,
contemporaneously with the Additional Closing, all of the Additional Transferred Assets
electronically as detailed in Exhibit H.




(D) Representations and Warranties. The representations and warranties of
Seller contained in this Agreement, which representations and warranties shall be deemed for
purposes of this subsection not to include any qualifications or limitations with respect to
material, materiality or material adverse effect, shall be true and correct in all material
respects on the date of this Agreement and, solely to the extent such representations and
warranties relate to the Additional Transferred Assets or the Additional Licensed Assets, on
the Additional Closing Date (except to the extent such representations and warranties by
their terms speak as of an earlier date, in which case they shall be true and correct in all
material respects as of the date of this Agreement and, solely to the extent such
representations and warranties relate to the Additional Transferred Assets, as of such other
date). Seller shall have delivered to Buyer a certificate, dated the Additional Closing
Date, signed by an authorized officer of Seller, confirming the matters set forth in the
foregoing clause.


Asset Purchase Agreement



 


12









 






(E) Covenants. Seller shall have performed or complied in all material
respects with all obligations and covenants required by this Agreement to be performed or
complied with by Seller at or prior to the Additional Closing. Seller shall have delivered
to Buyer a certificate, dated the Additional Closing Date, signed by an authorized officer
of Seller, confirming the matters set forth in the foregoing clause.




(F) Ancillary Agreements. Seller shall execute and deliver to Buyer each of
the Ancillary Agreements relating to the Additional Transferred Asset, to which it is a
party.




(G) Consents. Seller shall have delivered to Buyer evidence reasonably
satisfactory to Buyer of the receipt of all the Consents identified on Schedule
2.4(e)(ii)(G).




(H) Litigation. There shall be no action, suit, claim, order, injunction or
proceeding of any nature threatened in writing or pending, against either of the Parties,
their respective Affiliates or the Additional Transferred Assets which would prohibit
consummation of the Transactions contemplated hereby.




(I) Corporate Approval. Seller shall have delivered a certificate executed by
the Secretary of Seller certifying that attached thereto is (A) a true and complete copy of
the Seller’s Certificate of Incorporation and Bylaws, (B) true and complete copies of
resolutions of Seller’s directors, authorizing the execution, delivery and performance of
this Agreement and the other Transaction Agreements and the Transactions, which resolutions
have not been modified, rescinded or revoked, and (C) specimen signatures of the officers of
Seller authorized to sign this Agreement and the other Transaction Agreements.




(J) Deliver to Buyer executed and notarized assignments of all transferred Copyrights
to the Additional Transferred Assets.




(K) Other Agreements. Seller shall have executed and delivered to Buyer such
other instruments as shall be reasonably requested by Buyer, in form and substance mutually
acceptable to Buyer and Seller.



(f) Tax Matters.




(i) Allocation of Purchase Price. The Parties hereto intend that the purchase
be treated as a taxable transaction for federal and state income tax purposes. Within one
hundred and twenty (120) days after the date of this Agreement, Buyer shall provide Seller,
an allocation among the Initial Transferred Assets of the Initial Payment (plus the amount
of the Assumed Liabilities to the extent properly taken into account under the Code)
pursuant to Section 1060 of the Code and the regulations promulgated thereunder, and within
one hundred and twenty (120) days after the Additional Closing Date, Buyer shall provide
Seller, an allocation among the Additional Transferred Assets of the Additional Payment
(plus the amount of the related Assumed Liabilities to the extent properly taken into
account under the Code pursuant to Section 1060 of the Code and the regulations promulgated
thereunder (collectively, the “Allocation”). Buyer and
Seller shall work in good faith to resolve any disputes relating the Allocation. If
Buyer and Seller agree to the Allocation, then the Allocation shall be conclusive and
binding upon Buyer and Seller for all applicable tax purposes and, in such event, the
Parties agree that all Tax Returns (including IRS Form 8594) shall be prepared in a manner
consistent with (and the Parties shall not otherwise take a position on a Tax Return, any
refund claim, in audits or otherwise that is inconsistent with) the Allocation unless
required by the IRS or any other applicable taxing authority.



Asset Purchase Agreement



 


13









 







(ii) Withholding and Transfer Taxes. The Buyer shall be entitled to withhold
from the Purchase Price any withholding Taxes required to be withheld under the Code or any
other applicable Tax Law, provided that such Taxes are timely paid over to the appropriate
Governmental Entity. Seller shall be responsible for and shall pay when due any Transfer
Taxes. The Parties hereto shall cooperate, to the extent reasonably requested and permitted
by applicable law, in minimizing any such Transfer Taxes, including but not limited to the
transfer by remote electronic transmission of all Transferred Assets capable of being so
transmitted. The Party required by law to file a Tax Return with respect to such Transfer
Taxes shall do so within the time period prescribed by law, and Seller shall promptly remit
to Buyer the amount of any Transfer Taxes so payable by Buyer upon receipt of (x) notice
that such Transfer Taxes are payable and (y) a copy of the relevant Tax Return.



(iii) Responsibility for Taxes.




(A) Seller shall be responsible for the preparation and filing of all Tax Returns of
Seller (including Tax Returns required to be filed after the date of this Agreement) to the
extent such Tax Returns include or relate to Seller’s use or ownership of the Initial
Transferred Assets on or prior to the date of this Agreement or the Additional Transferred
Assets on or prior to the Additional Closing Date. Seller’s Tax Returns to the extent they
relate to the Transferred Assets shall be true, complete and correct and prepared in
accordance with applicable law. Seller shall be responsible for and make all payments of
Taxes shown to be due on such Tax Returns to the extent they relate to (x) Seller’s use or
ownership of the Initial Transferred Assets on or prior to the date of this Agreement or (y)
Seller’s use or ownership of the Additional Transferred Assets on or prior to the Additional
Closing Date.




(B) Buyer shall be responsible for the preparation and filing of all Tax Returns it is
required to file with respect to Buyer’s ownership or use of the Initial Transferred Assets
commencing after the date of this Agreement and Buyer’s ownership or use of the Additional
Transferred Assets after the Additional Closing Date. Buyer’s Tax Returns, to the extent
they relate to the Transferred Assets, shall be true, complete and correct and prepared in
accordance with applicable law in all respects. Buyer will make all payments of Taxes shown
to be due on such Tax Returns to the extent they relate to (x) Buyer’s use or ownership of
the Initial Transferred Assets after the date of this Agreement or (y) Buyer’s use or
ownership of the Additional Transferred Assets after the Additional Closing Date.


Asset Purchase Agreement



 


14









 






(C) Property and similar ad valorem Taxes with respect to the Initial Transferred
Assets for any Tax period that includes the date hereof shall be allocated between Seller
and Buyer pro rata based on the number of days in such Tax period allocable to the portion
of such Tax period ending on the date hereof (which shall be borne by Seller) and the
portion of such Tax period beginning on the day after the date hereof (which portion shall
be borne by Buyer). Property and similar ad valorem Taxes with respect to the Additional
Transferred Assets for any Tax period that includes the Additional Closing Date shall be
allocated between Seller and Buyer pro rata based on the number of days in such Tax period
allocable to the portion of such Tax period ending on the Additional Closing Date (which
shall be borne by Seller) and the portion of such Tax period beginning on the day after the
Additional Closing Date (which portion shall be borne by Buyer).




(iv) Cooperation. To the extent relevant to the Transferred Assets, each Party
shall (A) provide the other with such assistance as may reasonably be required in connection
with the preparation of any Tax Return and the conduct of any audit or other examination by
any taxing authority or in connection with judicial or administrative proceedings relating
to any liability for Taxes and (B) retain and provide the other with all records or other
information that may be relevant to the preparation of any Tax Returns, or the conduct of
any audit or examination, or other proceeding relating to Taxes. Seller shall retain all
documents, including prior years’ Tax Returns, supporting work schedules and other records
or information with respect to all sales, use and employment tax returns and, absent the
receipt by Seller of the relevant tax clearance certificates, shall not destroy or otherwise
dispose of any such records for six (6) years after Initial Closing without the prior
written consent of Buyer.



(g) Expenses. Except as otherwise provided herein, each Party shall be solely
responsible for its own costs and expenses (including those of its Representatives) incurred in
connection with the negotiation and consummation of the Transactions.



(h) No Additional Compensation. Subject to and without limiting any claims or other
remedies of the Seller relating to any breach of any covenant or agreement contained in this
Agreement or the other Transaction Agreements, the Parties agree that Seller shall not be entitled
to any additional compensation under any competent jurisdiction or applicable Law whatsoever under
this Agreement. In the event that under any competent jurisdiction or applicable Law a claim for
such compensation cannot be validly waived or excluded, the Parties agree that the Purchase Price
shall also cover and be deemed to be a fulfillment of such claim.


Asset Purchase Agreement



 


15









 





Section 2.5 Consulting Services Terms. The consulting services terms (“Consulting Services
Terms”) are as follows:



(a) Consultants. If Simon Lin and Bo Zhang of the Transferred Employees become
employed by Buyer (so long as Buyer did not choose Option 3 provided in Section 2.6(b)(iii)
and each individual is willing to be a consultant for Seller, then Buyer shall permit Seller to
engage Simon Lin and Bo Zhang as a consultant to Seller (subject to mutual agreed upon consulting
services agreement and compensation arrangements (which shall be determined based on a pro rata
basis of the compensation provided by Buyer to such individuals) between
Buyer and Seller) for a period of three months following the date of the Additional Closing
(except 30 days later in the case of Bo Zhang), pursuant to which (i) Simon Lin shall provide
on-sight consulting services for eight hour per day every Tuesday and Thursday (or any other two
Business Days which the Parties mutually agree upon) and provide other reasonable assistance to
Seller (to the extent such assistance does not materially interfere with his job performance for
Buyer); provided that he shall not perform (x) in excess of 208 hours in the aggregate of
consulting services for Seller during such three-month period and (y) in excess of 70 hours of
consulting services during any individual month of such three-month period and (ii) Bo Zhang shall
provide on-sight consulting services for eight hour per day every other Thursday (or any Business
Day which the Parties mutually agree upon) and provide other reasonable assistance to Seller (to
the extent such assistance does not materially interfere with his job performance for Buyer);
provided that he shall not perform (x) in excess of 50 hours in the aggregate of consulting
services for Seller during such three-month period and (y) in excess of 25 hours of consulting
services during any individual month of such three-month period (the “Consulting
Services”).



(b) Scope of Consulting Services. The consulting services to be provided by the
Transferred Employees shall include completing any documentation related to, transferring knowledge
and know-how related to and verifying implementation related to such Persons prior work for Seller
(including related to the Transferred Assets, Licensed Assets and Additional Licensed Assets),
including answering questions and providing training to Seller for such individuals’
replacement(s). Any deliverables created as a result of the Consulting Services shall be owned as
follows: (i) to the extent a deliverable would otherwise be deemed an Initial Transferred Asset if
it existed prior to the date of this Agreement or an Additional Transferred Asset if it existed
prior to the Additional Closing Date (i.e., it meets the requirement of Transferred Assets in
Exhibit A), then it will be deemed a Transferred Asset and Buyer will own all right, title
and interest in such deliverable, and all Intellectual Property included or embodied therein, but
excluding Patents, Trade Secrets and Trademarks included or embodied therein, and excluding, for
the avoidance of doubt, any Excluded Assets, all of which Patents, Trade Secrets, Trademarks and
Excluded Assets shall be owned by Seller; and (b) Seller shall own all right, title and interest in
any other deliverables, including any Intellectual Property embodied therein.



Section 2.6 Buyer Options if Additional Transferred Assets Not Accepted by Buyer by Expected
Completion Date.



(a) Seller shall use its commercially reasonable efforts to complete the Additional
Transferred Assets on prior to the Expected Completion Date in accordance with the Additional
Assets Acceptance Criteria. If the Additional Transferred Assets are completed in accordance with
the Additional Assets Acceptance Criteria on or prior to the Expected Completion Date, Buyer agrees
to accept the Additional Transferred Assets within five Business Days following notice from Seller
of such completion; provided that Seller shall provide Buyer with a reasonable opportunity to
inspect the Additional Transferred Assets during such five Business Day period.



Asset Purchase Agreement



 


16









 




(b) If the Additional Transferred Assets are not completed and accepted pursuant to
Section 2.6(a) on or prior to the Expected Completion Date, the Parties agree that Buyer
shall have the option to choose, at Buyer’s sole discretion and as Buyer’s sole remedy, any
of the following options, which choice shall be made on or before the Expected Completion
Date:



(i) Option 1: Buyer may request that Seller provide Buyer with a new estimated
time to complete (using commercially reasonable efforts) the Additional Transferred Assets
which new estimated time to complete must be within three months following the Expected
Completion Date in accordance with the Additional Assets Acceptance Criteria; and, if such
estimated time is acceptable to Buyer, Buyer may extend the Expected Completion Date by such
new estimated time; and, subject to the satisfaction or, when possible, waiver of the
conditions set forth in Sections 2.4(e), the Additional Closing shall take place on
such extended Expected Completion Date and the Additional Transferred Assets shall be
delivered to Buyer (in accordance with Buyer’s delivery requirements set forth in
Exhibit H), regardless of whether or not the Additional Transferred Assets is
completed by such date, and Buyer shall pay the Additional Payment pursuant to Section
2.4(b). Immediately following the Additional Closing, the Transferred Employees may
commence employment with Buyer (except 30 days later in the case of Bo Zhang) provided that
the Consulting Services Terms shall apply; or




(ii) Option 2: Buyer may agree to accept the Additional Transferred Assets in
its incomplete stage; in which case Buyer shall instruct Seller to deliver and Seller shall
deliver (in accordance with Buyer’s delivery requirements set forth in Exhibit H)
the Additional Transferred Assets in their state at the date of election; and, subject to
the satisfaction or, when possible, waiver of the conditions set forth in Sections
2.4(e) and (i), the Additional Closing shall take place and the Additional Transferred
Assets shall be delivered to Buyer (in accordance with Buyer’s delivery requirements set
forth in Exhibit H) and Buyer shall pay the Additional Payment pursuant to
Section 2.4(b). Immediately following the Additional Closing, the Transferred
Employees are permitted to commence employment with Buyer (except 30 days later in the case
of Bo Zhang) and the Consulting Services Terms shall apply; or




(iii) Option 3: Buyer may decline to accept the Additional Transferred Assets
in which case (A) Buyer shall be released from any obligation to pay the Additional Payment
and there shall be no Additional Closing; (B) Seller shall be released from any obligation
to deliver the Additional Transferred Assets; and (C) all representations, warranties,
covenants and other agreement set forth in this Agreement, solely to the extent they relate
to the Additional Transferred Assets, the Additional Licensed Assets or the Additional
Closing, shall terminate and shall have no further force or effect. If Buyer chooses this
Option 3, the Transferred Employees may not commence employment with Buyer until three
(3)months after the Expected Completion Date (except an additional 30 days later in the case
of Bo Zhang); and Consulting Services Terms shall not be applicable or enforceable.



Notwithstanding anything to the contrary, if such Seller’s contractor is no longer under contract
with Seller at any time, the Parties agree that Buyer may solicit such contractor for hire.


Asset Purchase Agreement



 


17









 





ARTICLE III




[RESERVED]




ARTICLE IV




REPRESENTATIONS AND WARRANTIES OF BUYER




Buyer hereby represents and warrants to Seller as follows:



Section 4.1 Organization, Power, Standing. Buyer is a corporation duly organized and validly
existing and in good standing under the laws of the State of Delaware. Buyer has all requisite
corporate power and authority to conduct its business as it has been and is presently being
conducted and to enter into the Transaction Agreements, to carry out its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby. Buyer is duly
authorized and organized to conduct business and is in good standing in each jurisdiction where
such authorization is required to conduct its business as presently conducted by it.



Section 4.2 Due Authorization. The execution and delivery by Buyer of the Transaction Agreements,
the performance by Buyer of its obligations hereunder and thereunder, and the consummation by Buyer
of the transactions contemplated hereby and thereby have been duly and validly authorized by all
necessary corporate action on the part of Buyer. Buyer has the absolute and unrestricted right,
power and authority to execute and deliver the Transaction Agreements and to perform its
obligations. No approval of Buyer’s stockholders or other corporate proceedings of Buyer are
required in connection with the transactions contemplated hereby and thereby. This Agreement has
been duly executed and delivered by Buyer, and each of the other Transaction Agreements, when
executed, will be duly executed and delivered by Buyer, and this Agreement constitutes, and the
other Transaction Agreements when so executed and delivered will constitute, valid and legally
binding obligations of Buyer, enforceable against Buyer in accordance with their respective terms,
except as such enforceability hereof or thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar Laws relating to the enforcement of creditors’ rights
generally and by general principles of equity.



Section 4.3 No Conflict. The execution and delivery of this Agreement do not, and of the other
Transaction Agreements will not, and the consummation of the Transactions will not, (i) violate,
conflict with or result in the breach of any provisions of the Certificate of Incorporation or
Bylaws of Buyer, (ii) result in the imposition of any Encumbrance upon any of the properties or
assets of Buyer, cause the acceleration, cancellation or material modification of any obligation
under, create in any party the right to terminate, constitute a default or breach of, or violate or
conflict with the terms, conditions or provisions of, or result in the loss of a material benefit
under, any Contract to which Buyer is a party or by which it or its assets are bound, (iii)
conflict with or violate any Law applicable to Buyer, or (iv) require on the part of Buyer any
Consent of any Governmental Entity or any other filing with or notice to any Governmental Entity.
No consent, approval or authorization of, or registration or filing with, any Person is required in
connection with the execution or delivery by Buyer of this Agreement or any of the other
Transaction Agreements to which Buyer is or is to become party or the consummation of the
Transactions.


Asset Purchase Agreement



 


18









 





Section 4.4 Litigation. No legal proceeding is pending, or, to the knowledge of Buyer, there is
no proceeding or investigation threatened, against Buyer which, if adversely determined, would
reasonably be expected to prevent or materially interfere with or delay the consummation of the
Transaction. There is no order, judgment or proceeding by a Governmental Entity to which Buyer is
subject that would reasonably be expected to prevent or materially interfere with or delay the
consummation of the Transaction.



Section 4.5 Sufficient Funds. Buyer possesses sufficient funds to make the Initial Payment and
Additional Payment to Seller. Buyer affirms that it is not a condition to Initial Closing,
Additional Closing or any of its other obligations under this Agreement that Buyer obtain financing
for or related to payment thereof.



Section 4.6 No Brokers. Buyer has not entered into or will enter into any contract, agreement,
arrangement or understanding with any broker, finder or similar agent or any Person which will
result in the obligation of the Seller or any of its Affiliates to pay any finder’s fee, brokerage
fees or commission or similar payment in connection with the transactions contemplated by this
Agreement or the Ancillary Agreements.



Section 4.7 Seller Representations. To the knowledge of any of the individuals set forth on
Exhibit I, there have not been and there are no events, state of facts, circumstances,
developments or effects which, individually or in the aggregate, would cause the Seller’s
representations and warranties contained in Article V to be untrue or inaccurate.



Section 4.8 Condition of Transferred Assets. Notwithstanding anything contained in this Agreement
to the contrary, Buyer acknowledges and agrees that Seller is not making any representations or
warranties whatsoever, express or implied, beyond those expressly given by Seller in Article
V (as modified by the Disclosure Schedule), and Buyer acknowledges and agrees that, except for
the representations and warranties contained therein, the Transferred Assets are being transferred
on a “where is” and, as to condition, “as is” basis. Any claims Buyer may have for breach of
representation or warranty shall be based solely on the representations and warranties of Seller
set forth in Article V (as modified by the Disclosure Schedule). Buyer further represents that
neither Seller nor any of its Affiliates or Representatives nor any other Person has made any
representation or warranty, express or implied, as to the accuracy or completeness of any
information regarding the Seller, it Subsidiaries, the Transferred Assets, Licensed Assets or the
transactions contemplated by this Agreement not expressly set forth in this Agreement, and neither
Seller or any of its Affiliates or Representatives or any other Person will have or be subject to
any liability to Buyer or any other Person resulting from the distribution to Buyer or its
Representatives or Buyer’s use of, any such information, including any publications or data room
information provided to Buyer or its Representatives, or any other document or information in any
form provided to Buyer or its Representatives in connection with the sale of the Transferred Assets
and the transactions contemplated hereby. Buyer acknowledges that it has conducted to its
satisfaction, its own independent investigation of the Transferred Assets and has been provided
access and an opportunity to review information in respect of the Transferred Assets requested by
Buyer and, in making its determination to proceed with the transactions contemplated by this
Agreement, Buyer has relied on the results of its own independent investigation.


Asset Purchase Agreement



 


19









 





ARTICLE V




REPRESENTATIONS AND WARRANTIES OF SELLER




Seller represents and warrants to Buyer as of the date of this Agreement and as of the
Additional Closing, subject to the disclosures and exceptions set forth in the Disclosure Schedule,
provided that any disclosure made in any section of the Disclosure Schedule shall only apply to the
section of the Agreement that corresponds to the section of the Disclosure Schedule, except to the
extent that it is reasonably apparent on the face of such disclosure that such disclosure is
relevant to another section of this Agreement as follows (it being understood and agreed, that (a)
as of the Initial Closing, (i) any representations and warranties that are made with respect to any
Transferred Assets are only being made with respect to the Initial Transferred Assets, (ii) any
representations and warranties that are made with respect to any Licensed Assets are only made with
respect to the Initial Licensed Assets, and (iii) any representations and warranties that are made
with respect to any Transaction Agreements are only being made with respect to those Transaction
Agreements that are executed and delivered in connection with the Initial Closing, and (b) as of
the Additional Closing, (i) any representations and warranties that are made with respect to any
Transferred Assets are only being made with respect to the Additional Transferred Assets, (ii) any
representations and warranties that are made with respect to any Licensed Assets are only made with
respect to the Additional Licensed Assets, and (iii) any representations and warranties that are
made with respect to any Transaction Agreements are only being made with respect to those
Transaction Agreements that are executed and delivered in connection with the Additional Closing):



Section 5.1 Organization, Authority and Qualification of Seller. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of Delaware and has
all necessary corporate power and authority to enter into this Agreement and the Transaction
Agreements, to carry out its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the
Transaction Agreements by Seller, the performance by Seller of its obligations hereunder and
thereunder and the consummation by Seller of the transactions contemplated hereby and thereby have
been duly authorized by all requisite action on the part of Seller. No approval of Seller’s
stockholders or other corporate proceedings of Seller or any of its Subsidiaries are required in
connection with the transactions contemplated hereby and thereby, other than has already been
received as of the date of this Agreement. This Agreement has been duly executed and delivered by
Seller, and the other Transaction Agreements will be duly executed and delivered by Seller, and
this Agreement constitutes, and the other Transaction Agreements when so executed and delivered
will constitute, a valid and legally binding obligation of Seller, enforceable against Seller in
accordance with its terms, except as enforceability hereof or thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar Laws relating to the enforcement of
creditors’ rights generally and by general principles of equity.


Asset Purchase Agreement



 


20









 





Section 5.2 Subsidiaries. Each Subsidiary of the Seller is duly and validly existing and in good
standing as a corporation, partnership, limited liability company or other entity, as the case may
be, under the laws of its jurisdiction of organization, except where the failure to be so qualified
or in good standing would not have a material adverse effect on the Transferred Assets or the
Seller’s ability to consummate the transactions contemplated by this Agreement and the other
Transaction Agreements.



Section 5.3 No Conflict. The execution, delivery and performance of this Agreement and the
Ancillary Agreements by Seller does not and will not (a) violate, conflict with or result in the
breach of the Governing Documents, or (b) conflict with or violate any material Law or Governmental
Order applicable to Seller or any of its Subsidiaries or any of the Transferred Assets or Licensed
Assets, or (c) conflict with, result in any breach of, constitute a default (or event which with
the giving of notice or lapse of time, or both, would become a default) under, require any Consent
under, or give to others any rights of termination, amendment, acceleration, suspension, revocation
or cancellation of, or result in the creation of any Encumbrance on any of the Transferred Assets
or Licensed Assets pursuant to, any material note, bond, mortgage or indenture, Contract,
agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to which
Seller or any of its Subsidiaries is a party or by which any of such Transferred Assets or Licensed
Assets are bound or affected. Section 5.3 of the Disclosure Schedule sets forth all
material Consents of third Persons that are required in connection with the consummation of the
transactions contemplated by this Agreement and the other Transaction Agreements.



Section 5.4 M Development Agreement. Seller has provided Buyer with a true and complete copy of
the M Development Agreement and the M Amendment. The M Development Agreement and the M Amendment
are enforceable in accordance with their terms, except as the same may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar Laws relating to the enforcement of
creditors’ rights generally and by general principles of equity. Seller is in material compliance
with the terms of the M Development Agreement and the M Amendment and is not in default thereunder.



Section 5.5 Governmental Consents and Approvals. The execution, delivery and performance of this
Agreement and Ancillary Agreements by Seller does not and will not require any material consent,
approval, authorization or other order of, action by, filing with or notification to, any
Governmental Entity.



Section 5.6 Liabilities. Other than as set forth on Section 5.6 of the Disclosure
Schedules, Seller does not have indebtedness for money borrowed or for the deferred purchase price
of property or services, capital lease obligations, conditional sale, or other title retention
agreements relating to any of the Transferred Assets. Seller is not a guarantor or otherwise
liable for any Liability of any other Person for any matter which relates to or affects the
Transferred Assets.



Section 5.7 Litigation. Seller is not subject to any order, judgment or proceeding by a
Governmental Entity which would reasonably be expected to prevent or materially interfere with or
delay the consummation of the Transaction. No legal proceeding is pending, or, to the Knowledge of
Seller, threatened, against Seller which would reasonably be expected to prevent or interfere with
or delay the consummation of the Transaction. To the Knowledge of Sellers, there are no legal
proceedings pending, or threatened against Seller, in respect of the Transferred Assets or the
Licensed Assets.


Asset Purchase Agreement



 


21









 





Section 5.8 Taxes.



(a) To the extent that failure to do so would have an adverse affect on the Buyer with
respect to its ownership of the Transferred Assets following the date hereof or the Additional
Closing Date, as applicable, the Seller (i) has timely paid all Taxes it is required to pay and
(ii) has timely filed all required Tax Returns relating to any and all Taxes concerning or
attributable to the Transferred Assets and such Tax Returns are true and correct and completed in
accordance with applicable law.



(b) Seller has timely paid or withheld with respect to its employees (and timely paid over any
withheld amounts to the appropriate Taxing authority) all federal and state income taxes, Federal
Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or
paid. Seller has filed all Forms W-2 and 1099 required with respect to thereto.



(c) To the Knowledge of Seller there is no basis for the assertion of any claim for any
liabilities for unpaid Taxes that would result in any Encumbrance on any of the Transferred Assets.



(d) There are no Encumbrances with respect to any Taxes upon any of the Transferred Assets,
other than with respect to Taxes not yet due and payable.



(e) To the extent applicable to the Transferred Assets or the Buyer’s ownership of the
Transferred Assets, Seller has not been delinquent in the payment of any Tax, nor is there any Tax
deficiency outstanding, assessed or proposed against Seller, nor has Seller executed any
outstanding waiver of any statute of limitations on or extension of the period for the assessment
or collection of any Tax.



(f) Except as set forth in Section 5.8(f) of the Disclosure Schedule, to the extent
applicable to the Transferred Assets or the Buyer’s ownership of the Transferred Assets, (i) no
audit or other examination of any Tax Return of Seller is presently in progress, nor has Seller
been notified in writing of any request for such an audit or other examination and (ii) no
adjustment relating to any Tax Return filed by Seller has been proposed formally or, to the
Knowledge of Seller, informally by any tax authority to Seller or any representative thereof.



Section 5.9 Intellectual Property.



(a) Section 5.9(a) of the Disclosure Schedule set sets forth a true, complete and
correct list of each item of Registered IP that is owned by Seller or its Subsidiaries which is
included in the Transferred Assets (the “Transferred Registered IPR”). To the Knowledge of
Seller, each item of Transferred Registered IPR is subsisting (except with respect to
applications), and has not expired or been cancelled, or abandoned. Section 5.9 of the Disclosure
Schedule sets forth all actions that must be taken within 120 days of the date hereof, including
the payment of any registration, maintenance or renewal fees or the filing of any documents,
applications or certificates for the purposes of maintaining, perfecting or preserving or renewing
any Transferred Registered IPR.


Asset Purchase Agreement



 


22









 





(b) The Transferred Assets to be delivered pursuant to this Agreement will be provided to
Buyer in the same form as they were used by the Seller immediately prior to the Initial Closing or
Additional Closing, as applicable. The Simulation Software to be licensed to
Buyer pursuant to the Intellectual Property License Agreement will be provided to Buyer in the
same form as it was used by Seller immediately prior to the Initial Closing or Additional Closing,
as applicable.



(c) The Transferred Assets are free and clear of any Encumbrances. Seller exclusively owns
and has valid and sufficient rights to assign to Buyer all right, title and interest in and to the
Transferred Assets. Other than as disclosed in Section 5.9(c) of the Disclosure Schedule,
Seller has valid and sufficient rights in the Licensed Assets to grant to Buyer the rights and
licenses set forth in the Intellectual Property License Agreement with respect to such Licensed
Assets and other than as disclosed in Section 5.9(c) of the Disclosure Schedule or pursuant
to this Agreement or the Intellectual Property License Agreement, (i) Buyer will not be bound by,
or subject to, any third party restriction or obligation imposed by Seller or its licensors as a
result of this Agreement or the Intellectual Property License Agreement, (ii) Buyer will not be
obligated to pay any royalties or other amounts to Seller or its licensors for use of the Licensed
Assets in accordance with the Intellectual Property License Agreement, and (iii) no third party has
any right to terminate a license agreement with Seller that would interfere with Buyer’s ability to
use the Licensed Assets in the manner permitted by the Intellectual Property License Agreement.
The Parties agree that no representation and warranty in this Section 5.9(c) shall be
deemed to be a representation or warranty with respect to (A) infringement, misappropriation, or
other violation of any Intellectual Property rights of any Person, or (B) the validity or
enforceability of the Licensed Assets or the Intellectual Property included or embodied in the
Transferred Assets, such matters to be covered exclusively by the representations and warranties in
Section 5.9(i) and Section 5.9(j) below.



(d) To the Knowledge of Seller, all third-party Intellectual Property embodied in the
Transferred Assets is listed on Section 5.9(d) of the Disclosure Schedule (which thus
constitutes Excluded Assets).



(e) To the extent that any Transferred Assets or any portion thereof, was developed by any
Person other than Seller for the benefit of Seller or for which Seller has, directly or indirectly,
paid or provided consideration, Seller has a written agreement with such Person with respect
thereto and Seller thereby has obtained ownership of, and is the exclusive owner of, all such
Transferred Assets by operation of law or by valid assignment to the maximum extent permitted under
applicable law.



(f) Seller and its Subsidiaries have taken commercially reasonable steps (including a policy
requiring each Seller Personnel to execute an invention assignment, proprietary rights and
confidentiality agreement substantially in the form set forth in Section 5.9(f) of the
Disclosure Schedules) to safeguard the secrecy and confidentiality of the Exclusively Licensed
Trade Secrets that are included in the Licensed Assets. All Seller Personnel who have created or
modified any of the Software that is included in the Transferred Assets or who have been involved
in creating, conceiving, authoring or inventing, if and as applicable, the Transferred Assets have
entered into agreements with the Seller vesting ownership of any applicable Intellectual Property
in such Transferred Assets in the Seller (to the extent such agreements are necessary under
applicable law in order to vest ownership in the Seller).


Asset Purchase Agreement



 


23









 





(g) If the Transferred Assets or any portion thereof, were originally owned or created by or
for any third party: (1) the transfers and licenses from Seller to Buyer hereunder do not violate
any agreements pursuant to which such Transferred Assets were originally created; (2) such third
parties have not retained and do not have any rights or licenses with respect to the Transferred
Assets; and (3) to the Knowledge of Seller, no basis exists for such third party to challenge or
object to this Agreement.



(h) Other than as contemplated by this Agreement and the other Transaction Agreements, neither
Seller nor its Subsidiaries have transferred ownership of, or granted any license of or right to
use, or authorized the retention of any rights to use, any of the Transferred Assets.



(i) The Transferred Assets and Licensed Assets do not infringe any Copyrights of any Person or
misappropriate any Trade Secrets of any Person. To the Knowledge of Seller, the Transferred Assets
and Licensed Assets do not infringe on any Patents of any Person. To the Knowledge of Seller, the
Simulation Software does not infringe or misappropriate any Intellectual Property of any Person.



(j) Except as set forth in Section 5.9(j) of the Disclosure Schedules, Seller has not
received written notice from any Person claiming that the Transferred Assets or the Licensed Assets
infringe or misappropriate the Intellectual Property of any Person (nor to the Knowledge of Seller
is there any basis for a claim therefor). To the Knowledge of Seller, no Person is infringing or
misappropriating the Transferred Assets. To the Knowledge of Seller, no proceeding is pending,
challenging the validity or enforceability of Seller’s Intellectual Property Rights in the
Transferred Assets or the Licensed Assets.



(k) No Transferred Asset or, to the Knowledge of Seller, Licensed Asset is subject to any
proceeding or outstanding order of any Governmental Entity that restricts in any respect the use,
transfer or licensing thereof.



(l) Other than as disclosed in Section 5.9(l) of the Disclosure Schedule, to the
Knowledge of Seller, no software that is distributed as open source, public source or freeware
software or any modification or derivative thereof, including any version of any software licensed
pursuant to any GNU General Public License (GPL), GNU Lesser/Library Public License (LGPL) or
Mozilla Public License (MPL) or license with substantially similar terms (collectively, “Open
Source Code”), was used in, incorporated into, integrated, distributed or bundled with the
Software included in the Transferred Assets prior to the date of this Agreement (with respect to
the Initial Transferred Assets) or the Additional Closing Date (with respect to the Additional
Transferred Assets) in a manner that would require such Software (a) to be disclosed or distributed
in source code form, (b) to be licensed for the purpose of making derivative works, or (c) to be
redistributed at no charge, or (d) to be subject as a whole to the terms of such open source
license.


Asset Purchase Agreement



 


24









 





(m) Except as set forth in Section 5.9(m)(i) of the Disclosure Schedules, no
government funding, facilities of a university, college, other educational institution or research
center or funding from third parties was used in the development of the Transferred Assets (other
than fees paid pursuant to non-recurring engineering agreements with third parties, which
agreements do not grant any third party any ownership right in the Transferred Assets or in
any Intellectual Property embodied in the Transferred Assets or otherwise contain any restrictions
on the Transferred Assets). Except as set forth in Section 5.9(m)(ii) of the Disclosure
Schedules, to the Knowledge of Seller, no Seller Personnel, who was involved in, or who contributed
to, the creation or development of any Transferred Assets or the Licensed Assets, has performed
services for the government, university, college, or other educational institution or research
center during a period of time during which such Seller Personnel was also performing services for
Seller.



(n) Seller has not intentionally introduced into the Transferred Assets or Licensed Assets (or
any parts thereof) any “back door”, “time bomb”, “Trojan horse”, “worm”, “drop dead device”, or any
virus or any other such code that permits unauthorized access or the unauthorized disruption,
impairment, disablement or erasure of such Transferred Assets or Licensed Assets (or any parts
thereof) or data or other software of users. Seller has taken commercially reasonable steps and
implemented commercially reasonable procedures designed to minimize exposure of its information
technology systems used in connection with the operation of its business to the items identified
above.



Section 5.10 Employees; Contractors. Section 5.10 of the Disclosure Schedule sets forth a
true, correct, complete list, as of the date hereof, of the names, date of birth, departments and
titles of each Transferred Employee and, for each such Transferred Employee, the following
information: current compensation paid or payable (including details of any bonus or commission
schemes and entitlements) and any contemplated change in compensation together with terms on which
such compensation is payable; and date of commencement of employment or engagement. No Transferred
Employee has in the last 12 months, or to the Knowledge of Seller, intends to give notice of
terminating his or her employment.



Section 5.11 Compliance with Law. Seller is, and since January 1, 2008 has been, in compliance
with all material Laws which any of the Transferred Assets or Licensed Assets are subject. Seller
has received no notice and, to the Knowledge of Seller, there are no threatened claims of violation
or liability under any material Law to which the Transferred Assets are subject. Notwithstanding
the foregoing, Seller makes no representations or warranties with respect to Laws relating to
Intellectual Property in this Section 5.11, the representations and warranties for which
are set forth in Section 5.9.



Section 5.12 Oral Contracts. To the Knowledge of Seller, Seller is not party to any oral contracts
or agreements which relate to the Transferred Assets.



Asset Purchase Agreement



 


25









 





Section 5.13 No Brokers. Neither Seller nor of any its Subsidiaries has entered into or will enter
into any contract, agreement, arrangement or understanding with any broker, finder or similar agent
or any Person which will result in the obligation of the Buyer or any of its Affiliates to pay any
finder’s fee, brokerage fees or commission or similar payment in connection with the transactions
contemplated by this Agreement or the Ancillary Agreements.



Section 5.14 No Other Representations or Warranties. Except for the representations and warranties
contained in this Article V (as modified by the Disclosure Schedules), neither the Seller
nor any other Person makes any other express or implied representation or warranty with respect to
the
Seller, it Subsidiaries, the Transferred Assets, Licensed Assets or the transactions
contemplated by this Agreement, and the Seller disclaims any other representations or warranties,
whether made by the Seller, its Subsidiaries or any of their respective current or former
Representatives or Affiliates. Except for the representations and warranties contained in this
Article V (as modified by the Disclosure Schedules), the Seller hereby disclaims all
liability and responsibility for any representation, warranty, projection, forecast, statement, or
information made, communicated, or furnished (orally or in writing) to the Buyer or its
Representatives (including any opinion, information, projection, or advice that may have been or
may be provided to Buyer by any current or former Representative or Affiliate of Seller or its
Subsidiaries).



ARTICLE VI




COVENANTS




Section 6.1 Further Assistance. Following the Initial Closing until Buyer and the Transferred
Employees are no longer providing Consulting Services pursuant to Section 2.5, Seller shall
provide Buyer, at no charge, other than reimbursement for reasonable out of pocket costs and
expenses incurred, with reasonable assistance (to the extent such assistance does not materially
interfere with the Seller Personnel’s job performance) that Buyer may request in order to enable
Buyer to understand and use the Transferred Assets. Each of the Parties hereby agree to use its
commercially reasonable efforts to (i) take all actions necessary or appropriate to consummate the
transactions contemplated by this Agreement and (ii) cause the fulfillment at the earliest
practicable date of all of the conditions to their respective obligations to consummate the
transaction contemplated by this Agreement. Following the Additional Closing, if either Party
becomes aware that any of the Transferred Assets have not been transferred or delivered to Buyer or
that any of the Excluded Assets have been transferred or delivered to Buyer, it shall promptly
notify the other Party and the Parties shall, as soon as reasonably practicable, ensure that such
asset is properly transferred and delivered to (x) Buyer in the case of any Transferred Asset which
was not transferred to Buyer and (y) Seller in the case of any Excluded Asset which was transferred
to Buyer. Assistance under this Section 6.1 may, if and as necessary, include execution,
acknowledgment and recordation of specific assignments, oaths, declarations and other documents on
a jurisdiction-by-jurisdiction or a country-by-country basis and such other instruments of sale,
transfer, conveyance, and assignment as either Party or its counsel may reasonably request.



Section 6.2 Intellectual Property Rights. Following the Closing, Seller shall provide Buyer, at
no charge, other than reimbursement for reasonable out of pocket expenses incurred, commercially
reasonable assistance and information Buyer may require or request to prosecute, file, register,
perfect, record or enforce any Transferred Assets.


Asset Purchase Agreement



 


26









 





Section 6.3 Access to Information. From the date hereof through the Additional Closing Date, Buyer
shall be entitled, through its employees and representatives, to enter upon and make such
reasonable investigation of the assets of Seller to the extent they directly relate to the
Additional Transferred Assets. Any such investigation and examination shall be conducted at
reasonable times upon reasonable prior notice to Seller and under reasonable circumstances;
provided, however, that such investigation shall not unreasonably interfere with the business
operations of Seller.



Section 6.4 Conduct of Business. Seller covenants that from the date hereof until Additional
Closing it will, take all commercially reasonable steps to preserve and protect the Additional
Transferred Assets, comply in all material respects with all material Laws and contractual
obligations applicable to the Additional Transferred Assets and maintain existing relations with
the Transferred Employees.



Section 6.5 M Development Agreement. Following the Initial Closing, Seller agrees not to amend
the M Development Agreement in a manner that alters or repeals the release of the market
restrictions with respect to Buyer set forth in Section 1.3 of the M Amendment; for the avoidance
of doubt, this Section 6.5 shall in no way restrict the ability of Seller to amend any
other terms or provisions of the M Development Agreement.



Section 6.6 V Agreement. From the date hereof until the earlier of the Expected Completion Date
(as may be extended pursuant to Section 2.6(b)(i)) or the Additional Closing Date, Seller will use
commercially reasonable efforts (for the avoidance of doubt, commercially reasonable efforts will
not include an obligation to pay any money or make any other concessions) to assist Buyer in
securing a right from the third party set forth in Item 3 on Exhibit J to use the
technology set forth in Item 4 on Exhibit J, whether through a direct Contract with such
party or through a sublicense from Seller, in each case to the extent permitted by such third
party. Seller will use commercially reasonable efforts (for the avoidance of doubt, commercially
reasonable efforts will not include an obligation to pay any money or make any other concessions)
to cause the third party set forth in Item 3 on Exhibit J to waive any initial license fees or
development fees or other non-recurring fees, provided that Buyer acknowledges that such Contract
will be subject to royalties.



ARTICLE VII




CONFIDENTIALITY




Section 7.1 Confidentiality of Agreement and Public Announcements.



(a) Seller agrees that the terms, conditions and existence of this Agreement (including any
claim or dispute arising out of or related to this Agreement, or the interpretation, making,
performance, breach or termination thereof), and, after the Initial Closing, all information
concerning the Transferred Assets or business and affairs of Buyer other than information which:
(i) is or becomes generally available to the public other than as a result of a disclosure by
Seller in violation of this Agreement or the Ancillary Agreements, (ii) to the extent it relates to
the business and affairs of Buyer but not to the Transferred Assets, was within Seller’s possession
prior to its being furnished to Seller by or on behalf of Buyer, provided that the source of such
information was not known



Asset Purchase Agreement



 


27









 






by Seller to be bound by a confidentiality agreement with, or other
contractual, legal or fiduciary obligation of confidentiality to, Buyer or any other party with
respect to such information or (iii) becomes available to Seller on a non-confidential basis from a
source other than Buyer, provided that such source is not known by Seller to be bound by a
confidentiality agreement with, or other contractual, legal or fiduciary obligation of
confidentiality to, Buyer or any other party with respect to such information (the “Buyer’s
Confidential Information”), shall be kept confidential and that no reference to the terms,
conditions or existence of the Transaction Agreements, the Transaction or to activities
pertaining thereto or to any of Buyer’s Confidential Information (including such information
that shall become Buyer’s Confidential Information after either the Initial Closing or the
Additional Closing) may be made by Seller in any form of public or commercial announcement or
advertising without the prior written Consent of Buyer; provided, that Seller may disclose the
Buyer’s Confidential Information: (A) as required by any Governmental Entity; (B) as otherwise
required by applicable Law, rule or regulation; (C) to its legal counsel or (D) to the extent
permitted and in accordance with the terms of the Intellectual Property License Agreement. Without
limiting the foregoing, Seller shall not issue any statement or communication to any third party
(subject to the exceptions set forth in the preceding sentence) regarding the subject matter of the
Ancillary Agreements or the Transaction, including, if applicable, the termination of this
Agreement and the reasons therefor, without the prior written Consent of Buyer. If Seller is
required to disclose the Buyer’s Confidential Information pursuant to the requirement of a
Governmental Entity or applicable Law, Seller shall provide, as promptly as practicable, notice
thereof to Buyer and Seller shall (x) allow Buyer to review and provide Seller with comments on
such disclosure and to attempt to obtain a protective order, and Seller shall also use its
commercially reasonable efforts to assist Buyer (at Buyer’s sole cost and expense) in obtaining a
protective order or otherwise prevent public disclosure of such information and (y) with respect to
disclosures or filings with the Securities and Exchange Commission (the “SEC”), upon
written request by Buyer, use commercially reasonable efforts (at Buyer’s sole cost and expense) to
seek confidential treatment of Buyer’s Confidential Information in making such filings or
disclosures with the SEC and Buyer shall be given the opportunity to review and provide Seller with
comments on such confidential treatment request prior to any disclosure or filing with the SEC by
Seller.



(b) Buyer agrees that the terms, conditions and existence of this Agreement (including any
claim or dispute arising out of or related to this Agreement, or the interpretation, making,
performance, breach or termination thereof), and all information concerning the business and
affairs of Seller other than information which: (i) is or becomes generally available to the public
other than as a result of a disclosure by Buyer in violation of this Agreement or the Ancillary
Agreements, (ii) to the extent it relates to the business and affairs of Seller but not to the
Transferred Assets, was within Buyer’s possession prior to its being furnished to Buyer by or on
behalf of Seller, provided that the source of such information was not known by Buyer to be bound
by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of
confidentiality to, Seller or any other party with respect to such information or (iii) becomes
available to Buyer on a non-confidential basis from a source other than Seller, provided that such
source is not known by Buyer to be bound by a confidentiality agreement with, or other contractual,
legal or fiduciary obligation of confidentiality to, Seller or any other party with respect to such
information (the “Seller’s Confidential Information”), shall be kept confidential and that
no reference to the terms, conditions or existence of the Transaction Agreements, the
Transaction or to activities pertaining thereto or to


Asset Purchase Agreement


 


28









 






any of Seller’s Confidential Information may be made by
Buyer in any form of public or commercial announcement or advertising without the prior written
Consent of Seller; provided, that Buyer may disclose the Seller’s Confidential Information: (A) as
required by any Governmental Entity; (B) as otherwise required by applicable Law, rule or
regulation; or (C) to its legal counsel. Without limiting the foregoing, Buyer shall not issue any
statement or communication to any third party (subject to the exceptions set forth in the preceding
sentence) regarding the subject matter of the Ancillary Agreements or the Transaction, including,
if applicable, the termination of this Agreement and
the reasons therefor, without the prior written Consent of Seller. If Buyer is required to
disclose the Seller’s Confidential Information pursuant to the requirement of a Governmental Entity
or applicable Law, Buyer shall provide, as promptly as practicable, notice thereof to Seller and
Buyer shall (x) allow Seller to review and provide Buyer with comments on such disclosure and to
attempt to obtain a protective order, and Buyer shall also use its commercially reasonable efforts
to assist Seller (at Seller’s sole cost and expense) in obtaining a protective order or otherwise
prevent public disclosure of such information and (y) with respect to disclosures or filings with
the SEC, upon written request by Seller, use commercially reasonable efforts (at Seller’s sole cost
and expense) to seek confidential treatment of Seller’s Confidential Information in making such
filings or disclosures with the SEC and Seller shall be given the opportunity to review and provide
Buyer with comments on such confidential treatment request prior to any disclosure or filing with
the SEC by Buyer.



(c) Except as required by any Governmental Entity or as otherwise required by applicable Law,
rule or regulation, neither Party shall issue a press release or other written public statement
regarding this Agreement or the Ancillary Agreements or the transactions contemplated hereby or
thereby without the prior written consent of the other Party.



(d) If either Party breaches any of its obligations with respect to confidentiality or use of
Buyer’s Confidential Information or Seller’s Confidential Information under this Section
7.1, the non-breaching Party shall be entitled to seek equitable relief to protect its interest
therein, including injunctive relief, as well as monetary damages.



Section 7.2 Trade Secrets. Each Party shall not (a) knowingly disclose the trade secrets in the
Transferred Assets without non-disclosure commitments (other than Seller in connection with
prosecuting any patents) or (b) publish or take action that would otherwise destroy such trade
secrets or compromise the other Party’s ability to enforce the trade secret rights (other than
Seller in connection with prosecuting any patents). For the avoidance of doubt, Seller shall not
disclose the Exclusively Licensed Trade Secrets to (with or without non-disclosure commitments),
nor allow use by entities on Schedule A of the Intellectual Property License Agreement
(“Competitor List”).


Asset Purchase Agreement



 


29









 





ARTICLE VIII




INDEMNIFICATION




Section 8.1 Survival. The representations and warranties of the Seller contained in Article
V and the representations and warranties of the Buyer contained in Section 4.7 shall
survive the Initial Closing and the Additional Closing and shall terminate and be of no further
force and effect on the date that is the eighteen (18) month anniversary of the date of this
Agreement. All of the covenants and other agreements of the Parties contained in this Agreement
shall survive until fully performed or fulfilled in accordance with their terms, unless and to the
extent only that non compliance with such covenants or agreements is waived by the Party entitled
to such performance.



Section 8.2 Indemnification by Seller. From and after the Initial Closing (to the extent related
to the Initial Transferred Assets and the Initial Licensed Assets ) and from and after the
Additional Closing (to the extent related to the Additional Transferred Assets and the Additional
Licensed Assets) Seller shall indemnify and hold harmless Buyer and its directors, officers,
employees, Affiliates, agents and representatives (collectively, the “Buyer Indemnitees”)
from and against any and all Losses suffered or incurred by the Buyer Indemnitees to the extent
arising from:



(a) any breach or inaccuracy of any representation or warranty of Seller contained in
Article V of this Agreement (other than with respect to Losses arising from breaches or
inaccuracies of the representations and warranties of Seller set forth in Section 5.01,
Section 5.9(b) and Section 5.13);



(b) any breach or inaccuracy of any representation or warranty of Seller contained in
Section 5.1, Section 5.9(c) and Section 5.13;



(c) the breach of any covenant or agreement made by Seller in this Agreement; or



(d) any Excluded Liability.



Section 8.3 Limitations on Indemnification. Notwithstanding anything to the contrary contained in
this Agreement, the rights of indemnification pursuant to Section 8.2 are subject to the following
limitations:



(a) The maximum aggregate Liability of Seller to all the Buyer Indemnitees for Losses for any
claims for indemnification pursuant to Section 8.2(a) shall in no event exceed $2,600,000.



(b) The maximum aggregate Liability of Seller to all the Buyer Indemnitees for Losses for any
claims for indemnification pursuant to Section 8.2(b) shall in no event exceed the Purchase
Price. For the avoidance of doubt the limitations set forth in clauses (a) and (b) of this
Section 8.3 shall not apply to claims for indemnification pursuant to clauses (c) and (d)
of Section 8.2.


Asset Purchase Agreement



 


30









 





(c) Indemnification shall be available to the Buyer Indemnitees under Section 8.2 only to the
extent the aggregate amount of Losses otherwise due to the Buyer Indemnitiees for all claims for
such indemnification exceed an amount equal to $260,000 (the “Basket”) and then
indemnification shall only be available to the Buyer Indemnitees to the extent such Losses exceed
the Basket.



(d) No claim by the Buyer Indemnitees shall be assert unless and until the aggregate amount of
Losses that would be payable pursuant to such claim exceed an amount equal to $26,000 (the “De
Minimis Threshold”); provided, that in the event the Losses for any individual claim exceed the
De Minimis Threshold, then the Buyer Idemnitees shall, subject to clauses (a), (b) and (c) of this
Section 8.3, be entitled to indemnification for the full amount of such Losses and the full
amount of such Losses shall be considered taken into account in determining whether the Basket has
been met or exceeded.



(e) Seller shall have no Liability to indemnify any Buyer Indemnitee with respect to any
breach or inaccuracy of any representation, warranty, covenant or agreement based on any facts or
circumstances known to any of the individuals set forth on Exhibit I prior to the Initial Closing
(or, to the extent such representation, warranty, covenant or agreement relates to the Additional
Transferred Assets or Additional Licensed Assets, prior to the Additional Closing).



(f) Recovery by any Buyer Indemnitee of any Loss suffered or incurred by such Buyer Indemnitee
as a result of any breach or inaccuracy of any representation, warranty, covenant or agreement
under this Agreement shall be limited to the actual damages suffered or incurred as a result of
such breach or inaccuracy.



(g) Any amounts payable pursuant to the indemnification obligations under this Article
VIII shall be paid without duplication, and in no event shall any Buyer Indemnitee be
indemnified under different provisions of this Agreement for the same Loss. The amount which
Seller is or may be required to pay to Buyer Indemnitee in respect of Losses for which
indemnification is provided under this Agreement will be reduced by any amounts actually received
(including amounts received under insurance polices) by or on behalf of the Buyer Indemnitee from
third parties (such amounts and benefits are collectively referred to herein as “Indemnity
Reduction Amounts”). If any Buyer Indemnitee receives any Indemnity Reduction Amounts in
respect of a claim for which indemnification is provided under this Agreement after the full amount
of such claim has been paid by Seller or after Seller has made a partial payment of such claim and
such Indemnity Reduction Amounts exceed the remaining unpaid balance of such claim, then the Buyer
Indemnitee will promptly remit to Seller an amount equal to the excess (if any) of (i) the amount
theretofore paid by Seller in respect of such claim, less (ii) the amount of the indemnity
payment that would have been due if such Indemnity Reduction Amounts in respect thereof had been
received before the indemnity payment was made. An insurer or other third party who would
otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect
thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights
with respect thereto, it being expressly understood and agreed that no insurer or any other third
party shall be entitled to any benefit they would not be entitled to receive in the absence of the
indemnification provisions by virtue of the indemnification provisions hereof. Buyer will, or will
cause each other Buyer Indemnitee to, use its commercially reasonable efforts to pursue promptly
any claims or rights it may have against all third parties which would reduce the amount of Losses
for which indemnification is provided under this Agreement.


Asset Purchase Agreement



 


31









 





Section 8.4 Claims. Any Buyer Indemnitee claiming it may be entitled to indemnification under
this Article VIII (the “Indemnified Party”) shall give prompt written notice to
Seller of each matter, action, cause of action, claim, demand, fact or other circumstances upon
which a claim for indemnification (a “Claim”) hereunder may be based. Such notice shall
contain, with respect to each Claim, such facts and information as are then reasonably available,
including the estimated amount of Losses and the specific basis for indemnification hereunder.
Failure to give prompt notice of a Claim hereunder shall not affect Seller’s obligations hereunder,
except to the extent Seller is actually prejudiced by such failure.



Section 8.5 Defense of Actions. If there is a third party claim which the Indemnified Party in
good faith believes will result in a demand for indemnification pursuant to this Article
VIII (a “Third Party Claim”), Seller shall be entitled, at Seller’s option and expense, to
participate in, but not to determine or conduct, the defense of such Third Party Claim. Seller’s
rights shall include the right to consult with the Indemnified Party and/or, at Indemnified Party’s
election, counsel defending the Third Party Claim, from time to time, as well as the right to
review documents and materials produced in discovery or submitted as evidence in connection with
the Third Party Claim, subject to reasonable limitations to the extent necessary to comply with
confidentiality obligations or preserve any legal privileges. Indemnified Party shall have the
right in its sole discretion to conduct the defense of, and to settle, any such Third Party Claim;
provided, however, that, Indemnified Party shall not be entitled to settle any
Third Party Claims that provide for the payment of monetary damages without the prior written
consent of the Seller, which consent shall not be unreasonably withheld. Notwithstanding the
foregoing, the Seller shall continue to be entitled to assert any limitation on any Claims
contained in this Article VIII.



Section 8.6 Mitigation. The Parties hereto shall cooperate with each other with respect to
resolving any Claim or Liability with respect to which Seller is obligated to provide
indemnification hereunder, including by taking commercially reasonable efforts to mitigate or
resolve any such Claims or Liability.



Section 8.7 Exclusive Remedy. Subject to claims for specific performance pursuant to Section
10.11 and claims based on fraud (which for the avoidance of doubt includes fraud based on an
intentional misrepresentation) or willful misconduct, notwithstanding anything to the contrary
contained in this Agreement, the remedies set forth in this Article VIII shall be the sole
and exclusive remedy for the Buyer Indemnitees for any breach or inaccuracy of any representation,
warranty, covenant or other provision contained in this Agreement or in any certificate, agreement
or document delivered in connection herewith or otherwise in respect of the Transactions
contemplated hereby other than the Intellectual Property License Agreement.


Asset Purchase Agreement



 


32









 





ARTICLE IX




TERMINATION




Section 9.1 Termination. The provisions of this Agreement to the extent they relate or refer to
the Additional Transferred Assets, Additional Licensed Assets, the Additional Assumed Liabilities,
the Additional Closing and the transactions contemplated to occur at the Additional Closing may be
terminated prior to the Additional Closing as follows:



(a) by mutual written consent of the Parties;



(b) by either Party by giving written notice to the other Party if the Additional Closing
shall not have occurred by July 15, 2012, unless extended by mutual written consent of the Parties;
provided that the Party seeking termination pursuant to this Section 9.1(b) is not in
default or breach of any Transaction Agreement to which it is a party; provided, further, that the
right to terminate this Agreement under this Section 9.1(b) shall not be available to any
Party whose failure to fulfill any obligation under this Agreement has been the cause of, or
resulted in, the failure of the Additional Closing to occur on or before such date;



(c) by either Buyer on the one hand or Seller on the other hand if (i) the consummation of the
Transactions shall violate any Order that shall have become final and nonappealable or (ii) there
shall be a Law that makes the Transactions illegal or otherwise prohibited prior to the Additional
Closing; or



(d) by Buyer pursuant to Section 2.6(b)(iii);



Section 9.2 Effect of Termination. In the event of any termination of this Agreement pursuant to
Section 9.1, all rights and obligation of the Parties hereunder solely to the extent
relating to the Additional Transferred Assets, the Additional Licensed Assets, the Additional
Assumed Liabilities or the Additional Closing or to the extent there are obligations which
terminate at the Additional Closing shall terminate without any Liability on the part of either
Party or their respective Affiliates and this Agreement solely to the extent relating to the
Additional Transferred Assets, the Additional Licensed Assets, the Additional Assumed Liabilities
or the Additional Closing shall become void and of no further force and effect, except that (x) the
provisions set forth in this Article IX and Article X shall remain in full force and effect,
regardless of whether such provisions relate to Additional Transferred Assets, the Additional
Licensed Assets, the Additional Assumed Liabilities or the Additional Closing, (y) for the
avoidance of doubt, nothing in this Section 9.2 shall be deemed to release any Party from any
Liability, obligation or impair the right of any Party or terminate any provision in this Agreement
solely to the extent such Liability, obligation or right or provision relates to the Initial
Transferred Assets, the Initial Assumed Liabilities, the Initial Licensed Assets, the Initial
Closing or the Excluded Liabilities (including, for the avoidance of doubt, any obligation of
Seller to provide indemnification under Article VIII solely to the extent related to the
Initial Transferred Assets, Initial Licensed Assets or the Excluded Liabilities) or (z) fraud
(which for the avoidance of doubt includes fraud based on an intentional misrepresentation) or
willful misconduct.


Asset Purchase Agreement



 


33









 





ARTICLE X




GENERAL




Section 10.1 Resolution of Conflicts.



(a) In the event a dispute arises among the Parties in connection with any matter based upon
or arising out of this Agreement, the Parties shall attempt in good faith to agree upon a
resolution for any such dispute, if no such agreement can be reached within thirty (30) days after
good faith negotiation, either Party may demand arbitration and the matter shall be settled by
arbitration (unless the amount of the Loss that is at issue is the subject of a pending litigation
with a third party, in which event arbitration shall not be commenced until such amount is
ascertained or both Parties agree to arbitration) conducted by one arbitrator mutually agreeable to
Buyer and Seller. In the event that, within thirty (30) days after submission of any dispute to
arbitration, Buyer and Seller cannot mutually agree on one arbitrator, then, within fifteen (15)
days after the end of such thirty (30) day period, Buyer and Seller shall each select one
arbitrator. The two arbitrators so selected shall select a third arbitrator. If either Party
fails to select an arbitrator during this fifteen (15) day period, then the Parties agree that the
arbitration will be conducted by the one arbitrator selected by the other Party.



(b) Any such arbitration shall be held in San Francisco, California, under the rules then in
effect of the ICC. The arbitrator(s) shall determine how all expenses relating to the arbitration
shall be paid, including the respective expenses of each Party, the fees of each arbitrator and the
administrative fee of the ICC. The arbitrator or arbitrators, as the case may be, shall set a
limited time period and establish procedures designed to reduce the cost and time for discovery
while allowing the Parties an opportunity, adequate in the sole judgment of the arbitrator or
majority of the three arbitrators, as the case may be, to discover relevant information from the
opposing Parties about the subject matter of the dispute. The arbitrator, or a majority of the
three arbitrators, as the case may be, shall rule upon motions to compel or limit discovery and
shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same
extent as a competent court of law or equity, should the arbitrators or a majority of the three
arbitrators, as the case may be, determine that discovery was sought without substantial
justification or that discovery was refused or objected to without substantial justification. The
decision of the arbitrator or a majority of the three arbitrators, as the case may be, as to the
validity and amount of any claim in such Claim Certificate shall be final, binding, and conclusive
upon the Parties to this Agreement (and each other Indemnified Party hereunder). Such decision
shall be written and shall be supported by written findings of fact and conclusions which shall set
forth the award, judgment, decree or order awarded by the arbitrator(s). Within thirty (30) days
of a decision of the arbitrator(s) requiring payment by one Party to another, such Party shall make
the payment to such other Party.



(c) The Parties consent to the jurisdiction of the Federal District Court located in San
Francisco, California for the enforcement of these provisions and the entry of judgment on any
award rendered hereunder. In the event that such court lacks jurisdiction over any proceeding
submitted hereunder, the Parties shall submit to the jurisdiction of any State Court located in San
Francisco, California. Each Party has the right before or, if the arbitrator(s) cannot hear the
matter within an acceptable period, during the arbitration, to seek and obtain from the appropriate
court provisional remedies such as attachment, preliminary injunction, replevin, etc. to avoid
irreparable harm, maintain the status quo, or preserve the subject matter of the arbitration.
Except as set forth in this subsection (c), the forgoing arbitration provision shall apply to any
dispute among the Parties under this Agreement.


Asset Purchase Agreement



 


34









 





Section 10.2 Terms Generally. The definitions contained in this Agreement shall apply equally to
both the singular and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The
words “herein”, “hereof” and “hereunder” and words of similar import refer to this Agreement
(including the Exhibits to this Agreement and the Disclosure Schedule) in its entirety and not to
any part hereof unless the context shall otherwise require. All references herein to Articles,
Sections, Exhibits and the Disclosure Schedule shall be deemed references to Articles and Sections
of, and Exhibits and the Disclosure Schedule to, this Agreement unless the context shall otherwise
require. Unless the context shall otherwise require, any references to any agreement or other
instrument or statute or regulation are to it as amended and supplemented from time to time (and,
in the case of a statute or regulation, to any successor provisions). Any reference to any
federal, state, local, or foreign statute or Law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. Any reference in this
Agreement to a “day” or a number of “days” (without explicit reference to
“Business Days”) shall be interpreted as a reference to a calendar day or number of calendar
days. If any action is to be taken or given on or by a particular calendar day, and such calendar
day is not a Business Day, then such action may be deferred until the next Business Day.



Section 10.3 Notices. All notices, requests, demands, claims and other communications hereunder
shall be in writing. Any notice, request, demand, claim or other communication shall be deemed
duly given (a) two (2) Business Days after it is sent by registered or certified mail, return
receipt requested, postage prepaid, (b) one (1) Business Day after it is sent for next Business Day
delivery via a reputable nationwide overnight courier service, or (c) on the date sent after
transmission by facsimile with written confirmation, in each case to the intended recipient as set
forth below (or at such other address for a Party hereto as shall be specified in a notice given in
accordance with this Section 10.3).



If to Buyer to:



Juniper Networks, Inc.

1194 North Mathilda Avenue

Sunnyvale, California 94089-1206

Attention: General Counsel

Facsimile: 408-745-8910




with a copy to (which copy shall not be deemed to be notice to Buyer):

Juniper Networks, Inc.

1194 North Mathilda Avenue

Sunnyvale, California 94089-1206

Attention: Deputy General Counsel & Vice President

Facsimile: 408-745-8933



Asset Purchase Agreement



 


35









 





If to Seller to:



Opnext Subsystems, Inc.

151 Albright Way

Los Gatos, CA 95032

Attention: President

Facsimile: 408-871-0720




With a copy to (which copy shall not be deemed to be notice to Seller):

Opnext, Inc.

46429 Landing Parkway

Fremont, CA 94538

Attention: General Counsel

Facsimile: 510-580-8829




Section 10.4 Severability. If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any law or public policy, all other terms and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner materially adverse
to any Party. Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the Parties as closely as possible in an
acceptable manner in order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.



Section 10.5 Entire Agreement. This Agreement (including the Exhibits and Schedules hereto) and
the other Transaction Agreements constitute the entire agreement of the Parties hereto with respect
to the subject matter hereof and supersedes all prior and contemporaneous agreements, covenants,
representations, warranties, undertakings and understanding, written or oral, among the Parties
hereto with respect to the subject matter hereof.



Section 10.6 Assignment. Neither Party may assign this Agreement without the other Party’s prior
written consent; provided however, either Party may assign this Agreement to its successor
effective upon notice, in the event of a change of control, merger, reorganization or sale of all
or substantially all of the assets of such assigning Party and Buyer may assign any or all of its
rights hereunder to any of its Affiliates. Notwithstanding any assignment by Buyer to an
Affiliate, Buyer shall remain liable for its obligations hereunder.



Section 10.7 No Third Party Beneficiaries. Unless otherwise expressly provided, no provisions of
this Agreement are intended or shall be construed to confer upon or give to any Person other than
the Parties hereto (and their authorized assignees) any rights, remedies or other benefits under or
by reason of this Agreement.



Section 10.8 Amendment. This Agreement may not be amended, restated, supplemented or otherwise
modified except by an instrument in writing signed by Buyer and Seller.


Asset Purchase Agreement



 


36









 





Section 10.9 Governing Law; Waiver of Jury Trial. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO
CONTRACTS MADE AND PERFORMED ENTIRELY IN THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO ANY
PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD CAUSE THE LAWS OF ANY OTHER JURISDICTION TO APPLY. Each
of the Parties hereto irrevocably consents to arbitration pursuant to Section 10.1 in
connection with any matter based upon or arising out of this Agreement or the matters contemplated
herein, agrees that process may be served upon them in any manner authorized by the laws of the
State of California for such persons and waives and covenants not to assert or plead any objection
which they might otherwise have to such jurisdiction, venue and such process. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONC CONTEMPLATED HEREBY.



Section 10.10 Waiver. The failure of either Party to enforce any provision of this Agreement shall
in no way be construed to be a present or future waiver of such provision, nor in any way affect
the right of either Party to enforce such provision thereafter. The express waiver by either Party
of any provision of this Agreement shall not constitute a waiver of the other Party’s future
obligation to comply with such provision.



Section 10.11 Specific Performance. The Parties agree that irreparable damage would occur in the
event that any provision of this Agreement were not performed in accordance with the terms hereof
and that Seller and Buyer shall be entitled to specific performance of the terms and provisions
hereof, including an injunction or injunctions to prevent breaches of this Agreement by the Seller
or Buyer in addition to any other remedy at law or equity. Seller and Buyer each hereby waive (a)
any defenses in any action for specific performance, including the defense that a remedy at Law
would be adequate and (b) any requirement under any Law to post a bond or other security as a
prerequisite to obtaining equitable relief.



Section 10.12 Counterparts and Facsimile Signature. This Agreement may be executed in one or more
counterparts, and by the different Parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall constitute one and
the same agreement. This Agreement may be executed by facsimile signature.



Section 10.13 Headings. The table of contents and section headings contained in this Agreement are
for reference purposes only and shall not be deemed a part of this Agreement or affect in any way
the meaning or interpretation of this Agreement.



Section 10.14 Construction. The Parties have participated jointly in the negotiation and drafting
of this Agreement. In the event an ambiguity or question or intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of
proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement.


Asset Purchase Agreement



 


37









 





Section 10.15 Update Disclosure Schedule. Seller will have the right to deliver to Buyer on or
before the Additional Closing a supplement to the Disclosure Schedule (the “Additional Closing
Schedule Supplement”) containing any matters arising or discovered after the date hereof solely
to the extent they relate to the Additional Transferred Assets or the Additional Licensed Assets
which, if occurring prior to the date hereof, would have been set forth or described in the
Disclosure Schedule in order to make the representations and warranties in Article V true and
complete with respect to the Additional Transferred Assets or the Additional Licensed Assets. The
Additional Closing Schedule Supplement will have no effect for the purposes of determining the
satisfaction of the condition to the Additional Closing set forth in Section 2.4(e)(ii)(D)
or whether the Additional Transferred Assets are completed in accordance with the Additional Assets
Acceptance Criteria. The Additional Closing Schedule Supplement will, however, for purposes of
determining whether Seller has breached any of its representations and warranties hereunder to the
extent they relate to the Additional Transferred Assets or the Additional Licensed Assets for any
purpose other than Section 2.4(e)(ii)(D), be deemed to amend the Disclosure Schedule and
the sections of the Disclosure Schedule referenced in the Additional Closing Schedule Supplement to
reflect the matters set forth therein.



Section 10.16 Expenses. Except as otherwise set forth in this Agreement, all costs and expenses
associated with this Agreement and the transactions contemplated hereby shall be borne by the Party
incurring such expenses.



[The remainder of this page intentionally left blank]


Asset Purchase Agreement



 


38









 





IN WITNESS WHEREOF, the individuals and entities listed below, in their own capacity or by
their duly authorized representatives, have executed this Agreement as of the date first written
above.



	 	 	 	 	 
	JUNIPER NETWORKS, INC.

 	 	 
	By:  	/s/ Stefan Dyckerhoff
 	 	 
	 	Name:  	Stefan Dyckerhoff 	 	 
	 	Title:  	Executive Vice President and General Manager, PSG 
	 
	OPNEXT SUBSYSTEMS, INC.

 	 	 
	By:  	/s/ Michael C. Chan
 	 	 
	 	Name:  	Michael C. Chan 	 	 
	 	Title:  	President 	 	 



Asset Purchase Agreement