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HomeMy WebLinkAboutExhibitASSIGNMENT AND .ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMv ION AGREEMENT (the "Assignment and Assumption Agreement") is entered into as of April H , 2009, by and between Motorola, Inc., a Delaware corporation (the "Assignor"), and Sagem Morpho, Inc., a Delaware corporation (the "Assignee") and wholly-owned subsidiary of Sagen, Securit,e, a company organized under the laws of France ("Assignee Parent"). Capitalized terms used in this Assignment and Assumption Agreement but not otherwise defined herein have the meanings ascribed thereto in the Acquisition Agreement (as defined herein). WHEREAS, the Assignor and Assignee Parent, on its own behalf and, to the extent therein provided, as agent for the Assignee, have entered into that certain Master Acquisition Agreement dated as of October 9, 2008 (the "Acquisition Agreement"), pursuant to which the Assignor has agreed to sell, assign, convey and transfer the Acquired Assets to the Assignee Parent, and the Assignee Parent has agreed to assume the Assumed Liabilities from the Assignor, and WHEREAS, the Assignor and the Assignee now seek to consummate the sale, assignment, conveyance and transfer of the Included Contracts and assumption of the Assumed Liabilities, other than those Acquired Assets and Assumed Liabilities that are conveyed pursuant to the other instruments of transfer executed pursuant to the Acquisition Agreement. NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants set forth herein and in the Acquisition Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree.as follows: 1. The Assignor hereby assigns, sells, transfers and sets over (collectively, the "Assignment") to the Assignee all rights, title and interest of the Seller Group in, to and under the Included Contracts, other than those Included Contracts that are conveyed pursuant to the other instruments of transfer executed pursuant to the Acquisition Agreement. The Assignee hereby accepts the Assignment and assumes and agrees to pay and discharge when due, all of the Assumed Liabilities (other than those Assumed Liabilities that are assumed pursuant to the other instruments of transfer executed pursuant to the Acquisition Agreement). Notwithstanding the foregoing, the Assignee does not assume, or agree to pay, perform or discharge, any Liabilities of the Assignor other than the Assumed Liabilities, including without limitation the Excluded Liabilities, and the parties hereto agree that all such Liabilities, other than the Assumed Liabilities, will remain the sole responsibility of the Assignor. 2. This Assignment and Assumption Agreement is an instrument of transfer contemplated by, and executed pursuant to, the Acquisition Agreement. Nothing in this Assignment and Assumption Agreement will be construed to supersede, amend or modify any provision of the Acquisition Agreement or any rights or obligations under the Acquisition Agreement. In the event of any conflict or inconsistency between the terms of the Acquisition Agreement and the terms. hereof, the terms of the Acquisition Agreement will govern. 3. Each party hereto agrees to cooperate fully with the other party and to execute such further instruments, documents and agreements, and to give such further written assurances, as may be reasonably requested by any other party to evidence and reflect better and to carry into effect the intents and purposes of this Assignment and Assumption Agreement. 4_ Nothing in this instrument, express or implied, is intended or will be construed to confer upon, or give to, any person other than the Assignee and its successors and assigns, any remedy or claim under or by reason of this instrument or any terms, covenants or conditions hereof, and all of the terms, "P�' '-4, � P, - �'Iqs - � covenants and conditions, promises and agreements contained in this instrument will be for the sole and exclusive benefit of the Assignee and its successors and assigns..__ S. This Assignment and Assumption Agreement (a) is irrevocable and effective upon the Assignee's signature to and delivery of a manually signed copy of this Assignment and Assumption Agreement or facsimile or email transmission of. the signature to this Assignment and Assumption Agreement in connection with the Closing, if and only if the Closing is completed, (b) is executed by, and will be binding upon, the respective parties hereto and their successors and assigns, and (c) may be signed in counterparts as provided in Section 10.6 of the Acquisition Agreement. 6. , The parties may amend this Assignment and Assumption Agreement only by a written agreement signed by the parties to be bound by the amendment and that identifies itself as an amendment to this Assignment and Assumption Agreement_ 7. The transactions contemplated hereby will not constitute an assignment of any Included Contract which by its terms or pursuant to applicable law is not assignable or transferable without the consent, authorization, or approval of any person, including a Governmental Entity, or which becomes terminable. by any person if the consent, authorization or approval of such person is not obtained, unless such consent, authorization or approval (as the case may be) has been obtained prior to Closing. Any such Included Contract shall be managed and transferred as between the parties as set forth in Section 1.6(c) of the Acquisition Agreement. 8. If any provision of this Assignment and Assumption Agreement is determined to be _ invalid, illegal or unenforceable, the remaining provisions of this Assignment and Assumption Agreement will remain in frill force. Any provision of this Assignment and Assumption Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. 9. The internal laws of the State of New York (without reference to any principles of conflicts of law) govern the construction, interpretation and other matters arising out of or in connection with this Assignment and Assumption Agreement (whether arising in contract, tort, equity or otherwise). (This space intentionally left blank) IN WITNESS WHEREOF, the parties hereto have executed this Assignment and Assumption Agreement as of the date first set forth above. "Assignee" SAGEM MORPHO, INC., a Delaware corporation B-- Name: Title:of sxmmmaPA= TommAbS[GmAwrAamA45um mnAcm z mtr IN WITNESS WIIREOF, the parties hereto have executed this Assignment and Assumption Agreement as of the date first set forth abo=ve___ -- "Assignor" MOTOROLA, INC., a Delaware corporation By. Akl�� Name: Mike Dooley Title: Senior Director, Corporate Development SIGNATURE PACE TO 78E ASSIGNMENT AND ASSUmynoN AGREEMENT