General Assignment and Assumption Agreement - Adaptec Inc. and Roxio Inc.
GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
BETWEEN
ADAPTEC, INC.
AND
ROXIO, INC.
NOVEMBER __, 2000
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TABLE OF CONTENTS
PAGE
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ARTICLE I CONTRIBUTION AND ASSUMPTION.................................1
Section 1.1 Contribution of Assets and Assumption of
Liabilities........................................1
Section 1.2 Roxio Assets.........................................2
Section 1.3 Roxio Liabilities....................................3
Section 1.4 Methods of Transfer and Assumption...................5
Section 1.5 Governmental Approvals and Consents for Transfer
of Roxio Assets....................................6
Section 1.6 Nonrecurring Costs and Expenses......................7
Section 1.7 Novation of Assumed Roxio Liabilities................7
ARTICLE II LITIGATION.................................................8
Section 2.1 Allocation...........................................8
Section 2.2 Cooperation..........................................9
ARTICLE III DISPUTE RESOLUTION........................................9
Section 3.1 Negotiation..........................................9
Section 3.2 Proceedings.........................................10
Section 3.3 Continuity of Service and Performance...............10
ARTICLE IV MISCELLANEOUS.............................................10
Section 4.1 Limitation of Liability.............................10
Section 4.2 Entire Agreement....................................10
Section 4.3 Governing Law.......................................10
Section 4.4 Notices.............................................10
Section 4.5 Counterparts........................................11
Section 4.6 Binding Effect; Assignment..........................12
Section 4.7 Severability........................................12
Section 4.8 Waiver of Breach....................................12
Section 4.9 Amendment and Execution.............................12
Section 4.10 Authority...........................................12
Section 4.11 Descriptive Headings................................12
Section 4.12 Gender and Number...................................13
Section 4.13 Additional Assurances...............................13
Section 4.14 Force Majeure.......................................13
Section 4.15 Conflicting Agreements..............................13
ARTICLE V DEFINITIONS................................................13
Section 5.1 Action..............................................13
Section 5.2 Adaptec Group.......................................13
Section 5.3 Ancillary Agreement.................................13
Section 5.4 Assets..............................................13
Section 5.5 Consents............................................15
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Section 5.6 Contracts...........................................15
Section 5.7 Delayed Transfer Assets.............................15
Section 5.8 Delayed Transfer Liabilities........................15
Section 5.9 Disputes............................................15
Section 5.10 Distribution........................................15
Section 5.11 Distribution Date...................................15
Section 5.12 Environmental Actions...............................15
Section 5.13 Excluded Assets.....................................16
Section 5.14 Excluded Liabilities................................16
Section 5.15 GAAP................................................16
Section 5.16 Governmental Approvals..............................16
Section 5.17 Governmental Authority..............................16
Section 5.18 Indemnification and Insurance Matters Agreement.....16
Section 5.19 Insurance Policies..................................16
Section 5.20 Insured Roxio Liability.............................16
Section 5.21 Intellectual Property...............................16
Section 5.22 IPO.................................................16
Section 5.23 IPO Registration Statement..........................17
Section 5.24 Liabilities.........................................17
Section 5.25 Litigation Disclosure Letter........................17
Section 5.26 OFLs................................................17
Section 5.27 Person..............................................17
Section 5.28 Retained Payables...................................17
Section 5.29 Retained Receivables................................18
Section 5.30 Roxio Assets........................................18
Section 5.31 Roxio Balance Sheet.................................18
Section 5.32 Roxio Business......................................18
Section 5.33 Roxio Contingent Gain...............................18
Section 5.34 Roxio Contingent Liability..........................18
Section 5.35 Roxio Contracts.....................................19
Section 5.36 Roxio Group.........................................20
Section 5.37 Roxio Liabilities...................................20
Section 5.38 Roxio Pro Forma Balance Sheet.......................20
Section 5.39 Security Interest...................................20
Section 5.40 Separation..........................................20
Section 5.41 Separation Agreement................................20
Section 5.42 Separation Date.....................................20
Section 5.43 Subsidiary..........................................20
Section 5.44 Taxes...............................................20
Section 5.45 Tax Sharing Agreement...............................20
Section 5.46 Transferred Subsidiary..............................20
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SCHEDULES
SCHEDULE 1.1(c) Delayed Transfer Assets and Liabilities
SCHEDULE 1.2(a)(x) Specific Roxio Assets to be Transferred
SCHEDULE 1.2(b)(i) Excluded Assets
SCHEDULE 1.3(a)(vi) Divested Businesses Which Contain Liabilities to be
Transferred to Roxio
SCHEDULE 1.3(a)(vii) Specific Roxio Liabilities
SCHEDULE 1.3(b)(i) Excluded Liabilities
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GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
This General Assignment and Assumption Agreement (this "AGREEMENT") is
entered into on November ___, 2000 between Adaptec, Inc., a Delaware
corporation ("ADAPTEC"), and Roxio, Inc., a Delaware corporation ("ROXIO").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in ARTICLE V hereof. Adaptec and Roxio are
sometimes referred to herein collectively as the "party" or individually as the
"parties."
RECITALS
WHEREAS, Adaptec hereby and by certain other instruments of even date
herewith transfers or will transfer to Roxio effective as of the Separation
Date, substantially all of the business and assets of the Roxio Business owned
by Adaptec in accordance with the Separation Agreement. It is the intent of the
parties hereto, by this Agreement and the other agreements and instruments
provided for in the Separation Agreement, that Adaptec and its Subsidiaries
convey to Roxio and its Subsidiaries substantially all of the business and
assets of the Roxio Business.
WHEREAS, it is further intended between the parties that Roxio assume
certain of the liabilities related to the Roxio Business, as provided in this
Agreement, the Separation Agreement or the other agreements and instruments
provided for in the Separation Agreement.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
CONTRIBUTION AND ASSUMPTION
SECTION 1.1 CONTRIBUTION OF ASSETS AND ASSUMPTION OF LIABILITIES.
(a) TRANSFER OF ASSETS. Effective on the Separation Date, Adaptec
hereby assigns, transfers, conveys and delivers to Roxio, and Roxio hereby
accepts from Adaptec, all of Adaptec's right, title and interest in all Roxio
Assets, other than the Delayed Transfer Assets; PROVIDED, HOWEVER, that any
Roxio Assets that are specifically assigned or transferred pursuant to another
Ancillary Agreement shall not be assigned or transferred pursuant to this
SECTION 1.1(a).
(b) ASSUMPTION OF LIABILITIES. Effective on the Separation Date,
Roxio hereby assumes and agrees faithfully to perform and fulfill, all the Roxio
Liabilities, other than the Delayed Transfer Liabilities, in accordance with
their respective terms. Roxio shall be responsible for all Roxio Liabilities,
regardless of when or where such Liabilities arose or arise, or whether the
facts on which they are based occurred prior to, on or after the date hereof,
regardless of where or against whom such Liabilities are asserted or determined
(including any Roxio Liabilities arising out of claims made by Adaptec's or
Roxio's respective directors, officers, consultants, independent contractors,
employees or agents against any member of the Adaptec Group or the Roxio Group)
or whether
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asserted or determined prior to the date hereof, and regardless of whether
arising from or alleged to arise from negligence, recklessness, violation of
law, fraud or misrepresentation by any member of the Adaptec Group or the Roxio
Group or any of their respective directors, officers, employees or agents.
(c) DELAYED TRANSFER ASSETS AND LIABILITIES. Each of the parties
hereto agrees that the Delayed Transfer Assets will be assigned, transferred,
conveyed and delivered, and the Delayed Transfer Liabilities will be assumed, in
accordance with the terms of the agreements that provide for such assignment,
transfer, conveyance and delivery, or such assumption, after the date of this
Agreement or as otherwise set forth on SCHEDULE 1.1(c). Following such
assignment, transfer, conveyance and delivery of any Delayed Transfer Asset, or
the assumption of any Delayed Transfer Liability, the applicable Delayed
Transfer Asset or Delayed Transfer Liability shall be treated for all purposes
of this Agreement, the Separation Agreement and the other Ancillary Agreements
as a Roxio Asset or as a Roxio Liability, as the case may be.
(d) MISALLOCATED ASSETS. In the event that at any time or from
time to time (whether prior to or after the Separation Date), any party hereto
(or any member of the Adaptec Group or Roxio Group) shall receive or otherwise
possess any Asset that is allocated to any other Person pursuant to this
Agreement or any other Ancillary Agreement, such party shall promptly transfer,
or cause to be transferred, such Asset to the Person so entitled thereto. Prior
to any such transfer, the Person receiving or possessing such Asset shall hold
such Asset in trust for any such other Person entitled to such Asset.
(e) INDEMNIFICATION Agreement. The assignment and assumption of
liabilities described in this Section 1.1 is not intended to alter or supercede
either parties' obligation, if any, under Indemnification and Insurance Matters
Agreement between the parties of even date with respect to such liabilities.
SECTION 1.2 ROXIO ASSETS.
(a) INCLUDED ASSETS. For purposes of this Agreement, "ROXIO
ASSETS" shall mean (without duplication) the following Assets, except as
otherwise provided for in any Ancillary Agreement or other express agreement of
the parties:
(i) all Assets reflected in the Roxio Balance Sheet,
subject to any dispositions of such Assets subsequent to the date of the Roxio
Balance Sheet;
(ii) all Assets that have been written off, expensed or
fully depreciated such that, had they not been written off, expensed or fully
depreciated, such Assets would have been reflected in the Roxio Balance Sheet in
accordance with the principles and accounting policies under which the Roxio
Balance Sheet was prepared;
(iii) all Assets acquired by Adaptec or its Subsidiaries
after the date of the Roxio Balance Sheet that would be reflected in a
consolidated balance sheet of Roxio as of the Separation
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Date if such consolidated balance sheet was prepared using the same principles
and accounting policies under which the Roxio Balance Sheet was prepared;
(iv) all Assets that are used primarily by the Roxio
Business at the Separation Date but improperly were not reflected in the Roxio
Balance Sheet; PROVIDED, HOWEVER, that no such Asset shall be a Roxio Asset
unless a member of the Roxio Group, on or before the first anniversary of the
Distribution Date, has given a member of the Adaptec Group written notice that
such Asset is a Roxio Asset;
(v) all Roxio Contingent Gains;
(vi) all Roxio Contracts;
(vii) all issued and outstanding stock, investments or
similar interests of Adaptec and the Subsidiaries of Adaptec listed on SCHEDULE
2.1(b) of the Separation Agreement;
(viii) all computers, desks, equipment (including equipment
used for research and development) and other Assets used or managed primarily by
employees of Adaptec that will become employees of Roxio in connection with the
Separation; and
(ix) to the extent permitted by law and subject to the
Indemnification and Insurance Matters Agreement, all rights of any member of the
Roxio Group under any of Adaptec's Insurance Policies or other insurance
policies issued by Persons unaffiliated with Adaptec; and
(x) all Assets that are expressly contemplated by this
Agreement, the Separation Agreement or any other Ancillary Agreement (or
SCHEDULE 1.2(a)(x) or any other Schedule hereto or thereto) as Assets to be
transferred to Roxio or any other member of the Roxio Group.
Notwithstanding the foregoing, any Assets held directly or indirectly by any
Transferred Subsidiary shall not be assigned or transferred pursuant to SECTION
1.1(a), and the Roxio Assets shall not in any event include the Excluded Assets
referred to in SECTION 1.2(b) below.
(b) EXCLUDED ASSETS. For the purposes of this Agreement, "EXCLUDED
ASSETS" shall mean:
(i) the Assets listed or described on SCHEDULE 1.2(b)(i);
(ii) the Retained Receivables; and
(iii) any Assets that are expressly contemplated by the
Separation Agreement, this Agreement or any other Ancillary Agreement (or the
Schedules hereto or thereto) as Assets to be retained by Adaptec or any other
member of the Adaptec Group.
SECTION 1.3 ROXIO LIABILITIES.
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(a) INCLUDED LIABILITIES. For the purposes of this Agreement,
"ROXIO LIABILITIES" shall mean (without duplication) the following Liabilities,
except as otherwise provided for in any Ancillary Agreement or other express
agreement of the parties:
(i) all Liabilities reflected in the Roxio Balance Sheet,
to the extent such Liabilities have not been satisfied or discharged subsequent
to the date of the Roxio Balance Sheet;
(ii) all Liabilities of Adaptec or its Subsidiaries that
arise after the date of the Roxio Balance Sheet that would be reflected in a
consolidated balance sheet of Roxio dated as of the Separation Date if such
consolidated balance sheet was prepared using the same principles and accounting
policies under which the Roxio Balance Sheet was prepared;
(iii) all Liabilities that are related primarily to the
Roxio Business at the Separation Date but improperly were not reflected in the
Roxio Balance Sheet; PROVIDED, HOWEVER, that no Liability shall be a Roxio
Liability unless a member of the Adaptec Group, on or before the first
anniversary of the Distribution Date, has given a member of the Roxio Group
written notice that such Liability is a Roxio Liability;
(iv) all Roxio Contingent Liabilities;
(v) all Liabilities (other than Liabilities for Taxes),
whether arising before, on or after the Separation Date, primarily relating to,
arising out of or resulting from:
(1) the operation of the Roxio Business, as
conducted at any time prior to, on or after the Separation Date (including any
Liability relating to, arising out of or resulting from any act or failure to
act by any director, officer, employee, agent or representative (whether or not
such act or failure to act is or was within such Person's authority));
(2) the operation of any business conducted by
any member of the Roxio Group at any time after the Separation Date (including
any Liability relating to, arising out of or resulting from any act or failure
to act by any director, officer, employee, agent or representative (whether or
not such act or failure to act is or was within such Person's authority)); or
(3) any Roxio Assets;
(vi) all Liabilities relating to, arising out of or
resulting from any of the terminated, divested or discontinued businesses and
operations listed or described on SCHEDULE 1.3(a)(vi); and
(vii) all Liabilities that are expressly contemplated by
this Agreement, SCHEDULE 1.3(a)(vii), the Separation Agreement or any other
Ancillary Agreement (or the Schedules hereto or thereto) as Liabilities to be
assumed by Roxio or any other member of the Roxio Group; and
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(viii) all obligations and Liabilities of any member of the
Roxio Group under the Separation Agreement, this Agreement or any of the other
Ancillary Agreements.
Notwithstanding the foregoing, (i) any Liabilities of Transferred Subsidiaries
shall not be assumed pursuant to SECTION 1.2(a), and (ii) the Roxio Liabilities
shall not include the Excluded Liabilities referred to in SECTION 1.3(b) below.
(b) EXCLUDED LIABILITIES. For the purposes of this Agreement,
"EXCLUDED LIABILITIES" shall mean:
(i) all Liabilities listed or described in SCHEDULE
1.3(b)(i);
(ii) the Retained Payables;
(iii) all Insured Roxio Liabilities;
(iv) any obligations of CG1 GmbH to Adaptec Mfg. (S)
Pte. Ltd. under the Loan Agreements between such
parties, dated July 6, 1999 and November 3, 1999.
(v) all Environmental Actions set forth in SECTION 1.4(b)
of the Indemnification and Insurance Matters Agreement; and
(vi) all Liabilities that are expressly contemplated by
this Agreement, the Separation Agreement or any other Ancillary Agreement (or
the Schedules hereto or thereto) as Liabilities to be retained or assumed by
Adaptec or any other member of the Adaptec Group, and all agreements and
obligations of any member of the Adaptec Group under the Separation Agreement,
this Agreement or any other Ancillary Agreement.
SECTION 1.4 METHODS OF TRANSFER AND ASSUMPTION.
(a) TERMS OF OTHER ANCILLARY AGREEMENTS GOVERN. The parties shall
enter into the other Ancillary Agreements, on or about the date of this
Agreement. To the extent that the transfer of any Roxio Asset or the assumption
of any Roxio Liability is expressly provided for by the terms of any other
Ancillary Agreement, the terms of such other Ancillary Agreement shall effect,
and determine the manner of, such transfer or assumption. It is the intent of
the parties that pursuant to SECTION 1.1, SECTION 1.2, and SECTION 1.3, the
transfer and assumption of all other Roxio Assets and Roxio Liabilities, other
than Delayed Transfer Assets and Delayed Transfer Liabilities, shall be made
effective as of the Separation Date; PROVIDED, HOWEVER, that circumstances in
various jurisdictions outside the United States may require the transfer of
certain Roxio Assets and the assumption of certain Roxio Liabilities to occur in
such other manner and at such other time as the parties shall agree, as provided
in SECTION 1.5(b) hereof.
(b) MISTAKEN ASSIGNMENTS AND ASSUMPTIONS. In addition to those
transfers and assumptions accurately identified and designated by the parties to
take place but which the parties are not able to effect prior to the Separation
Date, there may exist (i) Assets that the parties discover were, contrary to the
agreements between the parties, by mistake or omission, transferred to Roxio or
retained by Adaptec or (ii) Liabilities that the parties discover were, contrary
to the agreements between the parties, by mistake or omission, assumed by Roxio
or not assumed by Roxio. The parties shall
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cooperate in good faith to effect the transfer or re-transfer of such Assets,
and/or the assumption or re-assumption of such Liabilities, to or by the
appropriate party and shall not use the determination that remedial actions need
to be taken to alter the original intent of the parties hereto with respect to
the Assets to be transferred to or Liabilities to be assumed by Roxio. Each
party shall reimburse the other or make other financial adjustments (e.g.,
without limitation, cash reserves) or other adjustments to remedy any improper
transfer or failure to transfer any Asset or any improper assumption or failure
to assume any Liability.
(c) TRANSFER OF ASSETS AND LIABILITIES NOT INCLUDED IN ROXIO
ASSETS AND ROXIO LIABILITIES. In the event the parties discover Assets and
Liabilities that relate primarily to the Roxio Business but do not constitute
Roxio Assets under SECTION 1.2 or Roxio Liabilities under SECTION 1.3, the
parties shall cooperate in good faith to effect the transfer of such Assets at
book value, or the assumption of such Liabilities, to Roxio or its Subsidiaries
and shall not use the determination of remedial actions contemplated in the
Separation Agreement to alter the original intent of the parties hereto with
respect to the Assets to be transferred to or Liabilities to be assumed by
Roxio. Each party shall reimburse the other or make other financial adjustments
(e.g., without limitation, cash reserves) or other adjustments to remedy any
improper transfer or failure to transfer any Asset or any improper assumption or
failure to assume any Liability.
(d) DOCUMENTS RELATING TO OTHER TRANSFERS OF ASSETS AND ASSUMPTION
OF LIABILITIES. In furtherance of the assignment, transfer, conveyance and
delivery of Roxio Assets and the assumption of Roxio Liabilities set forth in
SECTION 1.4 (a), (b) and (c) and certain other Ancillary Agreements,
simultaneously with the execution and delivery hereof or as promptly as
practicable thereafter, (i) the members of the Adaptec Group shall execute and
deliver such bills of sale, stock powers, certificates of title, assignments of
contracts and other instruments of transfer, conveyance and assignment as and to
the extent necessary to evidence the transfer, conveyance and assignment of all
of Adaptec's and its Subsidiaries' right, title and interest in and to the Roxio
Assets to Roxio and (ii) Roxio shall execute and deliver, to Adaptec and its
Subsidiaries such bills of sale, stock powers, certificates of title,
assumptions of contracts and other instruments of assumption as and to the
extent necessary to evidence the valid and effective assumption of the Roxio
Liabilities by Roxio.
SECTION 1.5 GOVERNMENTAL APPROVALS AND CONSENTS FOR TRANSFER OF ROXIO
ASSETS.
(a) TRANSFER IN VIOLATION OF LAWS. If and to the extent that the
valid, complete and perfected transfer assignment or novation to the Roxio Group
of any Roxio Assets would be a violation of applicable laws or require any
Consent or Governmental Approval in connection with the Separation, the IPO or
the Distribution, then, unless Adaptec shall otherwise determine, the transfer,
assignment or novation to the Roxio Group, as the case may be, any of such Roxio
Asset automatically shall be deemed deferred and any such purported transfer,
assignment or novation shall be null and void until such time as all legal
impediments are removed and/or such Consents or Governmental Approvals have been
obtained. Notwithstanding the foregoing, any such Asset shall still be deemed a
Roxio Asset for purposes of determining whether any Liability is a Roxio
Liability; PROVIDED, HOWEVER, that if any such Consent or Governmental Approval
has not been obtained within six months of the Distribution Date, the parties
will use their reasonable commercial efforts to
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achieve an alternative solution in accordance with the parties' intentions. If
any such Consent shall not be obtained, Adaptec shall cooperate with Roxio in
any reasonable arrangement designed to provide for Roxio the benefits intended
to be assigned to Roxio under the relevant contract, license or other
instrument, including enforcement at the cost and for the account of Roxio of
any and all rights of Adaptec against the other party thereto arising out of the
breach or cancellation thereof by such other party or otherwise.
(b) TRANSFERS NOT CONSUMMATED PRIOR TO SEPARATION DATE. If the
transfer, assignment or novation of any Assets intended to be transferred or
assigned hereunder is not consummated prior to or on the Separation Date,
whether as a result of the provisions of SECTION 1.5(a) or for any other reason,
then the Person retaining such Asset shall thereafter hold such Asset for the
use and benefit, insofar as reasonably possible, of the Person entitled thereto
(at the expense of the Person entitled thereto). In addition, the Person
retaining such Asset shall take such other actions as may be reasonably
requested by the Person to whom such Asset is to be transferred in order to
place such Person, insofar as reasonably possible, in the same position as if
such Asset had been transferred as contemplated hereby and so that all the
benefits and burdens relating to such Roxio Assets, including possession, use,
risk of loss, potential for gain, and dominion, control and command over such
Assets, are to inure from and after the Separation Date to the Roxio Group. If
and when the Consents and/or Governmental Approvals, the absence of which caused
the deferral of transfer of any Asset pursuant to SECTION 1.5(a), are obtained,
the transfer of the applicable Asset shall be effected in accordance with the
terms of this Agreement and/or the applicable Ancillary Agreement.
(c) EXPENSES. The Person retaining an Asset due to the deferral of
the transfer of such Asset shall not be obligated, in connection with the
foregoing, to expend any money unless the necessary funds are advanced by the
Person entitled to the Asset, other than reasonable out-of-pocket expenses,
attorneys' fees and recording or similar fees, all of which shall be promptly
reimbursed by the Person entitled to such Asset.
SECTION 1.6 NONRECURRING COSTS AND EXPENSES. Notwithstanding anything
herein to the contrary, any nonrecurring costs and expenses incurred by the
parties hereto to effect the transactions contemplated hereby which are not
allocated pursuant to the terms of the Separation Agreement, this Agreement or
any other Ancillary Agreement shall be the responsibility of the party which
incurs such costs and expenses.
SECTION 1.7 NOVATION OF ASSUMED ROXIO LIABILITIES.
(a) REASONABLE COMMERCIAL EFFORTS. Each of Adaptec and Roxio, at
the request of the other, shall use their reasonable commercial efforts to
obtain, or to cause to be obtained, any Consent, Government Approval,
substitution or amendment required to effect a novation of (including with
respect to any federal government contract) or assign all rights and obligations
under agreements, leases, licenses and other obligations or Liabilities
(including Roxio OFLs) of any nature whatsoever that constitute Roxio
Liabilities or to obtain in writing the unconditional release of all parties to
such arrangements other than any member of the Roxio Group, so that, in any such
case, Roxio and its Subsidiaries will be solely responsible for such
Liabilities; PROVIDED, HOWEVER, that neither Adaptec, Roxio nor their
Subsidiaries shall be obligated to pay any consideration
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therefor to any third party from whom such Consents, Government Approvals,
substitutions and amendments are requested.
(b) INABILITY TO OBTAIN NOVATION. If Adaptec or Roxio is unable to
obtain, or to cause to be obtained, any such required Consent, Government
Approval, release, substitution or amendment, the applicable member of the
Adaptec Group shall continue to be bound by such agreements, leases, licenses
and other obligations and, unless not permitted by law or the terms thereof
(except to the extent expressly set forth in this Agreement, the Separation
Agreement or any other Ancillary Agreement), Roxio shall, as agent or
subcontractor for Adaptec or such other Person, as the case may be, pay, perform
and discharge fully, or cause to be paid, transferred or discharged all the
obligations or other Liabilities of Adaptec or such other Person, as the case
may be, thereunder from and after the date hereof. Adaptec shall, without
further consideration, pay and remit, or cause to be paid or remitted, to Roxio
or its appropriate Subsidiary promptly all money, rights and other consideration
received by it or any member of its respective Group in respect of such
performance (unless any such consideration is an Excluded Asset). If and when
any such Consent, Government Approval, release, substitution or amendment shall
be obtained or such agreement, lease, license or other rights or obligations
shall otherwise become assignable or able to be novated, Adaptec shall
thereafter assign, or cause to be assigned, all its rights, obligations and
other Liabilities thereunder or any rights or obligations of any member of its
respective Group to Roxio without payment of further consideration and Roxio
shall, without the payment of any further consideration, assume such rights and
obligations.
ARTICLE II
LITIGATION
SECTION 2.1 ALLOCATION.
(a) LITIGATION TO BE TRANSFERRED TO ROXIO. Notwithstanding any
contrary provisions in the provisions of the Indemnification and Insurance
Matters Agreement, on the Separation Date, the responsibilities for management
of the litigation identified in SECTION 2.1(a) of a litigation disclosure letter
(the "LITIGATION DISCLOSURE LETTER"), which will be delivered by Adaptec to
Roxio on the Separation Date, shall be transferred in their entirety from
Adaptec and its Subsidiaries to Roxio and its Subsidiaries. As of the Separation
Date and thereafter, Roxio shall manage the defense of this litigation and shall
cause its applicable Subsidiaries to do the same. Adaptec and its Subsidiaries
must first obtain the prior consent of Roxio or its applicable Subsidiary for
any action taken subsequent to the Separation Date in connection with the
litigation identified in the Litigation Disclosure Letter, which consent cannot
be unreasonably withheld or delayed. All other matters relating to such
litigation, including but not limited to indemnification for such claims, shall
be governed by the provisions of the Indemnification and Insurance Matters
Agreement.
(b) LITIGATION TO BE DEFENDED BY ADAPTEC AT ROXIO'S EXPENSE.
Notwithstanding any contrary provisions in the Indemnification and Insurance
Matters Agreement, Adaptec shall defend, and shall cause its applicable
Subsidiaries to defend, the litigation identified in SECTION 2.1(b) of the
Litigation Disclosure Letter. All other matters relating to such litigation,
including but not limited to
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indemnification for such claims, shall be governed by the provisions of the
Indemnification and Insurance Matters Agreement.
(c) ALL OTHER LITIGATION. All other litigation outstanding at the
Separation Date not included in the Litigation Disclosure Letter shall remain
with Adaptec, and Roxio shall have no liability in connection with, or
responsibility for defending, such litigation.
SECTION 2.2 COOPERATION. Adaptec and Roxio and their respective
Subsidiaries shall cooperate with each other in the defense of any litigation
covered under this ARTICLE II and afford to each other reasonable access upon
reasonable advance notice to witnesses and information (other than information
protected from disclosure by applicable privileges) that is reasonably required
to defend this litigation as set forth in SECTION 5.3 of the Separation
Agreement. The foregoing agreement to cooperate includes, but is not limited to,
an obligation to provide access to qualified assistance to provide information,
witnesses and documents to respond to discovery requests in specific lawsuits.
In such cases, cooperation shall be timely so that the party responding to
discovery may meet all court-imposed deadlines. The party requesting information
shall reimburse the party providing information consistent with the terms of
SECTION 5.3 of the Separation Agreement. The obligations set forth in this
paragraph are more clearly defined in SECTION 5.3 of the Separation Agreement,
to which reference is hereby made.
ARTICLE III
DISPUTE RESOLUTION
Resolution of any and all Disputes arising from or in connection with
this Agreement, shall be exclusively governed by and settled in accordance with
the provisions of this ARTICLE III.
SECTION 3.1 NEGOTIATION. The parties shall make a good faith attempt
to resolve any Dispute arising out of or relating to this Agreement through
informal negotiation between appropriate representatives from each of Adaptec
and Roxio. If at any time either party feels that such negotiations are not
leading to a resolution of the Dispute, such party may send a notice to the
other party describing the Dispute and requesting a meeting of the senior
executives from each party. Within ten (10) business days after such notice
is given, each party shall select appropriate senior executives (e.g.,
director or V.P. level) of each party who shall have the authority to resolve
the matter and shall meet to attempt in good faith to negotiate a resolution
of the Dispute prior to pursuing other available remedies. During the course
of negotiations under this SECTION 3.1, all reasonable requests made by one
party to the other for information, including requests for copies of relevant
documents, will be honored. The specific format for such negotiations will be
left to the discretion of the designated negotiating senior executives but
may include the preparation of agreed upon statements of fact or written
statements of position furnished to the other party. In the event that any
Dispute arising out of or related to this Agreement is not settled by the
parties within thirty (30) days after the first meeting of the negotiating
senior executives, either party may commence litigation with respect to the
Dispute. However, except as provided below in SECTION 3.2, neither party
shall commence litigation against the other party to resolve the Dispute (i)
until the parties try in good faith to settle the Dispute by negotiation for
at least thirty (30) days after the first meeting of
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the negotiating senior executives or (ii) until forty (40) days after notice
of a Dispute is given by either party to the other party, whichever occurs
first.
SECTION 3.2 PROCEEDINGS. Any Dispute regarding the following is not
required to be negotiated prior to seeking relief from a court of competent
jurisdiction: breach of any obligation of confidentiality; infringement,
misappropriation, or misuse of any intellectual property right; or any other
claim where interim relief from the court is sought to prevent serious and
irreparable injury to a party. However, the parties shall make a good faith
effort to negotiate such Dispute, according to SECTION 3.1, while such court
action is pending.
SECTION 3.3 CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise
agreed in writing, the parties will continue to provide service and honor all
other commitments under this Agreement and each Ancillary Agreement during the
course of dispute resolution pursuant to the provisions of this ARTICLE III with
respect to all matters not subject to such dispute, controversy or claim.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY OR
ITS SUBSIDIARIES BE LIABLE TO THE OTHER PARTY OR ITS SUBSIDIARIES FOR ANY
SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST
PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE)
ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SECTION 4.2 ENTIRE AGREEMENT. This Agreement, the Master Separation and
Distribution Agreement, the other Ancillary Agreements and the Exhibits and
Schedules referenced or attached hereto and thereto, constitute the entire
agreement between the parties with respect to the subject matter hereof and
shall supersede all prior written and oral and all contemporaneous oral
agreements and understandings with respect to the subject matter hereof.
SECTION 4.3 GOVERNING LAW. This Agreement shall be construed in
accordance with and all Disputes hereunder shall be governed by the laws of the
State of California, excluding its conflict of law rules and the United Nations
Convention on Contracts for the International Sale of Goods. The Superior Court
of Santa Clara County and/or the United States District Court for the Northern
District of California, San Jose Division, shall have jurisdiction and venue
over all Disputes between the parties that are permitted to be brought in a
court of law pursuant to SECTION 3.2 above.
SECTION 4.4 NOTICES. Any notice, demand, offer, request or other
communication required or permitted to be given by either party pursuant to the
terms of this Agreement shall be in writing and shall be deemed effectively
given the earlier of (i) when received, (ii) when delivered personally, (iii)
one (1) Business Day after being delivered by facsimile (with receipt of
appropriate confirmation), (iv) one (1) Business Day after being deposited with
a nationally recognized
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overnight courier service or (v) four (4) days after being deposited in the U.S.
mail, First Class with postage prepaid, and addressed to the attention of:
IF TO ADAPTEC, INC.:
Adaptec, Inc.
691 S. Milpitas Blvd.
Milpitas, CA 95035
Attention: Vice President and General Counsel
Facsimile No.: (408) 957-7137
with a copy to:
Wilson Sonsini Goodrich & Rosati, Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
Attention: Henry P. Massey, Jr.
Facsimile No.: 650-493-6811
IF TO ROXIO, INC.:
Roxio, Inc.
461 South Milpitas Blvd.
Milpitas, CA 95035
Attention: [ ]
Facsimile No.: [ ]
with a copy to:
Gray Cary Ware & Freidenrich LLP
400 Capitol Mall, Suite 2400
Sacramento, CA 95814
Attention: Kevin A. Coyle
Facsimile No.: 916-930-3201
Adaptec and Roxio may substitute a different address or facsimile
number, from time to time, if such substitute is provided to the intended notice
recipient in writing by notice given in the manner provided in this SECTION 4.4.
SECTION 4.5 COUNTERPARTS. This Agreement, including the Schedules
hereto and the other documents referred to herein, may be executed in
counterparts via facsimile or otherwise, each of which shall be deemed to be an
original but all of which shall constitute one and the same agreement.
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SECTION 4.6 BINDING EFFECT; ASSIGNMENT. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective legal
representatives and successors, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights or remedies of
any nature whatsoever under or by reason of this Agreement. This Agreement may
be enforced separately by each member of the Adaptec Group and each member of
the Roxio Group. Except as herein specifically provided to the contrary, neither
party may assign this Agreement or any rights or obligations hereunder, without
the prior written consent of the other party, and any such assignment shall be
void; provided, however, either party (or its permitted successive assignees or
transferees hereunder) may assign or transfer this Agreement as a whole without
consent to an entity that succeeds to all or substantially all of the business
or assets of such party to which this Agreement relates.
SECTION 4.7 SEVERABILITY. The parties hereto have negotiated and
prepared the terms of this Agreement in good faith with the intent that each and
every one of the terms, covenants and conditions herein be binding upon and
inure to the benefit of the respective parties. Accordingly, if any one or more
of the terms, provisions, promises, covenants or conditions of this Agreement or
the application thereof to any person or circumstance shall be adjudged to any
extent invalid, unenforceable, void or voidable for any reason whatsoever by a
court of competent jurisdiction, such provision shall be as narrowly construed
as possible, and each and all of the remaining terms, provisions, promises,
covenants and conditions of this Agreement or their application to other persons
or circumstances shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law. To the extent this Agreement
is in violation of applicable law, then the parties agree to negotiate in good
faith to amend the Agreement, to the extent possible consistent with its
purposes, to conform to law.
SECTION 4.8 WAIVER OF BREACH. The waiver by either party hereto of a
breach or violation of any provision of this Agreement shall not operate as, or
be construed to constitute, a waiver of any subsequent breach of the same or
another provision hereof.
SECTION 4.9 AMENDMENT AND EXECUTION. This Agreement and amendments
hereto shall be in writing and executed in multiple copies via facsimile or
otherwise on behalf of Adaptec and Roxio by their respective duly authorized
officers and representatives. Each multiple copy shall be deemed an original,
but all multiple copies together shall constitute one and the same instrument.
SECTION 4.10 AUTHORITY. Each of the parties hereto represents to the
other that (a) it has the corporate or other requisite power and authority to
execute, deliver and perform this Agreement, (b) the execution, delivery and
performance of this Agreement by it have been duly authorized by all necessary
corporate or other actions, (c) it has duly and validly executed and delivered
this Agreement, and (d) this Agreement is a legal, valid and binding obligation,
enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general equity principles.
SECTION 4.11 DESCRIPTIVE HEADINGS. The headings contained in this
Agreement, in any Exhibit or Schedule hereto and in the table of contents to
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. Any capitalized
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term used in any Schedule or Exhibit but not otherwise defined therein, shall
have the meaning assigned to such term in this Agreement. When a reference is
made in this Agreement to an Article or a Section, Exhibit or Schedule, such
reference shall be to an Article or Section of, or an Exhibit or Schedule to,
this Agreement unless otherwise indicated.
SECTION 4.12 GENDER AND NUMBER. Whenever the context of this Agreement
requires, the gender of all words herein shall include the masculine, feminine
and neuter, and the number of all words herein shall include the singular and
plural.
SECTION 4.13 ADDITIONAL ASSURANCES. Except as may be specifically
provided herein to the contrary, the provisions of this Agreement shall be
self-operative and shall not require further agreement by the parties; provided,
however, at the request of either party, the other party shall execute such
additional instruments and take such additional acts as are reasonable, and as
the requesting party may reasonably deem necessary, to effectuate this
Agreement.
SECTION 4.14 FORCE MAJEURE. Neither party shall be liable or deemed to
be in default for any delay or failure in performance under this Agreement or
other interruption of service deemed to result, directly or indirectly, from
acts of God, civil or military authority, acts of public enemy, war, accidents,
explosions, earthquakes, floods, failure of transportation, strikes or other
work interruptions by either party's employees, or any other similar cause
beyond the reasonable control of either party unless such delay or failure in
performance is expressly addressed elsewhere in this Agreement.
SECTION 4.15 CONFLICTING AGREEMENTS. In the event of conflict between
this Agreement and any other Ancillary Agreement or other agreement executed in
connection herewith, the provisions of such other agreement shall prevail (other
than (i) as otherwise provided herein and (ii) the Separation and Distribution
Agreement).
ARTICLE V
DEFINITIONS
SECTION 5.1 ACTION. "ACTION" means any demand, action, suit,
countersuit, arbitration, inquiry, proceeding or investigation by or before any
federal, state, local, foreign or international governmental authority or any
arbitration or mediation tribunal.
SECTION 5.2 ADAPTEC GROUP. "ADAPTEC GROUP" has the meaning set forth in
Section 7.2 of the Separation Agreement.
SECTION 5.3 ANCILLARY AGREEMENT. "ANCILLARY AGREEMENT" has the meaning
set forth in SECTION 2.1 of the Separation Agreement.
SECTION 5.4 ASSETS. "ASSETS" means assets, properties and rights
(including goodwill), wherever located (including in the possession of vendors
or other third parties or elsewhere), whether real, personal or mixed, tangible,
intangible or contingent, in each case whether or not
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recorded or reflected or required to be recorded or reflected on the books and
records or financial statements of any Person, including the following:
(i) all accounting and other books, records and files
whether in paper, microfilm, microfiche, computer tape or disc, magnetic tape or
any other form;
(ii) all apparatus, computers and other electronic data
processing equipment, fixtures, machinery, equipment, furniture, office
equipment, automobiles, trucks, aircraft, rolling stock, vessels, motor vehicles
and other transportation equipment, special and general tools, test devices,
prototypes and models and other tangible personal property;
(iii) all inventories of materials, parts, raw materials,
supplies, work-in-process and finished goods and products;
(iv) all interests in real property of whatever nature,
including easements, whether as owner, mortgagee or holder of a Security
Interest, lessor, sublessor, lessee, sublessee or otherwise;
(v) all interests in any capital stock or other equity
interests of any Subsidiary or any other Person; all bonds, notes, debentures or
other securities issued by any Subsidiary or any other Person; all loans,
advances or other extensions of credit or capital contributions to any
Subsidiary or any other Person; and all other investments in securities of any
Person;
(vi) all license agreements, leases of personal property,
open purchase orders for raw materials, supplies, parts or services, unfilled
orders for the manufacture and sale of products and other contracts, agreements
or commitments;
(vii) all deposits, letters of credit and performance and
surety bonds;
(viii) all written technical information, data,
specifications, research and development information, engineering drawings,
operating and maintenance manuals, and materials and analyses prepared by
consultants and other third parties;
(ix) all Intellectual Property and licenses from third
Persons granting the right to use any Intellectual Property;
(x) all computer applications, programs and other
software, including operating software, network software, firmware, middleware,
design software, design tools, systems documentation and instructions;
(xi) all cost information, sales and pricing data,
customer prospect lists, supplier records, customer and supplier lists, customer
and vendor data, correspondence and lists, product literature, artwork, design,
development and manufacturing files, vendor and customer drawings, formulations
and specifications, quality records and reports and other books, records,
studies, surveys, reports, plans and documents;
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(xii) all prepaid expenses, trade accounts and other
accounts and notes receivables;
(xiii) all rights under contracts or agreements, all claims
or rights against any Person arising from the ownership of any Asset, all rights
in connection with any bids or offers and all claims, choses in action or
similar rights, whether accrued or contingent;
(xiv) all rights under insurance policies and all rights in
the nature of insurance, indemnification or contribution;
(xv) all licenses (including radio and similar licenses),
permits, approvals and authorizations which have been issued by any Governmental
Authority;
(xvi) cash or cash equivalents, bank accounts, lock boxes
and other deposit arrangements; and
(xvii) interest rate, currency, commodity or other swap,
collar, cap or other hedging or similar agreements or arrangements.
SECTION 5.5 CONSENTS. "CONSENTS" means any consents, waivers or
approvals from, or notification requirements to, any third parties.
SECTION 5.6 CONTRACTS. "CONTRACTS" means any contract, agreement,
lease, license, sales order, purchase order, instrument or other commitment that
is binding on any Person or any part of its property under applicable law.
SECTION 5.7 DELAYED TRANSFER ASSETS. "DELAYED TRANSFER ASSETS" means
any Roxio Assets that are set forth on Schedule 1.1(c) of this Agreement, the
Separation Agreement or any other Ancillary Agreement to be transferred after
the date of this Agreement.
SECTION 5.8 DELAYED TRANSFER LIABILITIES. "DELAYED TRANSFER
LIABILITIES" means any Roxio Liabilities that are set forth on Schedule 1.1(c)
to this Agreement, the Separation Agreement or any other Ancillary Agreement to
be transferred after the date of this Agreement.
SECTION 5.9 DISPUTES. "DISPUTES" shall have the meaning set forth in
Section 5.7 of the Separation Agreement.
SECTION 5.10 DISTRIBUTION. "DISTRIBUTION" shall have the meaning set
forth in the Recitals of the Separation Agreement.
SECTION 5.11 DISTRIBUTION DATE. "DISTRIBUTION DATE" has the meaning set
forth in SECTION 4.1 of the Separation Agreement.
SECTION 5.12 ENVIRONMENTAL ACTIONS. "ENVIRONMENTAL ACTIONS" has the
meaning set forth in SECTION 5.9 of the Indemnification and Insurance Matters
Agreement.
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SECTION 5.13 EXCLUDED ASSETS. "EXCLUDED ASSETS" has the meaning set
forth in SECTION 1.2(b) of this Agreement.
SECTION 5.14 EXCLUDED LIABILITIES. "EXCLUDED LIABILITIES" has the
meaning set forth in SECTION 1.3(b) of this Agreement.
SECTION 5.15 GAAP. "GAAP" has the meaning set forth in Section 7.14 of
the Separation Agreement.
SECTION 5.16 GOVERNMENTAL APPROVALS. "GOVERNMENTAL APPROVALS" means any
notices, reports or other filings to be made, or any consents, registrations,
approvals, permits or authorizations to be obtained from, any Governmental
Authority.
SECTION 5.17 GOVERNMENTAL AUTHORITY. "GOVERNMENTAL AUTHORITY" means any
federal, state, local, foreign or international court, government, department,
commission, board, bureau, agency, official or other regulatory, administrative
or governmental authority.
SECTION 5.18 INDEMNIFICATION AND INSURANCE MATTERS AGREEMENT.
"Indemnification and Insurance Matters Agreement" means the Indemnification and
Insurance Matters Agreement attached as Exhibit I to the Separation Agreement.
SECTION 5.19 INSURANCE POLICIES. "INSURANCE POLICIES" means insurance
policies pursuant to which a Person makes a true risk transfer to an insurer.
SECTION 5.20 INSURED ROXIO LIABILITY. "INSURED ROXIO LIABILITY" means
any Roxio Liability to the extent that (i) it is covered under the terms of
Adaptec's Insurance Policies in effect prior to the Distribution Date and (ii)
Roxio is not a named insured under, or otherwise entitled to the benefits of,
such Insurance Policies.
SECTION 5.21 INTELLECTUAL PROPERTY. "INTELLECTUAL PROPERTY" means all
domestic and foreign patents and patent applications, together with any
continuations, continuations-in-part or divisional applications thereof, and all
patents issuing thereon (including reissues, renewals and re-examinations of the
foregoing); design patents, invention disclosures; mask works; copyrights, and
copyright applications and registrations; Web addresses, trademarks, service
marks, trade names, and trade dress, in each case together with any applications
and registrations therefor and all appurtenant goodwill relating thereto; trade
secrets, commercial and technical information, know-how, proprietary or
confidential information, including engineering, production and other designs,
notebooks, processes, drawings, specifications, formulae, and technology;
computer and electronic data processing programs and software (object and source
code), data bases and documentation thereof; inventions (whether patented or
not); utility models; registered designs, certificates of invention and all
other intellectual property under the laws of any country throughout the world.
SECTION 5.22 IPO. "IPO" has the meaning set forth in the Recitals of
the Separation Agreement.
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SECTION 5.23 IPO REGISTRATION STATEMENT. "IPO REGISTRATION STATEMENT"
has the meaning set forth in the Recitals of the Separation Agreement.
SECTION 5.24 LIABILITIES. "LIABILITIES" means all debts, liabilities,
guarantees, assurances, commitments and obligations, whether fixed, contingent
or absolute, asserted or unasserted, matured or unmatured, liquidated or
unliquidated, accrued or not accrued, known or unknown, due or to become due,
whenever or however arising (including, without limitation, whether arising out
of any Contract or tort based on negligence or strict liability) and whether or
not the same would be required by GAAP to be reflected in financial statements
or disclosed in the notes thereto.
SECTION 5.25 LITIGATION DISCLOSURE LETTER. "LITIGATION DISCLOSURE
LETTER" has the meaning set forth in SECTION 2.1(a) of this Agreement.
SECTION 5.26 OFLS. "OFLS" mean all liabilities, obligations,
contingencies, instruments and other Liabilities of any member of the Adaptec
Group of a financial nature with third parties existing on the date hereof or
entered into or established between the date hereof and the Separation Date,
including any of the following:
(i) foreign exchange contracts;
(ii) letters of credit;
(iii) guarantees of third party loans to customers;
(iv) surety bonds (excluding surety for workers'
compensation self-insurance);
(v) interest support agreements on third party loans to
customers;
(vi) performance bonds or guarantees issued by third
parties;
(vii) swaps or other derivatives contracts; and
(viii) recourse arrangements on the sale of receivables or
notes.
SECTION 5.27 PERSON. "PERSON" has the meaning set forth in Section 7.24
of the Separation Agreement.
SECTION 5.28 RETAINED PAYABLES. "RETAINED PAYABLES" means (i) all
accounts payable and other obligations of payment for goods or services
purchased, leased or otherwise received in the conduct of the Roxio Business
that as of the Separation Date are payable to a non-member of either the Adaptec
or Roxio Group by Adaptec or any of Adaptec's Subsidiaries (other than the
"Transferred Subsidiaries"), whether past due, due or to become due, including
any interest, sales or use taxes, finance charges, late or returned check
charges and other obligations of Adaptec or any of Adaptec's Subsidiaries with
respect thereto, and any obligations related to any of the foregoing and (ii)
all employee compensation Liabilities and other miscellaneous Liabilities for
which an adjustment is made in the Roxio Pro Forma Balance Sheet.
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SECTION 5.29 RETAINED RECEIVABLES. "RETAINED RECEIVABLES" means (i) all
accounts receivable and other rights to payment for goods or services sold,
leased or otherwise provided in the conduct of the Roxio Business that as of the
Separation Date are payable by a non-member of either the Adaptec or Roxio Group
to Adaptec or any of Adaptec's Subsidiaries (other than the "Transferred
Subsidiaries"), whether past due, due or to become due, including any interest,
sales or use taxes, finance charges, late or returned check charges and other
obligations of the account debtor with respect thereto, and any proceeds of any
of the foregoing and (ii) all other miscellaneous Assets for which an adjustment
is made in the Roxio Pro Forma Balance Sheet.
SECTION 5.30 ROXIO ASSETS. "ROXIO ASSETS" has the meaning set forth in
SECTION 1.2 of this Agreement.
SECTION 5.31 ROXIO BALANCE SHEET. "ROXIO BALANCE SHEET" means the
audited consolidated balance sheet (including the notes thereto) of the Roxio
Business as of March 31, 2000.
SECTION 5.32 ROXIO BUSINESS. "ROXIO BUSINESS" has the meaning set forth
in Section 7.29 of the Separation Agreement.
SECTION 5.33 ROXIO CONTINGENT GAIN. "ROXIO CONTINGENT GAIN" means any
claim or other right of a member of the Adaptec Group or the Roxio Group that
primarily relates to the Roxio Business, whenever arising, against any Person
other than a member of the Adaptec Group or the Roxio Group, if and to the
extent that (i) such claim or right arises out of events, acts or omissions
occurring prior to the Separation Date (based on then existing law) and (ii) the
existence or scope of the obligation of such other Person as of the Separation
Date was not acknowledged, fixed or determined in any material respect, due to a
dispute or other uncertainty as of the Separation Date or as a result of the
failure of such claim or other right to have been discovered or asserted as of
the Separation Date. A claim or right meeting the foregoing definition shall be
considered a Roxio Contingent Gain regardless of whether there was any Action
pending, threatened or contemplated as of the Separation Date with respect
thereto. In the case of any claim or right a portion of which arises out of
events, acts or omissions occurring prior to the Separation Date and a portion
of which arises out of events, acts or omissions occurring on or after the
Separation Date, only that portion that arises out of events, acts or omissions
occurring prior to the Separation Date shall be considered a Roxio Contingent
Gain. For purposes of the foregoing, a claim or right shall be deemed to have
accrued as of the Separation Date if all the elements of the claim necessary for
its assertion shall have occurred on or prior to the Separation Date, such that
the claim or right, were it asserted in an Action on or prior to the Separation
Date, would not be dismissed by a court on ripeness or similar grounds.
Notwithstanding the foregoing, none of (i) any Insurance Proceeds, (ii) any
Excluded Assets, (iii) any reversal of any litigation or other reserve, or (iv)
any matters relating to Taxes (which are governed by the Tax Sharing Agreement)
shall be deemed to be a Roxio Contingent Gain.
SECTION 5.34 ROXIO CONTINGENT LIABILITY. "ROXIO CONTINGENT LIABILITY"
means any Liability, other than Liabilities for Taxes (which are governed by the
Tax Sharing Agreement), of a member of the Adaptec Group or the Roxio Group that
primarily relates to the Roxio Business, whenever arising, to any Person other
than a member of the Adaptec Group or the Roxio Group, if
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and to the extent that (i) such Liability arises out of the events, acts or
omissions occurring as of the Separation Date and (ii) the existence or scope of
the obligation of a member of the Adaptec Group or the Roxio Group as of the
Separation Date with respect to such Liability was not acknowledged, fixed or
determined in any material respect, due to a dispute or other uncertainty as of
the Separation Date or as a result of the failure of such Liability to have been
discovered or asserted as of the Separation Date. The parties agree that the
existence of a litigation or other reserve with respect to any Liability shall
not be sufficient for such Liability to be considered acknowledged, fixed or
determined. In the case of any Liability a portion of which arises out of
events, acts or omissions occurring prior to the Separation Date and a portion
of which arises out of events, acts or omissions occurring on or after the
Separation Date, only that portion that arises out of events, acts or omissions
occurring prior to the Separation Date shall be considered a Roxio Contingent
Liability. For purposes of the foregoing, a Liability shall be deemed to have
arisen out of events, acts or omissions occurring prior to the Separation Date
if all the elements necessary for the assertion of a claim with respect to such
Liability shall have occurred on or prior to the Separation Date, such that the
claim, were it asserted in an Action on or prior to the Separation Date, would
not be dismissed by a court on ripeness or similar grounds. For purposes of
clarification of the foregoing, the parties agree that no Liability relating to,
arising out of or resulting from any obligation of any Person to perform the
executory portion of any contract or agreement existing as of the Separation
Date, or to satisfy any obligation accrued under any Plan (as defined in the
Employee Matters Agreement) as of the Separation Date, shall deemed to be a
Roxio Contingent Liability.
SECTION 5.35 ROXIO CONTRACTS. "ROXIO CONTRACTS" means the following
contracts and agreements to which Adaptec is a party or by which it or any of
its Assets is bound, whether or not in writing, except for any such contract or
agreement that is contemplated to be retained by Adaptec or any member of the
Adaptec Group pursuant to any provision of this Agreement or any other Ancillary
Agreement:
(i) any contract or agreement entered into in the name
of, or expressly on behalf of, any division or business unit of Roxio;
(ii) any contract or agreement that relates primarily to
the Roxio Business;
(iii) any contracts or agreements related to the computers,
desks, equipment (including equipment used for research and development) and
other Assets used or managed primarily by employees of Adaptec that will become
employees of Roxio in connection with the Separation;
(iv) any contract or agreement that is otherwise expressly
contemplated pursuant to this Agreement, the Separation Agreement or any of the
other Ancillary Agreements to be assigned to Roxio;
(v) any guarantee, indemnity, representation, warranty or
other Liability of any member of the Roxio Group or the Adaptec Group in respect
of any other Roxio Contract, any Roxio Liability or the Roxio Business
(including guarantees of financing incurred by customers or other third parties
in connection with purchases of products or services from the Roxio Business);
and
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(vi) any Roxio OFL.
SECTION 5.36 ROXIO GROUP. "ROXIO GROUP" has the meaning set forth in
Section 7.30 of the Separation Agreement..
SECTION 5.37 ROXIO LIABILITIES. "ROXIO LIABILITIES" has the meaning set
forth in SECTION 1.3 of this Agreement.
SECTION 5.38 ROXIO PRO FORMA BALANCE SHEET. "ROXIO PRO FORMA BALANCE
SHEET" means the unaudited pro forma condensed consolidated balance sheet
appearing in the IPO Registration Statement.
SECTION 5.39 SECURITY INTEREST. "SECURITY INTEREST" means any mortgage,
security interest, pledge, lien, charge, claim, option, right to acquire, voting
or other restriction, right-of-way, covenant, condition, easement, encroachment,
restriction on transfer, or other encumbrance of any nature whatsoever.
SECTION 5.40 SEPARATION. "SEPARATION" has the meaning set forth in the
Recitals of the Separation Agreement.
SECTION 5.41 SEPARATION AGREEMENT. "SEPARATION AGREEMENT" means the
Master Separation and Distribution Agreement dated as of September __, 2000, of
which this is an Exhibit.
SECTION 5.42 SEPARATION DATE. "SEPARATION DATE" has the meaning set
forth in Section 1.1 of the Separation Agreement.
SECTION 5.43 SUBSIDIARY. "SUBSIDIARY" means with respect to any
specified Person, any corporation, any limited liability company, any
partnership or other legal entity of which such Person or its Subsidiaries owns,
directly or indirectly, more than 50% of the stock or other equity interest
entitled to vote on the election of the members of the board of directors or
similar governing body. Unless context otherwise requires, reference to Adaptec
and its Subsidiaries shall not include the subsidiaries of Adaptec that will be
transferred to Roxio after giving effect to the Separation.
SECTION 5.44 TAXES. "TAXES" has the meaning set forth in the Tax
Sharing Agreement.
SECTION 5.45 TAX SHARING AGREEMENT. "Tax Sharing Agreement" means the
Tax Sharing Agreement attached as Exhibit F to the Separation Agreement.
SECTION 5.46 TRANSFERRED SUBSIDIARY. "TRANSFERRED SUBSIDIARY" has the
meaning set forth in Section 2.1(b) of the Separation Agreement.
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IN WITNESS WHEREOF, each of the parties has caused the General
Assignment and Assumption Agreement to be executed on its behalf by its officers
thereunto duly authorized on the day and year first above written.
ADAPTEC, INC.
By:
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Name:
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Title:
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ROXIO, INC.
By:
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Name:
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Title:
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[SIGNATURE PAGE TO GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT]
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SCHEDULE 1.1(c)
DELAYED TRANSFER ASSETS AND LIABILITIES
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SCHEDULE 1.2(a)(x)
SPECIFIC ROXIO ASSETS TO BE TRANSFERRED
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SCHEDULE 1.2(b)(i)
EXCLUDED ASSETS
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SCHEDULE 1.3(a)(vi)
DIVESTED BUSINESSES WHICH CONTAIN LIABILITIES TO BE TRANSFERRED TO ROXIO
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SCHEDULE 1.3(a)(vii)
SPECIFIC ROXIO LIABILITIES
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SCHEDULE 1.3(b)(i)
EXCLUDED LIABILITIES