Emc Asset Purchase & License Agreement

Exhibit 10(s)


ASSET PURCHASE AND LICENSE AGREEMENT


ASSET PURCHASE AND LICENSE AGREEMENT (this " Agreement" ) dated as of December 29, 2005 (the " Effective Date" ), by and between Acxiom Corporation, a Delaware corporation (" Acxiom" or " Seller" ), and EMC Corporation, a Massachusetts corporation, and EMC (Benelux) B.V., S.e0.r.l., a Luxembourg limited liability company (together, " EMC " or " Buyer" ).


In consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Buyer each hereby agree as follows:


1. Acquired Assets . Seller, by this Agreement, does hereby convey, sell, transfer, assign, grant, release, set over, confirm and deliver to Buyer all of Seller' s right, title and interest in and to the following assets, properties, privileges, business and rights (of every nature and description, tangible or intangible, real, personal or mixed and wherever situated, located or existing) (collectively, the " Acquired Assets" ):


(a) The technology described on Exhibit 1(a) hereto, including without limitation all current, future and prior versions of such technology and all derivative works of such technology (collectively, the " Base Technology" ), and all know how, trade secrets, proprietary information, product documentation, software, methodologies, processes, tools, diagnostic, test and maintenance aids that are or have been used in connection with the development, licensing, maintenance or distribution of the Base Technology or are necessary for Buyer to develop, manufacture, maintain or distribute the Base Technology or any derivative works thereof, in each case, in order to permit Buyer, to the maximum extent possible, to develop, manufacture, maintain, distribute, or engage in similar activities with respect to the Base Technology in the future, or any derivative works thereof;


(b) (i) All patents and patent applications, issued or pending, worldwide assigned to Seller claiming subject matter related to the Base Technology, if any; and (ii) all copyrighted materials and works-for-hire owned by Seller related to the Base Technology. Seller shall execute and deliver such instruments and take such other action as may be requested by Buyer to perfect or protect Buyer's intellectual property rights in the Acquired Assets and to carry out the assignments contemplated in this Section 1, and shall reasonably assist Buyer at Buyer's expense and their respective nominees to secure, and maintain, for Buyer's own benefit all such intellectual property rights in the Acquired Assets in any and all countries. Seller shall reasonably cooperate with Buyer at Buyer's expense in the filing and prosecution of any patent or copyright applications that Buyer may elect to file on the Acquired Assets.


(c) To the extent permitted under such agreements, the software license and maintenance agreements (and all rights and obligations of Seller thereunder) of Seller for third party software and/or technology included in or related to the Base Technology (collectively, the " Included License Agreements "); provided that all software license and maintenance agreements for third party software and/or technology included in or related to the Base Technology which are not assignable or transferable hereunder or sufficient in scope to cover the Acquired Assets and the Business (as defined below) (collectively, the " Excluded License Agreements " and, together with the Included License Agreements, the " License Agreements" ) shall be listed in Exhibit 1(c) hereto along with the Included License Agreements and, with respect to each such Excluded License Agreement, Seller agrees that (i) within two (2) years of the date of this Agreement or upon Buyer' s exercise of its option to acquire the Division in accordance with the provisions of this Agreement, whichever shall occur sooner, Seller shall, at its own expense,


either negotiate an Included License Agreement with respect to the content of such Excluded License Agreement or develop internally or obtain from an alternate source and under an Included License Agreement substantially equivalent technology for inclusion in the Acquired Assets and assign such Included License to Buyer as an Acquired Asset at no additional charge, provided that any applicable license fees and/or royalties shall be treated in a manner consistent with the treatment of such fees in such Excluded License Agreement and provided further that Buyer and Seller shall mutually agree in the Marketing Agreement (as described in Section 16 below) for the appropriate pass through of such license fees and / or royalties or other appropriate treatment, (ii) in the interim, Seller shall provide, at its own expense, such licenses to the content of each Excluded License Agreement as Buyer, the Division and its customers may require to conduct the Business and (iii) in the event that Buyer determines, within 45 days of the date of this Agreement that Exhibit 1(c) should include the listing of additional licenses, Seller shall reasonably cooperate with Buyer to amend such Exhibit 1(c) and to comply with the provisions of this Section 1(c) with respect to any such additional licenses;


(d) All of Seller' s development and partnership agreements (and all rights and obligations of Seller thereunder) related to the Base Technology, each of which is listed on Exhibit 1(d) hereto, if any (collectively, the " Development Agreements" and, together with the License Agreements, the " Acquired Contracts" );


(e) With respect to the Base Technology, electronic versions (paper version if electronic version not available) of Seller' s (i) source code, whether in print, magnetically stored, or in some other form, and related materials in the possession of or available to Seller, including, but not limited to, comments, flow charts, documentation, and manuals, and implementation specifics (collectively, " Source Code" ), it being understood that Seller' s obligation to deliver actual electronic versions of such Source Code shall be satisfied upon the delivery to Buyer of all versions of such Source Code currently used or relied upon in connection with the development, manufacture, maintenance or distribution of any product or any successor product; provided that Buyer shall have the right to require that Seller deliver, promptly upon Buyer' s request, any prior version or versions of such Source Code in the possession of or available to Seller; (ii) system software which is a part of the Base Technology, except that with respect to system software/build software covered by an Excluded License Agreement, Seller's obligation to Buyer shall be as set forth in 1(c); (iii) build software (package and build tree) except that with respect to build software covered by an Excluded License Agreement, Seller's obligation to Buyer shall be as set forth in 1(c); (iv) release scripts, procedures and documentation; (v) test suites, scripts, procedures and process documentation; (vi) performance documentation, programs and results sets; (vii) product specifications; (viii) functional specifications; (ix) design specifications; and (x) customer service and support documentation and call history (database, if applicable);


(f) Copies of all competitive analysis or business development information for the Base Technology and any correspondence of Seller related thereto; and


(g)

Copies of all marketing and sales materials of Seller for the Base Technology.


For purposes of this Section 1, EMC Corporation shall be deemed to be the acquiror of all such right, title and interest in the Base Technology in North America and EMC (Benelux) B.V., S.e0.r.l. shall be deemed to be the acquiror of all such right, title and interest in the Base Technology everywhere else in the world.


2. Excluded Assets . Notwithstanding the provisions of Section 1, the Acquired Assets shall not include, without limitation, any assets, properties or privileges of Seller not included in the Acquired Assets including without limitation and for purposes of clarification only, the assets listed on Exhibit 2


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hereto and any other part of Seller' s business (the " Excluded Assets" ). Without in any way limiting the foregoing and for clarification purposes only, know how, trade secrets, proprietary information, product documentation, software, methodologies, processes, tools, diagnostic, test and maintenance aids that are not included in the Acquired Assets and are or have been used in connection with the development, licensing, maintenance or distribution of the Other Technology and any other part of Seller' s business shall be considered to be Excluded Assets.


3. Assumed Liabilities . Subject to the terms and conditions of this Agreement, at the Closing, Buyer shall assume and agree to pay, perform, fulfill and discharge the liabilities and obligations associated with the Acquired Assets, if any, which are listed on Exhibit 3 hereto (such liabilities and obligations are hereinafter referred to as the " Assumed Liabilities" ).


4.

Excluded Liabilities .


(a) Notwithstanding the provisions of Section 3, Buyer is not assuming or in any way becoming liable or responsible for any liability of Seller not included in the Assumed Liabilities (collectively, the " Excluded Liabilities" ).


(b) Seller shall retain and be responsible for the performance and discharge of all liabilities and obligations (i) relating to the Excluded Assets or (ii) arising from the ownership of the Acquired Assets prior to the Closing (as defined below).


(c) Seller agrees that Buyer is purchasing the assets debt-free and will reimburse the Buyer for any debt with respect to the Acquired Assets that is not an Assumed Liability.


5. Purchase Price . In consideration of the sale, transfer and delivery by Seller to Buyer of the Acquired Assets and of the other agreements of the parties set forth in this Agreement, and subject to the assumption by Buyer of the Assumed Liabilities, if any, Buyer agrees to pay to Seller an aggregate amount of Thirty Million Dollars ($30,000,000.00) (the " Purchase Price" ) in cash as follows: (i) Twenty Million Dollars ($20,000,000.00) at Closing; (ii) Five Million Dollars ($5,000,000.00) on April 1, 2006; and (iii) Five Million Dollars ($5,000,000.00) on July 1, 2006, with EMC Corporation contributing Nineteen Million Nine Hundred Forty-Three Thousand Dollars ($19,943,000.00) and EMC (Benelux) B.V., S.e0.r.l. contributing Ten Million Fifty-Seven Thousand Dollars ($10,057,000.00) of such aggregate amount. Each payment shall be made by wire transfer of immediately available funds to the account designated by Seller. Seller' s sale of the Acquired Assets constitutes an isolated sale of a non-inventory asset.


6. Closing . The closing (" Closing" ) of the transactions contemplated by this Agreement shall be held at 10:00 A.M. local time at the offices of Buyer, 176 South Street, Hopkinton, Massachusetts as of the Effective Date (the " Closing Date ").


(a)

Deliveries at Closing .


(i)

At the Closing, Seller shall deliver to Buyer the following:


(A)

a duly executed counterpart of this Agreement;


(B) all of the software, product documentation and related marketing material via electronic means;


(C) all of the Acquired Contracts, with such assignments thereof and consents to assignments (as and if permitted by such agreements) as are


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necessary or appropriate to assure Buyer of the full benefit of the same; and


(D) such other instruments of sale, transfer, conveyance and assignment as Buyer shall reasonably request including, without limitation, assignment agreements with respect to all patent, trademark and copyright rights of Seller, if any.


(ii)

At the Closing, Buyer shall deliver to Seller the following:


(A)

a duly executed counterpart of this Agreement;


(B) such other instruments of assumption as Seller may reasonably request; and


(C) the portion of the Purchase Price due at Closing by wire transfer of immediately available funds to the account designated by Seller.


7. Rights of Buyer . Seller hereby constitutes and appoints Buyer the true and lawful attorney of Seller, with full power of substitution, in the name of Seller or Buyer, by, on behalf of and for the benefit of Buyer: (a) to demand and receive from time to time all or any portion of the Acquired Assets and to make endorsements and give receipts and releases for and in respect of the same and any part thereof, (b) to institute, prosecute, compromise and settle any and all actions, litigations (other than litigation against Seller and its affiliates, officers, directors, employees and authorized agents) or governmental or administrative proceedings that Buyer may deem proper in order to collect, assert or enforce any claim, right or title of any kind in or to any Acquired Assets, (c) to defend or compromise any or all actions, litigations or governmental or administrative proceedings in respect of any Acquired Assets, provided, however, that with respect to any claim for which Buyer intends to seek indemnification from Seller under this Agreement, Buyer shall not compromise or settle any such action or litigation without Seller' s prior written consent, which consent shall not be unreasonably withheld, and (d) to do all such acts and things in relation to the matters set forth in the preceding clauses (a) through (c) as Buyer shall reasonably deem appropriate.


8. Further Assurances . Each of Seller and Buyer shall, from time to time after the Closing and at the reasonable request of the other party and without further consideration, execute and deliver such further instrumentation of transfer and assignment or take such other actions as may be reasonably necessary in order to more effectively consummate the transactions contemplated hereby in an effort to vest in Buyer good and valid title to the Acquired Assets and to give full force and effect to the intent of the parties reflected hereby.


9. Representations and Warranties by Seller . Seller represents and warrants to Buyer that the representations and warranties contained in this Section 9 are true, correct and complete as of the Effective Date.


(a) Organization and Standing . Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has full corporate power and authority to conduct its business as presently conducted and as proposed to be conducted by it. Seller has at all times complied with all provisions of its Certificate of Incorporation and By-laws, each as currently in effect, and is not in default under, or in violation of, any such provision.


(b) Authority for Agreement . Seller has full corporate power and authority to execute and deliver this Agreement and to carry out its obligations thereunder. The execution,


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delivery and performance by Seller of this Agreement has been duly authorized by all necessary corporate action of Seller and no other action on the part of Seller is required in connection herewith. This Agreement has been duly executed and delivered by Seller and constitutes the valid and legally binding obligation of Seller. The execution and delivery of this Agreement, the compliance with the provisions hereof by Seller, and the consummation of the transactions contemplated hereby, will not (i) conflict with, result in a breach of, constitute (with or without due notice or lapse of time or both) a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any notice, consent or waiver under the Certificate of Incorporation and By-laws of Seller or under any contract, lease, sublease, sublicense, franchise, permit, indenture, agreement or mortgage for borrowed money, Security Interest or other interest to which Seller is a party or by which Seller is bound or to which its assets are subject, (ii) result in the imposition of any Security Interest upon any assets of Seller or (iii) violate any order, writ, injunction, decree, rule or regulation applicable to Seller, or any of its properties or assets, except in each case, where such conflict, breach, default or other violation would not have a material adverse effect on the ability of Buyer to consummate the transactions contemplated hereby and thereby. For purposes of this Agreement, " Security Interest" means any mortgage, security interest, encumbrance, claim, charge, or other lien (whether arising by contract or by operation of law), other than liens for taxes not yet due.


(c) Title to Acquired Assets . Except as set forth on Exhibit 1(c), Seller owns the Acquired Assets and Seller has and is conveying to Buyer hereunder, upon delivery to Buyer of the instruments of transfer referred to in Section 6, good and valid title to the Acquired Assets. Except as set forth on Exhibit 9(c), none of the Acquired Assets includes any software distributed under a license that requires as a condition of use, modification or distribution of the software that such software or other software distributed with or combined with the software be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making the derivative works or (iii) redistributable at no charge (" Open Source Software" ).


(d) Contracts . Seller has furnished to Buyer a correct and complete copy of each Acquired Contract listed on Exhibits 1(c) and 1(d), if any, and identified thereon what if any consents of any person are required to assign the Acquired Contracts to Buyer. Seller has performed all obligations under the Acquired Contracts required to be performed by it prior to the Closing. Seller is not in breach of any material term or provision of any Acquired Contract. To the knowledge of Seller, there does not exist under any Acquired Contract any event of default, except for any event which has not had and is not reasonably likely to have a material adverse effect on the Acquired Assets, and no claim has been made against Seller alleging any event of default. All Acquired Contracts are in full force and effect and enforceable against each party thereto.


(e) Consents . No consent of any third party is required to be obtained by Seller and no consent, approval, order authorization of, or registration, qualification, designation, declaration or filing with any governmental authority is required in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.


(f) Intellectual Property . All patents, patent applications, copyrights, trade names, trademarks and trademark applications which are owned by or licensed to Seller or in which Seller has an interest that is directly related to the Base Technology (collectively and, together with the know how, trade secrets and proprietary information included in the Base Technology, the " Intellectual Property ") are listed on Exhibit 9(f). All of Seller' s patents and registered trademarks that are directly related to the Base Technology have been duly registered in, filed in or issued by the applicable patent office of each country identified in Exhibit 9(f), and have been properly maintained and renewed in accordance with all applicable laws and regulations of each


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such country. The use of the Intellectual Property contemplated by this Agreement does not require the consent of any other Person except to the extent that any such consent has already been provided by contract or license or except as noted in Exhibit 1(c). Except as noted in Exhibit 1(c), all of Seller' s rights to and interest in the Intellectual Property are freely transferable (except as otherwise provided by law) and are owned exclusively by Seller free and clear of any Security Interests. Except for those items identified in Exhibit 1(c), no other Person has an interest in or right or license to use, or right to acquire or the right to license any other Person to use (whether contingent or otherwise), any Intellectual Property; no claims or demands of any other Person pertaining thereto have been asserted against Seller in writing, and no proceedings have been instituted or are pending or, to the knowledge of Seller, threatened, which challenge Seller' s rights in respect thereof; to the knowledge of Seller, none of the Intellectual Property of Seller is being infringed by another Person, nor are any of them subject to any outstanding order, decree, ruling, charge, injunction, judgment or stipulation; and no claim has been made, or to the knowledge of Seller, is threatened, charging Seller with infringement of any adversely held patent, trademark, trade secret or copyright or other intellectual property. Seller has and is transferring to Buyer valid licenses for all third party software and technology included in the Acquired Assets. All personnel, including employees, agents, consultants and contractors, who have contributed to or participated in the conception and development of any part of Seller' s Intellectual Property rights on behalf of Seller have executed confidentiality, non-disclosure and intellectual property ownership agreements, representative copies of which have, or will be, furnished to Buyer. No current or former partner, director, officer, employee, consultant, independent contractor or affiliate of Seller (or any predecessor in interest) will, after giving effect to the transactions contemplated herein, own or retain any rights in or to any Intellectual Property. No security measures have been implemented in the software of Seller included in the Acquired Assets which would impair operation thereof, except such measures as have been disclosed to Buyer. The Base Technology does not contain any device or feature designed to disrupt, disable, or otherwise impair the functioning of any such software.


(g) Trade Secrets and Customer Lists . Seller has the right to use, free and clear of any claims or rights of any other Person, all trade secrets, customer lists and secret processes and know-how included in the Acquired Assets required for or used in the marketing of the Base Technology. With regard to the Base Technology and to the knowledge of Seller, Seller is not in any way making an unlawful or wrongful use of any confidential information, know-how, or trade secrets of any other Person.


(h) Litigation . There is no litigation or governmental or administrative action, suit, proceeding or investigation (domestic or foreign) pending or, to the knowledge of Seller, threatened against Seller and directly related to the Base Technology, Source Code or Acquired Contracts. No claims or demands of any other Person pertaining thereto have been asserted against Seller in writing, and no proceedings have been instituted or are pending or, to the knowledge of Seller, threatened, which challenge Seller' s rights in respect thereof.


(i) Sufficiency . Seller hereby represents and warrants that this Agreement is sufficient to transfer and convey title to the Acquired Assets to Buyer under applicable law.


(j) Export Licenses. Seller acknowledges that the Acquired Assets are subject to the export jurisdiction of the United States, specifically the Export Administration Regulations and Export Control Classification Number (ECCN) 5D002. Seller represents that, to Seller' s knowledge, it has complied with all applicable international laws and regulations, including, without limitation, the US Export Administration regulations in the development, use and marketing of the Acquired Assets and in its business relations with third parties concerning the Acquired Assets


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(k) EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 9, THE ACQUIRED ASSETS AND THE OTHER TECHNOLOGY LICENSE PROVIDED BY THIS AGREEMENT ARE PROVIDED " AS IS" , WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, BY SELLER OR ITS AFFILIATES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLETENESS, ACCURACY, AVAILABILITY, TITLE, NON-INFRINGEMENT, TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. THE ENTIRE RISK AS TO PERFORMANCE OF THE ACQUIRED ASSETS AND THE OTHER TECHNOLOGY LICENSE ARE WITH BUYER AND THERE IS NO GUARANTEE THAT THE ACQUIRED ASSETS AND THE OTHER TECHNOLOGY LICENSE PROVIDED UNDER THE TERMS OF THIS AGREEMENT WILL MEET THE REQUIREMENTS OF BUYER, BE ERROR FREE, OR OPERATE WITHOUT INTERRUPTION.


10. Representations and Warranties by Buyer . Buyer represents and warrants to Seller that, to Buyer' s actual knowledge, the representations and warranties contained in this Section 10 are true, correct and complete as of the Effective Date.


(a) Organization and Standing . Buyer is a corporation duly organized, validly existing and in good standing under the laws of the Commonwealth of Massachusetts and has full corporate power and authority to conduct its business as presently conducted. Buyer is not in default under, or in violation of, any provision of its Articles of Organization or Restated By-laws, each as currently in effect.


(b) Authority for Agreement . Buyer has full corporate power and authority to execute and deliver this Agreement and to carry out its obligations hereunder. The execution, delivery and performance by Buyer of this Agreement has been duly authorized by all necessary corporate action of Buyer and no other action on the part of Buyer is required in connection herewith. This Agreement has been duly executed and delivered by Buyer and constitutes the valid and legally binding obligation of Buyer. The execution and delivery of this Agreement, the compliance with the provisions hereof by Buyer, and the consummation of the transactions contemplated hereby, will not (i) conflict with, result in a breach of, constitute (with or without due notice or lapse of time or both) a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any notice, consent or waiver under the Articles of Organization or Restated By-laws of Buyer or under any contract, lease, sublease, sublicense, franchise, permit, indenture, agreement or mortgage for borrowed money, Security Interest or other interest to which Buyer is a party or by which Buyer is bound or to which its assets are subject, (ii) result in the imposition of any Security Interest upon any assets of Buyer, or (iii) violate any order, writ, injunction, decree, rule or regulation applicable to Buyer, or any of its properties or assets, except in each case, where such conflict, breach, default or other violation would not have a material adverse effect on the ability of Seller to consummate the transactions contemplated hereby.


11.

Division; Advisory Board; Additional Development .


(a) As soon as practicable after the Effective Date, Seller hereby agrees to organize and constitute a division of Seller (the " Division" ) in which all operations of Seller related to the Business shall be operated and managed. During the term of this Agreement, the Division shall be the sole vehicle for activities of the Seller relating to the Business. The Division shall develop the Business in accordance with the business plan and roadmap (the " Plan" ) attached as Exhibit 11(a) (which shall be reviewed by an independent third party mutually selected by Buyer and


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Seller as directed by the Advisory Board with respect to those matters identified on Exhibit 11(a)). Seller shall contribute to the Division such assets, including, without limitation, facilities, labs and equipment, and other interests and rights as Seller and Buyer shall mutually agree within thirty (30) days after the Effective Date, as well as such other assets as the Advisory Board shall recommend or require from time to time. Seller agrees that it shall fund research and development efforts within the Division for the Business in accordance with the Plan and at the direction of the Advisory Board (as such terms are defined below). Such assets shall constitute the assets, interests and rights that are necessary or advisable to develop, operate, maintain and grow the Business.


(b) At the Effective Date, Seller shall assign not fewer than 100 research and development associates (each of whom is identified on Exhibit 11(b)) (the " Assigned Employees" ) to work full time on the development of the Business within the Division, which number of employees shall be maintained as full-time employees of the Division during the term of this Agreement from the Effective Date until (i) s ...