CONFIDENTIAL
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, dated as of June 26, 2006 (the “Agreement”), is by and between INTEL CORPORATION, a Delaware corporation (the “Seller”), and MARVELL TECHNOLOGY GROUP LTD., a Bermuda corporation (the “Buyer”). Seller and Buyer are sometimes referred to as the “Parties” and each individually as a “Party.” All capitalized terms have the meanings ascribed to such terms in Article I or as otherwise defined herein.
RECITALS
A. Seller desires to sell to Buyer, and Buyer desires to acquire from Seller, the Transferred Assets, and Buyer is willing to assume the Assumed Liabilities, all upon the terms and conditions set forth in this Agreement.
B. In connection with the transactions contemplated by this Agreement, Buyer and Seller also are entering into, or intend to enter into, certain other Ancillary Agreements, including the Transition Services Agreement, the Intellectual Property Agreements and the Development Agreement.
C. Seller’s Subsidiaries identified on Schedule 3.23, (collectively, the “Subsidiary Sellers”) own 10,011 Ordinary Shares of DSPC Technologies Ltd., a corporation formed under the laws of Israel (the “Transferred Sub”), which represent all of the issued and outstanding shares of Transferred Sub (the “Transferred Shares”).
D. Seller desires to cause the Subsidiary Sellers to sell to Buyer, and Buyer desires to acquire from the Subsidiary Sellers, the Transferred Shares, all upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual representations, warranties, covenants and agreements hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01 Definitions. The following terms, as used herein, have the following meanings:
“Accounts Payable” means all accounts payable owing by Seller or any of its Subsidiaries in connection with the Business for raw materials or supplies received by or services rendered to Seller or any of its Subsidiaries on or prior to the Closing Date.
“Accounts Receivable” means all accounts receivable, notes receivable and other current rights to payment of Seller or any of its Subsidiaries, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoing.
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“Acquisition Documents” means this Agreement, the Ancillary Agreements and any other document or agreement executed in connection with any of the foregoing, together with any exhibits and schedules thereto, and in each case as modified, amended, supplemented, restated or renewed from time to time.
“Affiliate” means, with respect to any Person, any Person directly or indirectly controlling, controlled by or under direct or indirect common control with such other Person.
“Ancillary Agreements” means the Assignment and Assumption Agreement, the Bill of Sale, the Intellectual Property Agreements, the Registration Rights Agreement, the Copyright Assignment, the Non-Compete Agreement, the Patent Assignment, the Development Agreement, the Supply Agreement, and the Transition Services Agreement, together with any exhibits and schedules thereto, and in each case as modified, amended, supplemented, restated or renewed from time to time.
“Applicable Law” means, with respect to any Person, any federal, state, local or foreign statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree or other requirement of any Governmental Authority applicable to such Person or any of its Affiliates or any of their respective properties, assets, officers, directors, employees, consultants or agents.
“Assignment and Assumption Agreement” means the Assignment and Assumption Agreement to be entered into by Buyer and/or one or more Buyer Designees, on the one hand, and the applicable Selling Parties, on the other hand, as of the Closing Date in substantially the form attached hereto as Exhibit A.
“Bill of Sale” means the Bill of Sale to be executed by the applicable Selling Party in favor of Buyer and/or one or more Buyer Designees as of the Closing Date in substantially the form attached hereto as Exhibit B.
“Business” means the Selling Parties’ and Transferred Sub’s development, sale and support of the Products as of the date hereof.
“Business Day” means each day other than a Saturday, Sunday or other day on which commercial banks in San Francisco, California are authorized or required by law to close.
“Buyer Designee” means an Affiliate of Buyer to which specified Transferred Assets and/or Transferred Shares will be transferred as identified in Schedule 1.01(a), as may be revised after the date hereof and prior to the Closing with the consent of Seller.
“Buyer Common Stock” means Buyer’s common stock, $0.002 par value per share.
“Buyer Material Adverse Effect” means, with respect to Buyer, any event, change or circumstance that, individually or in the aggregate with all other such events, changes or circumstances, results in a material adverse effect on, or material adverse change in, the operations, financial condition, earnings, results of operations, assets or Liabilities of Buyer or any event, change or circumstance that is materially adverse to the ability of Buyer and the Buyer Designees,
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collectively, to perform their obligations under this Agreement or the Ancillary Agreements to which Buyer or a Buyer Designee is or will be a Party or to consummate the transactions contemplated hereby or thereby other than such changes, effects or circumstances reasonably attributable to: (a) economic, capital market or political conditions generally in the United States or foreign economies in any locations where Buyer has material operations or sales, provided the changes, effects or circumstances do not have a materially disproportionate effect (relative to other industry participants) on Buyer; (b) conditions generally affecting the industry in which Buyer operates, provided the changes, effects or circumstances do not have a materially disproportionate effect (relative to other industry participants) on Buyer; (c) the outbreak of hostilities or war, acts of terrorism or acts of God; or (d) any decrease in the market price or trading volume of Buyer Common Stock.
“Buyer Stock Market Price” means an amount equal to the average closing price of the Buyer Common Stock on Nasdaq for the ten (10) trading day period ending on the date which is the sixth (6th) trading day immediately prior to the Closing Date (with the closing price for each day being the last reported sales price or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices, in either case on Nasdaq) or, if not listed and admitted to trading on Nasdaq, on the principal national securities exchange on which such securities are listed and admitted to trading, or if not quoted on a principal national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any exchange member firm selected from time to time by Buyer for that purpose, or if such Buyer Common Stock is no longer publicly-traded, the price as is determined to be the fair market value as determined reasonably and in good faith by the Board of Directors of Buyer following the principle of reasonable valuation methods consistently applied under the guidelines of Treas. Reg. §1.409A-1(b)(5)(iv)(B).
“Cash and Cash Equivalents” means all cash on hand and cash equivalents of Seller and its Subsidiaries (whether or not related to the Business), including currency and coins, negotiable checks, bank accounts, marketable securities, commercial paper, certificates of deposit, treasury bills, surety bonds and money market funds.
“Cash Consideration” means the cash consideration paid by Buyer pursuant to Section 2.07 subject to Section 5.09(j).
“Change of Control” of Buyer shall mean the occurrence of (or any public announcement of, or entry into any agreement by Buyer or any Buyer Subsidiary to engage in or effect, a transaction that would result in) any of the following events or circumstances, whether accomplished directly or indirectly, or in one or a series of related transactions:
(A) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as defined in Rule l3d-3 under the Exchange Act) of more than fifty percent (50%) of the total voting power of the outstanding capital stock of Buyer;
(B) Buyer merges with or into, or consolidates with, or consummates any reorganization or similar transaction with, another Person and, immediately after giving
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effect to such transaction, less than fifty percent (50%) of the total voting power of the outstanding capital stock of the surviving or resulting Person is “beneficially owned” (within the meaning of Rule 13d-3 under the Exchange Act) in the aggregate by the shareholders of Buyer immediately prior to such transaction;
(C) Buyer (including through one or more of its Subsidiaries and including through any liquidation or dissolution, other than a liquidation or dissolution in connection with a reorganization or similar transaction in which the holders of the voting stock of Buyer immediately prior to such transaction continue to represent more than fifty percent (50%) of the combined voting power of the surviving entity immediately after giving effect to such transaction) sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the assets and properties (including capital stock of Subsidiaries) of Buyer, but excluding sales, assignments, conveyances, transfers, leases or other dispositions of assets and properties (including capital stock of Subsidiaries) by Buyer or any of its Subsidiaries to any direct or indirect Subsidiary of Buyer; or
(D) Individuals who as of the date hereof constituted the members of the Board of Directors of Buyer (together with any new or replacement directors whose election by such Board of Directors or whose nomination for election by the shareholders of Buyer was approved by a vote of a majority of the members of the Board of Directors then in office who either were members of the Board of Directors as of the date hereof or whose election or nomination was previously so approved) cease for any reason to constitute a majority of the Board of Directors of Buyer then in office.
“Closing Date” means the date of the Closing.
“Contract” means each contract, agreement, option, lease, license, sale and purchase order, commitment and other instrument of any kind, whether written or oral, to which Seller or its Subsidiaries is a party or is otherwise bound.
“Conveyance Documents” means the Assignment and Assumption Agreement, Bill of Sale, the Copyright Assignment, and the Patent Assignment, each in the form as attached hereto, together with any exhibits and schedules thereto.
“Copyright Assignment” means the Copyright Assignment Agreement, dated as of the Closing Date, to be executed by Buyer and/or one or more Buyer Designees, on the one hand, and the applicable Selling Parties, on the other hand, in substantially the form attached hereto as Exhibit C.
“Core Seller Products” shall mean for any product other than the Products: (a) any Seller Chipset, Seller Processor, or substantial portion thereof; and (b) any software or firmware capable of running on or interoperating with a Seller Chipset or Seller Processor; and (c) any product that is bus or pin compatible with an Seller Bus.
“Development Agreement” means the Development Agreement entered into by Buyer and/or a Buyer Designee and Seller simultaneously herewith.
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“Dollars” means United States Dollars.
“Effective Time” means, unless otherwise agreed by the Parties, 12:01 a.m., in each relevant location of the Selling Party and Transferred Assets or Transferred Sub, as applicable, on the Closing Date, or where conflicting, 12:01 a.m., Pacific Time.
“Employee Agreement” means each management, employment, severance, consulting, relocation, repatriation, expatriation or other agreement or Contract between Seller or any of its Subsidiaries and any Business Employee directly relating to such Business Employee’s terms or conditions of employment.
“Employee Plan” means any plan, program, policy, practice, agreement or other arrangements providing for compensation, severance, termination pay, pension benefits, retirement benefits, deferred compensation, performance awards, stock or stock-related awards, fringe benefits (including health, dental, vision, life, disability, sabbatical, accidental death and dismemberment benefits), or other employee benefits or remuneration of any kind, whether written, unwritten or otherwise, funded or unfunded, including each “employee benefit plan,” within the meaning of Section 3(3) of ERISA, excluding any Employee Agreement, which is or has been maintained by Seller or its Affiliates for the benefit of any Business Employee.
“Environmental Laws” mean any Applicable Laws of any Governmental Authority in effect as of the date hereof relating to pollution or protection of the environment, natural resources or public and occupational health and safety relating to hazardous or toxic substances.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Excluded Employees” means employees of Seller and its Subsidiaries who work with the Transferred Assets but will remain employees of Seller or one of its Subsidiaries (other than the Transferred Sub) after the Closing as set forth on Schedule 1.01(b).
“Excluded Equipment” means all machinery, tools and other fixed assets of Seller and its Subsidiaries not included on Schedule 2.01(b), including that manufacturing and technology development equipment used in connection with Seller’s development of the Products.
“Excluded Seller Product” shall mean (a) any product of Seller or any of its Subsidiaries (including revisions of such product) that is marketed or sold by Seller or any of its Subsidiaries as of the Closing Date other than the Products, (b) any product planned to be marketed or sold by Seller as of the Closing Date other than the Products, or (c) any product that contains substantially different functionality from any Product. For purposes of clarification and not limitation, “Excluded Seller Product” shall include any product of Seller or any of its Subsidiaries implementing fixed or mobile wireless technology (including WiMAX, WiFi, RAN-LTE, or personal area network technologies) other than the Products.
“GAAP” means generally accepted accounting principles in the United States of America applied on a consistent basis as in effect as of the date hereof.
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“Governmental Approval” means an authorization, consent, approval, permit or license issued by, or a registration or filing with, or notice to, or waiver from, any Governmental Authority.
“Governmental Authority” means any foreign or domestic federal, territorial, state or local governmental authority, quasi-governmental authority, instrumentality, court, government or self-regulatory organization, commission, tribunal or organization or any regulatory, administrative or other agency, or any political or other subdivision, department or branch of any of the foregoing.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended.
“Indebtedness” means all obligations of Seller and it Subsidiaries for borrowed money, including (a) any capital lease obligation, (b) any obligation (whether fixed or contingent) to reimburse any bank or other Person in respect of amounts paid or payable under a standby letter of credit, (c) any guarantee with respect to indebtedness for borrowed money (of the kind otherwise described in this definition) of another Person, and (d) any factored or sold receivables.
“Intellectual Property” means intellectual property rights arising from or in respect of the following, whether protected, created or arising under the laws of the United States or any other jurisdiction: (a) copyrights and registrations and applications therefor (collectively, “Copyrights”); (b) know-how, inventions, discoveries, concepts, ideas, methods, processes, designs, formulae, technical data, source code, drawings, specifications, data bases and other proprietary and confidential information, including customer lists, in each case excluding any rights in respect of any of the foregoing that comprise or are protected by Copyrights, mask work rights or Patents (collectively, “Trade Secrets”); (c) patents and applications therefor, including continuation, divisional, continuation-in-part, reexamination, or reissue patent applications and patents issuing thereon (collectively, “Patents”); and (d) trademarks and registrations and applications therefor (collectively, “Trademarks”).
“Intellectual Property Agreements” means the Patent License Agreement and the Trade Secrets and Copyright License Agreement.
“Inventory” means all raw materials, work-in-progress, finished goods, supplies, packaging materials and other inventories owned by Seller or its Subsidiaries.
“IRS” means the Internal Revenue Service of the United States.
“Knowledge” means, with respect to any Person, the actual knowledge of such Person; provided, however, that with respect to Seller, actual knowledge shall be deemed to be solely the actual knowledge of the individuals identified on Schedule 1.01(c) and that with respect to Buyer, actual knowledge shall be deemed to be solely the actual knowledge of the individuals identified on Schedule 1.01(d).
“Liability” means, with respect to any Person, any liability or obligation of such Person of any kind, character or description, whether known or unknown, absolute or contingent, asserted or unasserted, accrued or unaccrued, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, absolute, contingent, executory, determined,
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determinable or otherwise and whether or not the same is required to be accrued on the financial statements of such Person.
“Lien” means, with respect to any asset, any mortgage, title defect or objection, lien, pledge, charge, security interest, encumbrance or hypothecation in respect of such asset; provided, however, that any license of Intellectual Property shall not be considered a Lien on such Intellectual Property.
“Multiemployer Plan” means any employee pension benefit plan within the meaning of Section 3(2) of ERISA that is a “multiemployer plan,” as defined in Section 3(37) of ERISA.
“Nasdaq” means the Nasdaq National Market.
“Non-Compete Agreement” means the Non-Competition and Non-Solicitation Agreement entered into by Buyer and Seller simultaneously herewith to become effective upon the Closing as of the Effective Time.
“Patent Assignment” means the Patent Assignment Agreement, dated as of the Closing Date, to be executed by Buyer and/or one or more Buyer Designees, on the one hand, and the applicable Selling Parties, on the other hand, in substantially the form attached hereto as Exhibit D.
“Patent License Agreement” means the Patent License Agreement in favor of Buyer or one or more Buyer Designees entered into by Buyer and/or one or more Buyer Designees, on the one hand, and the applicable Selling Parties, on the other hand, simultaneously herewith to become effective upon the Closing as of the Effective Time.
“Permitted Liens” means (a) Liens for Taxes or governmental assessments, charges or claims the payment of which is not yet due or which are being contested in good faith through appropriate proceedings and set forth in Schedule 3.12, (b) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen, repairers and other similar Persons and other Liens imposed by Applicable Law incurred in the ordinary course of business which are either for sums not yet delinquent or are immaterial in amount or are being contested in good faith, (c) zoning, entitlement, conservation restriction and other land use and Environmental Laws and (d) other easements, charges, rights-of-way, imperfections of title or other encumbrances, if any, which imperfections or encumbrances do not in any material respect impair the ability to transfer the Transferred Shares or use the Transferred Assets in the manner in which they are currently used by the Selling Parties.
“Person” means an individual, corporation, partnership, association, limited liability company, trust, estate or other similar business entity or organization, including a Governmental Authority.
“Post-Closing Tax Period” means any Tax period beginning on or after the Closing Date and the portion of any other Tax period ending on or after the Closing Date beginning on the Closing Date.
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“Pre-Closing Tax Period” means any Tax period (or portion thereof) ending before the Closing Date.
“Prepayments” means all prepaid items and deposits paid by a Selling Party in connection with the Business, and any claim, remedy or other right related to any of the foregoing.
“Product Obligations” means (a) obligations arising in respect of product support or maintenance obligations related to Products sold or licensed prior to the Closing and required to be performed after Closing, which obligations arise under any Assumed Contract or Transferred Sub Contract, provided that the cost of these obligations shall be borne by Seller as an Excluded Liability and (b) Liabilities relating to any product liability, warranty, refund or similar claims or returns, adjustments, allowances, repairs or returns made with respect to Products sold on or after the Closing Date.
“Products” means, collectively, all applications processors and communications processors, in each case, as described on Schedule 1.01(e).
“PTO” means the United States Patent and Trademark Office.
“Registration Rights Agreement” means the Registration Rights Agreement, dated as of the Closing Date, to be entered into by Buyer on the one hand and Seller and/or Subsidiary Sellers on the other hand in the event Seller and/or Subsidiary Sellers receive any Stock Consideration in accordance with Section 2.07 hereof, in substantially the form to be agreed by the Parties.
“Securities Act” means the United States Securities Act of 1933, as amended.
“Seller Bus” shall mean a proprietary bus or other data path first introduced by Seller or any of its Subsidiaries that: (a) is capable of transmitting and/or receiving information within an integrated circuit or between two or more integrated circuits, together with the set of protocols defining the electrical, physical, timing and functional characteristics, sequences and control procedures of such bus or data path; and (b) to which neither Seller nor its Subsidiaries (during any time such Subsidiary has met the requirements of being a Subsidiary of Seller) has granted a license or committed to grant a license through its participation in a government sponsored, industry sponsored, or contractually formed group or any similar organization that is dedicated to creating publicly available standards or specifications.
“Seller Chipset” means any single product, other than the Products, consisting of an integrated circuit(s), that alone or together are capable of electrically interfacing directly (with or without buffering or pin re-assignment) with any portion of a Seller Bus or a Seller Processor, to form the connection between such microprocessor and any other device (or group of devices) including microprocessors, input/output devices, networks, and memory.
“Seller Material Adverse Effect” means, with respect to the Transferred Assets or Transferred Sub, any event, change or circumstance that, individually or in the aggregate with all other such events, changes or circumstances, results in a material adverse effect on, or material adverse change in, the Transferred Assets and Transferred Sub, taken as a whole, or any event, change or circumstance that is materially adverse to the ability of the Selling Parties to perform
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their collective obligations under this Agreement or the Ancillary Agreements to which the Selling Parties and Transferred Sub are or will be a party or to consummate the transactions contemplated hereby or thereby other than such changes, effects or circumstances reasonably attributable to: (a) economic, capital market or political conditions generally in the United States or foreign economies in any locations where the Business has material operations or sales, provided the changes, effects or circumstances do not have a materially disproportionate effect (relative to other industry participants) on Seller’s applications and communications processor business or the Business, respectively; (b) conditions generally affecting the industry in which Seller’s applications and communications processor business or the Business operate, provided the changes, effects or circumstances do not have a materially disproportionate effect (relative to other industry participants) on Seller’s applications and communications processor business or the Business, respectively; (c) the outbreak of hostilities or war, acts of terrorism or acts of God; (d) changes and effects attributable to the execution, announcement or performance of this Agreement; or (e) any action taken by a Selling Party with the prior written consent of Buyer.
“Seller Processor” shall mean a microprocessor first developed by, for or with substantial participation by Seller or any of its Subsidiaries, or the design of which has been purchased or otherwise acquired by Seller or any of its Subsidiaries, including the Seller® 8086, 80186, 80286, 80386, 80486, Celeron®, Pentium®, Xeon™, StrongARM, XScale®, Itanium®, MXP, IXP, 80860 and 80960 microprocessor families, and the 8087, 80287, and 80387 math coprocessor families.
“Selling Party” means Seller and any Subsidiary of Seller that owns or possesses any Transferred Asset and/or any of the Transferred Shares (collectively, the “Selling Parties”), and for purposes of clarification, excludes Transferred Sub.
“Stock Consideration” means the consideration paid by Buyer pursuant to Section 2.07 in the form of shares of Buyer Common Stock.
“Subsidiary” means, with respect to any Person, (a) any corporation, limited liability company or other similar entity as to which more than fifty percent (50%) of the outstanding capital stock or other securities having voting rights or power is owned or controlled, directly or indirectly, by such Person and/or by one or more of such Person’s direct or indirect subsidiaries and (b) any partnership, joint venture or other similar relationship between such Person and any other Person.
“Supply Agreement” means the Supply Agreement entered into by Buyer and/or a Buyer Designee and Seller simultaneously herewith to become effective upon the Closing as of the Effective Time.
“Taxes” means (a) all foreign, federal, state, local and other net income, gross income, gross receipts, sales, use, ad valorem, value added, intangible, unitary, capital gain, transfer, franchise, profits, license, lease, service, service use, withholding, backup withholding, payroll, employment, estimated, excise, severance, stamp, occupation, premium, property, prohibited transactions, windfall or excess profits or other taxes of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts with respect thereto, (b) any Liability for payment of amounts described in clause (a) whether as a result of transferee Liability,
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of being a member of an affiliated, consolidated, combined or unitary group for any period, or otherwise through operation of law and (c) any Liability for the payment of amounts described in clause (a) or (b) as a result of any tax sharing, tax indemnity or tax allocation agreement or any other express or implied agreement to indemnify any other Person for Taxes; and the term “Tax” means any one of the foregoing Taxes.
“Tax Returns” means all returns, declarations, reports, statements, information statements, forms or other documents filed or required to be filed with respect to any Tax.
“Trade Secrets and Copyright License Agreement” means the Copyright and Trade Secrets License Agreement in favor of Buyer and/or one or more Buyer Designees entered into by Buyer and /or one or more Buyer Designees, on the one hand, and the applicable Selling Parties, on the other hand, simultaneously herewith to become effective upon the Closing as of the Effective Time.
“Transferred Copyrights” means the Copyrights owned by a Selling Party as of the Closing Date that are embodied in the Products and used exclusively in the Business and not embodied or used in or with any other current product or service or planned product or service of Seller or any of its Subsidiaries.
“Transferred Employees” means the Business Employees who (i) accept an offer of employment from Buyer and who begin their employment with Buyer immediately upon Closing as of the Effective Time or (ii) are employees of Transferred Sub as of the Effective Time.
“Transferred Intellectual Property” means, collectively, the Transferred Copyrights and Transferred Trade Secrets.
“Transferred Patents” means those Patents identified on Schedule 1.01(f).
“Transferred Shares” means all of the issued and outstanding share capital and any other outstanding equity interests of Transferred Sub.
“Transferred Trade Secrets” means any Trade Secrets owned by the Selling Parties as of the Closing Date that are embodied in the Products and used exclusively in the Business and not embodied or used in or with any other current product or service or planned product or service of Seller or its Subsidiaries; provided, however, that such term shall not include any rights in Trade Secrets that are described within a Patent issuing after the Closing Date related to a patent application that was filed prior to the Closing Date.
“Transition Services Agreement” means the Transition Services Agreement entered into by Buyer and/or a Buyer Designee and Seller simultaneously herewith to become effective upon the Closing as of the Effective Time.
1.02 Index of Other Defined Terms. In addition to those terms defined in Section 1.01, the following terms shall have the respective meanings given thereto in the sections indicated below:
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Defined Terms | | Section |
| | |
Agreement | | Preamble |
Annual Financial Information Date | | Section 3.15(a) |
Assumed Contracts | | Section |
Assumed Liabilities | | Section 2.03 |
Basket | | Section 7.02(e) |
Business Employees | | Section 3.14(c) |
Buyer | | Preamble |
Buyer Approvals | | Section 4.03 |
Buyer Disclosure Schedules | | Article IV |
Buyer Indemnitees | | Section 7.02(a) |
Buyer Preferred Stock | | Section 4.11(a) |
Buyer Sales Tax | | Section 5.09(f) |
Buyer SEC Documents | | Section 4.05(a) |
Bye-Laws | | Section 4.01 |
Claims | | Section 2.01(l) |
Closing | | Section 2.08 |
Confidentiality Agreement | | Section 5.01(a) |
Consideration | | Section 2.06(c) |
Copyrights | | Section 1.01 |
Covenant Contract | | Section 5.13(f) |
Customer Data | | Section 5.16 |
Equipment | | Section 2.01(b) |
Exchange Act | | Section 4.05(a) |
Excluded Assets | | Section 2.02 |
Excluded Claims | | Section 2.02(i) |
Excluded Liabilities | | Section 2.04 |
Excluded Seller Product | | Section 1.01 |
Financial Statements | | Section 3.15(a) |
Include | | Section 9.13 |
Including | | Section 9.13 |
Indemnification Cap | | Section 7.05 |
Indemnitee | | Section 7.02(c) |
Indemnitor | | Section 7.02(c) |
Investment Center | | Section 5.03 |
Israeli Tax Ruling | | Section 5.09(l) |
Leased Real Property | | Section 3.06 |
Losses | | Section 7.02(d) |
Material Contract Consents | | Section 3.09 |
Material Contracts | | Section 3.08 |
Notice of Claim | | Section 7.03(b) |
Parties | | Preamble |
Party | | Preamble |
Patents | | Section 1.01 |
Permits | | Section 2.01(i) |
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Permitted Post-Signing Supplement | | Section 5.02(b) |
Possessing Party | | Section 5.01(c) |
Proceedings | | Section 3.07 |
Quarter Financial Information Date | | Section 3.15(a) |
Receiving Party | | Section 5.01(c) |
Retained Marks | | Section 5.04 |
Sale | | Section 5.20 |
Sales Tax | | Section 5.09(f) |
Sarbanes-Oxley Act | | Section 4.05(d) |
SEC | | Section 4.05(a) |
Seller | | Preamble |
Seller Approvals | | Section 3.03 |
Seller Cash Consideration | | Section 2.06(b) |
Seller Disclosure Schedules | | Article III |
Seller Indemnitees | | Section 7.02(b) |
Seller Stock Consideration | | Section 2.06(b) |
Selling Parties | | Section 1.01 |
Share Encumbrances | | Section 3.23(a)(iii) |
Specially Designated Intellectual Property | | Section 5.01(a) |
Subsidiary Sellers | | Recitals |
Subsidiary Sellers Cash Consideration | | Section 2.06(a) |
Subsidiary Sellers Stock Consideration | | Section 2.06(a) |
Termination Date | | Section 8.01(b)(i) |
Trade Secrets | | Section 1.01 |
Trademarks | | Section 1.01 |
Transferred Assets | | Section 2.01 |
Transferred Shares | | Recitals |
Transferred Sub | | Recitals |
Transferred Sub Contracts | | Section 3.08 |
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(iii) Neither Seller nor Buyer shall, nor shall Seller or Buyer cause or permit the Transferred Sub or its Affiliates to, amend, refile, or otherwise modify any Tax Return relating to Transferred Sub with respect to any Pre-Closing Tax Period if such amendment, refiling or modification could adversely affect Seller.
(iv) In the case of Taxes of Transferred Sub that are payable with respect to a taxable period that begins before and ends on or after the Closing Date, the portion of any such Tax that is allocable to the portion of the period ending on the day before the Closing Date shall be:
(A) in the case of Taxes that are either (x) based upon or related to income, sales, receipts, payroll or other items of income or expense, or (y) imposed in connection with any sale or other transfer or assignment of property (real or personal, tangible or intangible), deemed equal to the amount which would be payable if the taxable year ended at the close of business on the day before the Closing Date; and
(B) in the case of Taxes imposed on a periodic basis with respect to the assets of Transferred Sub, or otherwise measured by the level of any item, deemed to be the amount of such Taxes for the entire period (or, in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period), multiplied by a fraction the numerator of which is the number of calendar days in the period ending the day before the Closing Date and the denominator of which is the number of calendar days in the entire period.
(v) Seller shall be entitled to any refund of, or credit for, Taxes to the extent such refund represents a refund of Taxes paid with respect to a Pre-Closing Tax Period, such credit arises as a result of Taxes paid with respect to a Pre-Closing Tax Period, or such Tax represents a Sales Tax that was the responsibility of Seller pursuant to this Agreement; provided, however, that if any such refund or credit results in a correlative Tax detriment to Buyer or its Affiliates with respect to a Post-Closing Tax Period, Buyer’s obligation with respect to such refund or credit shall be reduced by such Tax detriment. Buyer shall pursue such refund or credit as reasonably requested by Seller, provided that Seller shall reimburse Buyer for its reasonable out of pocket costs (including any Taxes arising from the receipt of such refund, net of any Tax benefit of the payment thereof to Seller hereunder).
(vi) (A) Seller shall be responsible for Taxes imposed on Transferred Sub on or following the Closing Date to the extent such Taxes constitute the recapture of Tax incentives that reduced the liability of Transferred Sub for Taxes with respect to Pre-Closing Tax Periods, but only to the extent such recapture is a direct result of the failure of the Investment Center to approve the transfer of the Transferred Shares to Buyer or Buyer Designee pursuant to this Agreement; provided, that Buyer has complied with its obligations under Section 5.03 with respect to obtaining such approval and has not taken or refrained from taking action that prevented such approval; and (B) Buyer and Transferred Sub shall be responsible for all other Taxes attributable to the recapture of Tax incentives received by Transferred Sub.
(i) Exclusivity of Tax Provisions. Notwithstanding anything to the contrary contained in this Agreement (including Article VII) this Section 5.09 contains the exclusive provisions governing the liability of the parties for Taxes, and no claim for indemnification may be made under any other provision hereof with respect to matters pertaining to Taxes. In the event of a
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conflict between the provisions of this Section 5.09 and any other section of this Agreement, this Section 5.09 shall govern and control.
(j) Adjustment to Cash Consideration. The parties shall treat all indemnification payments made under this Agreement as an adjustment to the Cash Consideration for applicable Tax purposes.
(k) Tax Treatment; Section 338 Election. The Parties acknowledge and agree that, for U.S. federal income Tax purposes, the purchase of the Transferred Shares pursuant to this Agreement shall be treated as a purchase of the assets of the Transferred Sub for an amount equal to the sum of (A) the Subsidiary Sellers Cash Consideration, (B) the fair market value as of the Closing Date of the Subsidiary Sellers Stock Consideration, and (C) each liability or other item of the Transferred Sub to the extent treated as an “amount realized” for U.S. federal income Tax purposes. If requested in writing by Seller, Buyer shall cause to be made, without cost or obligation to Seller, a protective election under Section 338 of the United States Internal Revenue Code of 1986, as amended, with respect to the purchase of the Transferred Shares hereby, as and when requested by Seller.
(l) Israeli Tax Ruling. Buyer has been informed that Subsidiary Sellers intend to prepare and file with the Israeli Tax Authority an application for a ruling determining the tax consequences to Subsidiary Sellers of the sale of the Transferred Shares, specifically with respect to deferral of Israeli taxation on any Subsidiary Sellers Stock Consideration received by Subsidiary Sellers in such sale (the “Israeli Tax Ruling”). Buyer agrees to, and agrees to use commercially reasonable efforts to cause its outside counsel, advisors and accountants to, cooperate as Subsidiary Sellers reasonably request for the purpose of procuring the Israeli Tax Ruling.
5.10 Allocation of Consideration. The Parties agree that, for U.S. federal income Tax purposes, and where permitted all other income Tax purposes, the Subsidiary Sellers Stock Consideration and the Subsidiary Sellers Cash Consideration (together with certain liabilities of Transferred Sub and other amounts) shall be treated as consideration paid for the assets of Transferred Sub as provided in Section 5.09(k). All other consideration paid hereunder (including the assumption of Assumed Liabilities to the extent treated as consideration for applicable Tax purposes) shall be treated as consideration paid for the Transferred Assets (and not the Transferred Shares or the assets of Transferred Sub). Neither Party shall take any position inconsistent with this Section 5.10 in any Tax Return, unless otherwise required by Applicable Law.
5.11 Accounts Receivable. Following the Closing, Buyer shall forward to Seller, immediately upon receipt thereof, any payments of Accounts Receivable of Seller; and Seller shall forward to Buyer, immediately upon receipt thereof, any payments of accounts receivable of Buyer. Promptly following the Closing, the Parties shall cooperate in advising customers to direct to the appropriate Party any future payments by such customers. In determining whether a payment received by either Party is a payment of an Account Receivable of Seller or accounts receivable of Buyer, the receiving Party may rely on any invoice or contract number referred to on the payment or in correspondence accompanying such payment. If a payment, refund or other amount is received by either Buyer, a Buyer Designee or a Selling Party from an account debtor that has not designated the invoice being paid thereby, such payment shall be applied to the earliest invoice outstanding with respect to indebtedness of such account debtor, except for those invoices
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which are subject to a dispute to the extent of such dispute. Following the Closing, Buyer will, at Seller’s expense, provide such cooperation as Seller shall reasonably request in connection with Seller’s collection of outstanding Accounts Receivable of Seller.
5.12 Accounts Payable. To the extent that Buyer receives any invoices for Accounts Payable or statements evidencing amounts owed by Seller to another Party, Buyer will promptly deliver such documents to Seller. To the extent that Seller receives any invoices for Accounts Payable or statements evidencing amounts owed by Buyer to another Party, Seller will promptly deliver such documents to Buyer.
5.13 Operation of the Business Prior to Closing. Between the date of this Agreement and the Closing Date, except as permitted by this Agreement or any of the other Acquisition Documents or as set forth in Schedule 5.13, or unless Buyer shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed), the Selling Parties and Transferred Sub shall use commercially reasonable efforts to operate the Business in the ordinary course of business consistent with past practice and shall use commercially reasonable efforts to preserve the material business relationships with customers, suppliers, distributors and others with whom the Selling Parties deal in connection with the Business in the ordinary course. Without limiting the generality of the foregoing, between the date of this Agreement and the Closing Date, unless Buyer shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed), except as contemplated by this Agreement, any other Acquisition Document or as set forth on Schedule 5.13, Seller shall not (and shall cause each other Selling Party and the Transferred Sub not to):
(a) fail to maintain the Transferred Assets as a whole in at least as good condition as they are being maintained by the Selling Parties on the date hereof, subject to normal wear and tear;
(b) sell, assign, or transfer any of the Transferred Shares and not permit any of the Transferred Shares to be subjected to any Share Encumbrances;
(c) sell, assign, or transfer any of the Transferred Assets, except in the ordinary course of business, consistent with past practice, and not permit any of the Transferred Assets to be subjected to any Lien, other than (i) the Permitted Liens and (ii) Liens that would not reasonably be expected to have a Seller Material Adverse Effect;
(d) fail to pay or discharge when due any Liability of which the failure to pay or discharge would reasonably be expected to cause any material damage or loss to the Transferred Assets and Transferred Shares or Transferred Sub, taken as a whole;
(e) accelerate, amend, terminate, modify or cancel any Material Contract;
(f) enter into or renew (other than an automatic renewal) any Contract that exclusively relates to the Business that (i) provides for payment obligations (whether by a Selling Party or the counterparty thereto) in an aggregate amount for such Contract greater than One Million Dollars ($1,000,000) or which is reasonably likely to extend beyond 2010 (a “Covenant Contract”); (ii) would be a Covenant Contract that, according to its terms, prohibits assignment to Buyer or Buyer Designees (or a purchaser of the Transferred Assets) without the consent of the counterparty
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thereto; or (iii) is a Contract entered into by the Handheld Platform Group of Seller or the Mobile Wireless Group of Seller that would impose on Buyer or any Buyer Designee a non-competition obligation or other use restriction;
(g) fail to maintain its books and records in the usual, regular and ordinary manner on a basis consistent with prior years, except for any change required by a change in GAAP, change resulting from the audit of the financial statements of the Business as contemplated in Section 6.01(f), or a change in the accounting practices of Seller or Transferred Sub generally;
(h) grant to any Business Employee any increase in compensation (except for one-time bonuses to selected Business Employees) or in severance or termination pay, grant any severance or termination pay, or enter into any employment agreement with any such employee, except as may be required under Applicable Law, Seller’s termination policy or any employment or termination agreement in effect on the date hereof or in the ordinary course of business;
(i) acquire or agree to acquire any asset that would constitute Transferred Assets, except in the ordinary course of business;
(j) reduce or discount any prices of the Products, except in the ordinary course consistent with past practice; and
(k) agree or consent to do any of the foregoing.
Notwithstanding the foregoing, between the date hereof and the Closing Date, subject to Section 2.05, Seller and its Subsidiaries may transfer from the Transferred Sub (i) the assets set forth on Schedule 2.05(a), (ii) all Cash, Accounts Receivable and Inventory, and (iii) all other Contracts, employees and other assets and Liabilities, in each case, that are not exclusively related to the Business.
5.14 Employee Information and Access. Seller agrees to provide to Buyer certain general information concerning Seller’s compensation and benefit programs and specific information relating to individual Business Employees, subject to Applicable Law and, to the extent required, any such employee’s proper consent, solely for the purpose of Buyer formulating offers of employment to such employees; provided, however, that Seller will not make personnel records available for inspection or copying.
5.15 Employees.
(a) Employment Offers.
(i) Subject to Applicable Law, Buyer shall make offers of employment to each Business Employee who is not an Excluded Employee to be effective as of the Closing. The offers of employment for each such Business Employee who is not an Excluded Employee will (i) subject to requirements of Applicable Law for the jurisdiction in which the Business Employee is located, include employment terms reasonably determined by Buyer but that, in all events, are substantially similar to and at least as favorable to such Business Employee as his or her existing cash compensation, and also at least as favorable with respect to his or her equity compensation, and
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including participation in all compensation and benefit programs made available to similarly situated employees of Buyer at levels which are in the aggregate substantially equivalent to the value of their compensation and benefits under Seller’s programs, and (ii) supersede any prior agreements regarding the terms and conditions of employment with such Business Employee as in effect prior to the Closing Date. Notwithstanding the previous sentence, in no event shall any prior agreement with respect to Intellectual Property be superseded, except that all Transferred Employees shall be permitted to disclose to Buyer all information in their possession or otherwise known by them which is directly related to the Transferred Assets and Assumed Liabilities after the Closing, but not related to the Excluded Assets or other confidential information of Seller. For purposes of clarification, prior to the Closing, Buyer shall not cause any Business Employee to disclose to Buyer confidential information related to the Business, except as permitted by Seller.
(ii) To the greatest extent permitted by Applicable Law, Buyer shall provide service credit for all periods of service by the Transferred Employees under Buyer’s employee policies and plans except to the extent such service credit would result in the duplication of benefit accrual for the same period of service. Buyer shall be responsible for all Liabilities, salaries, benefits and similar employer obligations that arise after Closing under Buyer’s compensation and benefit plans and policies for all Transferred Employees or pursuant to Section 2.03(d) and as may be agreed by the Parties pursuant to Section 2.05(c). In particular, Buyer shall be responsible for Liabilities with respect to the termination of any Transferred Employees by Buyer after the Closing, including health care continuation coverage with respect to plans established or maintained by Buyer after the Closing to the extent that the Transferred Employees participate therein, and damages or settlements arising out of any claims of wrongful or illegal termination by Buyer following the Closing, and for complying with the requirements of all Applicable Laws with respect to any such termination by Buyer after the Closing.
(iii) Except with respect to Transferred Employees who are employees of the Transferred Sub, subject to Applicable Law, Seller shall be solely responsible for (i) any liabilities or obligations with respect to the Business Employees including the Transferred Employees, that arise prior to the Closing, (ii) any liabilities or obligations with respect to any Business Employees who do not become Transferred Employees, and (iii) subject to Section 2.03(d), any liabilities or obligations with respect to Transferred Employees under the Employee Plans or the Employee Agreements that arise following the Closing.
(iv) Subject to Applicable Law, Seller shall permit the Transferred Employees who are participants in Seller’s SERP Profit Sharing Plan and 401(k) Plan to make direct “roll-overs” of their plan accounts to a designated Buyer tax qualified retirement plan.
(v) With respect to Transferred Employees who are employees of the Transferred Sub, subject to Applicable Law, Buyer shall provide continuity of comparable benefits coverage for such Transferred Employees, including contributions to existing employee accounts or to accounts established by Buyer. Seller and Buyer shall cooperate to identify all amounts relating to accrued benefits under Employee Plans that are held by third parties, such as insurance companies and pension funds. To the extent that such amounts held by third parties are less than the Liabilities of the Employee Plans to which they relate for such Transferred Employees, Seller shall identify and obtain an alternative funding mechanism for such Liabilities in compliance with
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Applicable Law. As of the Closing, the Transferred Sub shall employ only Transferred Employees.
(b) Additional Employees. Seller shall use its commercially reasonable efforts to identify a category of employees of the Selling Parties and make available for the making of employment offers by Buyer at Closing those employees of Seller and/or its Subsidiaries whose services would be needed by Buyer in connection with the Transferred Assets, but who are not listed on Schedule 3.14(c), and whom Buyer, in its sole discretion, may choose to hire, subject to the limitations on provision of information as set forth in Section 5.14. Any such additional employees who are hired by Buyer at Closing shall be considered Transferred Employees for purposes of this Agreement.
(c) Vacation Cash-Outs. Vacation that has been earned, but not taken, by a Transferred Employee as of the Closing Date (a) will be paid by Seller, as required by Applicable Law, as soon as reasonably practicable following the Closing Date to Transferred Employees employed in California or Massachusetts or other jurisdictions where payment is required under Applicable Law, and (b) for all other Transferred Employees, will be credited to the Transferred Employee under Buyer’s vacation policy.
(d) No Condition. Nothing in this Article V shall be construed to establish or impose a condition to Closing regarding the Business Employees’ acceptance of employment with Buyer.
5.16 Protection of Privacy. The data related to customers of the Business which is included in the Transferred Assets (the “Customer Data”) has been collected by the Selling Parties over the internet under the conditions set forth in the Seller Privacy Policy attached as Schedule 5.16 to this Agreement (the “Privacy Policy”) and is transferred to Buyer and/or Buyer Designees subject to the obligations set forth in the Privacy Policy. Buyer covenants and agrees that it will not use, and will cause each Buyer Designee not to use, the Customer Data in any manner that conflicts with the terms of the Privacy Policy.
5.17 Cash Consideration. Buyer shall maintain sufficient cash, available lines of credit or other sources of immediately available funds to enable it to consummate the transactions contemplated by this Agreement, including payment of the Cash Consideration to Seller or the Subsidiary Sellers.
5.18 Stock Consideration.
(a) Prior to Closing, Buyer shall complete the filing of any required notification form for the listing of additional shares or similar application with Nasdaq or such other national exchange on which the Buyer Common Stock is quoted or listed for the issuance of the Stock Consideration.
(b) Buyer agrees that it shall, promptly after the Registration Statement (as defined in the Registration Rights Agreement) has been declared effective, deliver to its transfer agent a letter of instruction as necessary such that (subject to the terms of the Registration Rights Agreement) at any time the Registration Statement is effective, the Stock Consideration may be sold pursuant to the prospectus contained in the Registration Statement. In addition, the legend set forth in Section 3.21 shall be removed and Buyer shall issue (or instruct the transfer agent to issue) a certificate without such legend to the holder of any Stock Consideration upon which it is stamped, if, unless otherwise
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required by state securities laws, (a) such holder provides Buyer with an opinion of counsel, in form, substance and scope reasonably acceptable to Buyer, to the effect that a public sale or transfer of such Stock Consideration may be made without registration under the Securities Act; or (b) such holder provides Buyer with reasonable assurances reasonably acceptable to Buyer that such Stock Consideration can be sold under Rule 144(k).
5.19 Release of Liens. On or prior to the Closing, Seller shall use all commercially reasonable efforts to cause any and all Liens (other than Permitted Liens) and Share Encumbrances recorded against or otherwise respecting the Transferred Assets, Assumed Liabilities and Transferred Shares to be satisfied and released in full and shall cause the holders of such Liens and Share Encumbrances to file all documents and make all filings in all relevant jurisdictions necessary to release such Liens and Share Encumbrances. All such releases, filings and documentation shall be in form and substance reasonably acceptable to Buyer.
5.20 Exclusive Dealing. From and after the date hereof to the earlier of the Closing Date or the termination of this Agreement pursuant to Article VIII, neither Seller, any of its Subsidiaries nor any of its or their respective officers, directors, attorneys, accountants, investment bankers, advisors and other agents shall, directly or indirectly, (i) solicit or encourage inquiries or proposals, participate in any negotiations, or cooperate in any manner relating to the possible acquisition of the Business or of all or a material portion of the following, taken as a whole, to anyone other than Buyer or a Buyer Designee (a “Sale”): (a) Transferred Sub, (b) Transferred Assets and (c) Excluded Assets which are Intellectual Property contemplated to be licensed to Buyer pursuant to an Intellectual Property Agreement except (1) where Seller retains a license with rights to sublicense such Intellectual Property or (2) for transfers and licenses by a Selling Party in the ordinary course of business consistent with past practice; (ii) provide information with respect to the Transferred Assets, Transferred Sub or the Business to any Person other than Buyer and its agents and representatives relating to a Sale; (iii) otherwise cooperate with, facilitate or encourage any effort or attempt by any Person with regard to a Sale; or (iv) enter into any agreement with any Person providing for a Sale. For sake of clarification, nothing in this Section 5.20 shall prevent discussion by Seller or its Subsidiaries with third parties as otherwise permitted hereunder in connection with the completion of the transactions contemplated by this Agreement.
5.21 Satisfaction of Warranty Obligations. After the Closing, Buyer agrees to satisfy any and all product liability, warranty, refund and similar claims and obligations which arise with respect to Products sold by Seller prior to the Closing Date in a manner consistent with the applicable Seller written warranty terms. Unless otherwise agreed by the Parties in the Transition Services Agreement, Buyer shall, on a periodic basis as agreed by the Parties, deliver to Seller a written statement of warranty costs, which statement shall set forth all such obligations satisfied by Buyer during such period. Promptly following receipt of such statement, Seller shall reimburse Buyer for all such costs.
5.22 Further Assurances. Upon the reasonable request of Buyer, Seller shall on and after the Closing Date, without further consideration, execute and deliver, and cause to be executed and delivered, to Buyer such deeds, assignments and other instruments, and take such other reasonable actions, as may be reasonably requested by Buyer and are required or desirable to effectuate
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completely the transfer and assignment of the Transferred Assets and the Transferred Shares and to otherwise carry out the purposes of this Agreement.
5.23 Export Compliance. From and after the Closing Date, Buyer and each Buyer Designee shall comply at its own expense with all conditions and requirements imposed on Buyer or such Buyer Designee required to comply with ECCN 3E002 of the U.S. Export Administration Regulations and such other similar regulations that are imposed on the Transferred Assets and the Transferred Sub. Buyer agrees that it will not export, either directly or indirectly, any Product or associated technology (including Sorted Wafers (as described in the Supply Agreement) or systems incorporating such Product or Sorted Wafers) without first obtaining any required license or other approval from the appropriate host Governmental Authority with appropriate authority.
ARTICLE VI
CONDITIONS TO CLOSING
6.01 Conditions to Obligations of Buyer. The obligations of Buyer to consummate the Closing are subject to the satisfaction or written waiver of each of the following conditions:
(a) Performance by Seller. (i) Seller shall have performed, complied with or satisfied in all material respects each of its covenants, obligations and agreements hereunder required to be performed, complied with or satisfied by it on or prior to the Closing Date, and (ii) Buyer shall have received a certificate signed by a duly authorized executive officer of Seller to the foregoing effect and to the effect that the conditions specified within this Section 6.01(a) have been satisfied. A failure of the representations and warranties to be true and correct at signing or to remain true and correct thereafter shall not itself be deemed to be a failure of any condition.
(b) No Violation. No Governmental Authority shall have enacted, issued, promulgated or entered any Applicable Law which is in effect on the Closing Date which has or would have the effect of prohibiting, restraining or enjoining the consummation of the transactions contemplated by this Agreement. No temporary restraining order, preliminary or permanent injunction, cease and desist order or other order issued by any court or other Governmental Authority that has the effect of making the transactions contemplated hereby illegal or otherwise prohibiting consummation of the transfers contemplated hereby or the consummation of the Closing, or imposing upon Buyer material fines or penalties in respect thereof, shall be in effect as of the Closing Date, and there shall be no pending or threatened actions or proceedings by any Governmental Authority (or determinations by any Governmental Authority) challenging or in any manner seeking to prohibit the transfer contemplated hereby or the consummation of the Closing.
(c) Acquisition Documents. Each Selling Party shall have executed and delivered to Buyer all Acquisition Documents to which such Selling Party is a party and shall not have rejected or repudiated any Acquisition Document executed prior to Closing to become effective upon Closing as of the Effective Time.
(d) HSR Approvals. The waiting period (and any extension thereof) applicable to the consummation of the transactions contemplated hereby under the HSR Act, and any other applicable similar merger notification laws or regulations of foreign Governmental Authorities,
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shall have expired or been terminated, and any applicable filings or approvals under the HSR Act, and any other applicable similar merger notification laws or regulations of foreign Governmental Authorities that are required to be made or obtained prior to Closing shall have been made or obtained.
(e) Consents. Seller shall have delivered Buyer all Material Contract Consents listed on Schedule 6.01(e) in writing from the applicable counterparty.
(f) Audited Financial Statements. Buyer shall have received from Seller audited financial statements with respect to the Business satisfying Buyer’s requirements of the SEC with respect to the historical financial statements of the acquired business be included in Buyer’s SEC filings following the Closing pursuant to the requirements of Form 8-K pursuant to the Exchange Act and Regulation S-X, as altered as a result of the grant of any waiver or relief by the SEC.
6.02 Conditions to Obligations of Seller. The obligations of Seller to consummate the Closing are subject to the satisfaction or written waiver of each of the following conditions:
(a) Performance by Buyer. (i) Buyer shall have performed, complied with or satisfied in all material respects each of its covenants, obligations and agreements hereunder required to be performed, complied with or satisfied by it on or prior to the Closing Date, and (ii) Seller shall have received a certificate signed by a duly authorized executive officer of Buyer to the foregoing effect and to the effect that the conditions specified within this Section 6.02(a) have been satisfied.
(b) No Violation. No Governmental Authority shall have enacted, issued, promulgated or entered any Applicable Law which is in effect on the Closing Date which has or would have the effect of prohibiting, restraining or enjoining the consummation of the transactions contemplated by this Agreement. No temporary restraining order, preliminary or permanent injunction, cease and desist order or other order issued by any court or other Governmental Authority that has the effect of making the transactions contemplated hereby illegal or otherwise prohibiting consummation of the transfers contemplated hereby or the consummation of the Closing, or imposing upon Seller or its Subsidiaries material fines or penalties in respect thereof, shall be in effect as of the Closing Date, and there shall be no pending or threatened actions or proceedings by any Governmental Authority (or determinations by any Governmental Authority) challenging or in any manner seeking to prohibit the transfer contemplated hereby or the consummation of the Closing.
(c) Acquisition Documents. Buyer and each Buyer Designee shall have executed and delivered to Seller all Acquisition Documents to which Buyer or such Buyer Designee is a party and shall not have rejected or repudiated any Acquisition Document executed prior to the Closing Date to become effective upon Closing as of the Effective Time.
(d) Opinion of Counsel to Buyer. In the event Seller elects to receive any Stock Consideration in accordance with Section 2.07, Seller shall have received from counsel to Buyer an opinion addressed to Seller, dated the Closing Date, in form and substance reasonably acceptable to Seller with respect to the issuance of Buyer Common Stock.
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(e) HSR Approvals. The waiting period (and any extension thereof) applicable to the consummation of the transactions contemplated hereby under the HSR Act, and any other applicable similar merger notification laws or regulations of foreign Governmental Authorities, shall have expired or been terminated, and any applicable filings or Governmental Approvals under the HSR Act, and any other similar applicable merger notification laws or regulations of foreign Governmental Authorities that are required to be made or obtained prior to Closing shall have been made or obtained.
(f) Closing Consideration. Buyer shall have available for delivery to Seller and Subsidiary Sellers, as applicable, (i) sufficient working capital to pay the Cash Consideration and (ii) certificates representing the Stock Consideration in the name of Seller and/or Subsidiary Sellers, as applicable.
(g) Securities Exemption; Listing. The issuance of any Stock Consideration pursuant to this Agreement will be exempt from the registration requirements of the Securities Act and the registration and/or qualification requirements of all applicable state securities laws, and Buyer shall have filed all required notification forms for the listing of additional shares or similar application with Nasdaq or such other national exchange on which the Buyer Common Stock is quoted or listed for the issuance of the Stock Consideration.
ARTICLE VII
INDEMNIFICATION
7.01 Survival. The representations and warranties of the Parties contained in this Agreement shall survive the execution and delivery of this Agreement for a period beginning on the date hereof and ending at 5:00 p.m., California time, on the date that is twelve (12) months after the Closing Date; provided, however, that the representations and warranties set forth in Section 3.12 and Section 3.23(e) shall not survive the Closing; provided, further, that the representations and warranties set forth in Section 3.23(a) shall survive until the date that is five (5) years from the Closing Date. Upon the expiration of a representation or warranty pursuant to this Section 7.01, unless written notice of a claim based on such representation or warranty specifying in reasonable detail the facts on which the claim is based shall have been delivered to the Indemnitor prior to the expiration of such representation or warranty, such representation or warranty shall be deemed to be of no further force or effect, as if never made, and no action (other than for fraud) may be brought based on the same, whether for indemnification, breach of contract, tort or under any other legal theory. All covenants and agreements of the Parties set forth in this Agreement shall survive indefinitely to the extent necessary to give effect to their terms.
7.02 Indemnification.
(a) Indemnification Provisions for Buyer. Subject to the provisions of Section 7.01, from and after the Closing Date, Buyer and its Affiliates, officers, directors, representatives and agents (collectively the “Buyer Indemnitees”) shall be indemnified and held harmless by Seller from and against and in respect of any and all Losses (as defined below) incurred by any Buyer Indemnitee resulting from:
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