Arriver Holdco 8K Qualcomm and SSW Partners Reach Definitive Agreement to Acquire Veoneer | VNE 4 Oct 21

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

by and among

QUALCOMM INCORPORATED,

SSW HOLDCO LP,

SSW MERGER SUB CORP

and

VEONEER, INC.

Dated as of October 4, 2021

TABLE OF CONTENTS

			Page

ARTICLE I DEFINITIONS			2

	Section 1.1	Definitions	2

ARTICLE II THE MERGER			2

	Section 2.1	The Merger	2
	Section 2.2	The Closing	3
	Section 2.3	Effective Time	3
	Section 2.4	Certificate of Incorporation and Bylaws	4
	Section 2.5	Board of Directors	4
	Section 2.6	Officers	4

ARTICLE III EFFECT OF THE MERGER ON CAPITAL STOCK; EXCHANGE OF CERTIFICATES			4

	Section 3.1	Effect on Securities	4
	Section 3.2	Payment for Securities; Exchange of Certificates	5
	Section 3.3	Company Equity Awards	8
	Section 3.4	Lost Certificates	9
	Section 3.5	Dissenting Shares	9
	Section 3.6	Transfers; No Further Ownership Rights	10

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY			10

	Section 4.1	Organization and Qualification; Subsidiaries	10
	Section 4.2	Capitalization	11
	Section 4.3	Authority Relative to Agreement	13
	Section 4.4	No Conflict; Required Filings and Consents	14
	Section 4.5	Permits; Compliance With Laws	15
	Section 4.6	Company SEC Documents; Financial Statements	16
	Section 4.7	Information Supplied	16
	Section 4.8	Disclosure Controls and Procedures	17
	Section 4.9	Absence of Certain Changes or Events	17
	Section 4.10	No Undisclosed Liabilities	17
	Section 4.11	Litigation	17
	Section 4.12	Employee Benefit Plans	18
	Section 4.13	Labor Matters	20
	Section 4.14	Intellectual Property Rights	20
	Section 4.15	Taxes	23
	Section 4.16	Material Contracts	25
	Section 4.17	Real Property	28
	Section 4.18	Environmental	28

Section 4.19	Key Company Customers; Key Company Suppliers	29
Section 4.20	Quality and Safety of Products	30
Section 4.21	Anti-Bribery; Export Controls and Sanctions	29
Section 4.22	Brokers	31
Section 4.23	Opinion of Financial Advisor	31
Section 4.24	Insurance	32
Section 4.25	Takeover Statutes	32
Section 4.26	Termination of Magna Agreement	32
Section 4.27	No Other Representations or Warranties	32

ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE ACQUIRING PARTIES AND MERGER SUB			32

	Section 5.1	Organization and Qualification	33
	Section 5.2	Authority Relative to Agreement	34
	Section 5.3	No Conflict; Required Filings and Consents	35
	Section 5.4	Litigation	35
	Section 5.5	Absence of Certain Agreements	35
	Section 5.6	Information Supplied	36
	Section 5.7	Sufficient Funds; Investment and Separation Matters Agreement	36
	Section 5.8	Capitalization of Merger Sub	37
	Section 5.9	Investment Intention	37
	Section 5.10	Brokers	37
	Section 5.11	Solvency	36
	Section 5.12	Share Ownership	37
	Section 5.13	WARN Act	38
	Section 5.14	Management Agreements	38
	Section 5.15	Acknowledgment of Disclaimer of Other Representations and Warranties	38

ARTICLE VI COVENANTS AND AGREEMENTS			39

	Section 6.1	Conduct of Business by the Company Pending the Merger	40
	Section 6.2	Preparation of the Proxy Statement; Stockholders’ Meeting	44
	Section 6.3	Appropriate Action; Consents; Filings	46
	Section 6.4	Access to Information; Confidentiality	48
	Section 6.5	Non-Solicitation; Competing Proposals; Intervening Event	50
	Section 6.6	Directors’ and Officers’ Indemnification and Insurance	54
	Section 6.7	Notification of Certain Matters	56
	Section 6.8	Public Announcements	56
	Section 6.9	Employee Matters	57
	Section 6.10	Arriver/Non-Arriver Separation Planning and Cooperation	59
	Section 6.11	Repayment of Indebtedness; Treatment of Convertible Notes	62
	Section 6.12	Integration Planning	65
	Section 6.13	Merger Sub; Acquiring Parties’ Affiliates	65
	Section 6.14	No Control of the Company’s Business	66
	Section 6.15	Rule 16b-3 Matters	66

iii

	Section 6.16	Stock Exchange Matters	66
	Section 6.17	Takeover Laws	66
	Section 6.18	Investment and Separation Matters Agreement; Obligations of Acquisition Parties	66
	Section 6.19	Financing Arrangements	66

ARTICLE VII CONDITIONS TO THE MERGER			67

	Section 7.1	Conditions to the Obligations of Each Party	67
	Section 7.2	Conditions to the Obligations of the Acquiring Parties and Merger Sub	68
	Section 7.3	Conditions to the Obligations of the Company	69

ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER			68

	Section 8.1	Termination	69
	Section 8.2	Effect of Termination	76
	Section 8.3	Termination Fees; Expenses	70
	Section 8.4	Amendment	72

	Section 8.5	Extension; Waiver	72
	Section 8.6	Expenses; Transfer Taxes	73
	Section 8.7	Magna Payment	73

ARTICLE IX GENERAL PROVISIONS			74

	Section 9.1	Non-Survival of Representations, Warranties and Agreements	76
	Section 9.2	Notices	76
	Section 9.3	Interpretation; Certain Definitions	76
	Section 9.4	Severability	76
	Section 9.5	Assignment	76
	Section 9.6	Entire Agreement	76
	Section 9.7	No Third Party Beneficiaries	76
	Section 9.8	Governing Law	77
	Section 9.9	Specific Performance	77
	Section 9.10	Consent to Jurisdiction	77
	Section 9.11	Counterparts	78
	Section 9.12	WAIVER OF JURY TRIAL	78

Appendix A			A-1

Appendix B			B-1

Index of Defined Terms

	Page(s)

Acceptable Confidentiality Agreement	52, A-1
Acquiring Parties	1, A-1
Acquiring Party Material Adverse Effect	A-1
Action	A-1
Adverse Recommendation Change	52, A-1
Affiliate	A-1
Aggregate Merger Consideration	A-1
Agreement	1, A-1
Alternative Acquisition Agreement	51, A-1
Antitrust Laws	A-1
Arriver Business	A-1
Arriver Sale	1, A-2
Arriver/Non-Arriver Separation Planning	1, A-2
Blue Sky Laws	A-2
Book-Entry Evidence	4, A-2
Bribery Act	30, A-2
Business Day	A-2
CARES Act	A-2
CEO Direct Report	A-2
Certificate of Merger	3, A-2
Certificates	4, A-2
Closing	3, A-2
Closing Date	3, A-2
Closing Notice	A-2
Code	A-3
Company	1, A-3
Company 401(k) Plan	A-3
Company Benefit Plan	A-3
Company Board	1, A-3
Company Bylaws	11, A-3
Company Capital Stock	11, A-3
Company Charter	11, A-3
Company Common Stock	1, A-3
Company Data	A-3
Company Debt	65, A-3
Company Disclosure Letter	A-3
Company Equity Awards	A-3
Company Equity Plan	A-3
Company Intellectual Property Rights	A-4
Company Material Adverse Effect	68, A-4

Company Material Contract	24, A-5
Company Option	A-5
Company Option Consideration	8, A-5
Company Owned IP	19, A-5
Company Permits	14, A-5
Company POA Notice	66
Company Privacy Policies	A-5
Company Products	A-5
Company PSU	A-6
Company PSU Consideration	8, A-6

Company Recommendation	A-6
Company Registered IP	A-6
Company Related Parties	74, A-6
Company RSU	A-6
Company RSU Consideration	8, A-6
Company SEC Documents	15, A-6
Company Securities	A-6
Company Service Provider	A-6
Company Stock Units	A-6
Company Stockholder Approval	13, A-6
Company Stockholders Meeting	44, A-6
Company Technology	A-6
Competing Proposal	54, A-6
Confidentiality Agreement	A-7
Consent	14, A-7
Continuation Period	58, A-7
Continuing Employees	58, A-7
Contract	A-7
control	A-7
Convertible Notes	A-7
Convertible Notes Indenture	A-7
Copyrights	A-10
COVID Measures	A-7
COVID-19	A-7
D&O Indemnified Parties	55, A-7
Data Processor	A-7
Debt Payoff Amount	65, A-7
DGCL	1, A-7
Dissenting Shares	9, A-7
dollars	A-7
Domain Names	A-10
Effective Time	3, A-8
Environmental Laws	A-8
ERISA	A-8
ERISA Affiliate	A-8
Exchange Act	A-8

Exchange Fund	5, A-8
Existing D&O Insurance Policies	56, A-8
Expenses	A-8
Export Control Laws	A-8
Extended Outside Date	70
FCPA	29, A-8
Final Extended Outside Date	70
Financial Advisors	30, A-8
GAAP	A-9
Governmental Authority	A-9
Hazardous Materials	A-9
HSR Act	A-9
Information Security Program	A-9
Initial Outside Date	70
Inside Date	A-9
Intellectual Property Rights	A-9
Intervening Event	55, A-10
Investment and Separation Matters Agreement	1, A-10
Investment Screening Laws	A-10
IRS	A-10

IT Assets	A-10
IT Systems	A-10
Key Company Customers	28, A-10
Key Company Suppliers	28, A-10
Knowledge	A-10
Law	A-10
Leased Real Property	27, A-11
Lien	A-11
Magna	2, A-11
Magna Agreement	2, A-11
Magna Confidentiality Agreement	A-11
Magna Payment	75, A-11
Magna Termination Fee	2, A-11
Magna Termination Fee Refund	75, A-11
Malicious Code	A-11
Maximum Amount	56, A-11
Measurement Date	11, A-11
Merger	1, A-11
Merger Consideration	4, A-11
Merger Sub	1, A-11
Nasdaq	A-11
Nasdaq Stockholm	A-11
New Plans	59, A-11
Non-Arriver Business	A-11
Non-Arriver Extraction	1, A-12
Non-Arriver Extraction Effective Time	A-12

vii

Notice of Adverse Recommendation	53, A-12
Notice Period	53, A-12
NYSE	14, A-12
Old Plans	59, A-12
Open License Terms	A-12
Order	A-12
Organizational Documents	A-12
Outside Date	70, A-12
Owned Real Property	27, A-12
Patents	A-9
Paying Agent	5, A-12
Paying Agent Agreement	5, A-12
Payoff Letter	65, A-12
Permitted Lien	A-12
Person	A-13
Personal Data	A-13
Privacy Requirements	A-14
Process	A-14
Processed	A-14
Processing	A-14
Proxy Statement	43, A-14
Public Software	A-14
QUALCOMM	1, A-15
QUALCOMM Technology Licensing	A-15
Real Property Leases	27, A-15
Regulatory Conditions	70
Release	A-15
Remedy Actions	47, A-15
Representatives	A-15
Required Merger Payments	35, A-15

Reverse Termination Fee	A-15
Sanctions Laws	A-15
SDR	A-15
SEB	44, A-15
SEC	A-15
Secretary	3, A-15
Securities Act	A-15
Security Incident	A-15
Solvent	36, A-15
Source Code	A-15
Specified Agreement	A-16
Specified IP Contract	26
Spin Date	A-16
SSW	1, A-16
SSW 401(k) Plan	59, A-16
Subsidiary	A-16

viii

Superior Proposal	54, A-16
Surviving Corporation	2, A-16
Tail Coverage	56, A-16
Takeover Laws	31, A-16
Tax	A-16
Tax Matters Agreement	24, A-16
Tax Returns	A-16
Taxes	A-16
Technology	A-16
Termination Fee	A-17
Third Party	A-17
Trade Secrets	A-10
Trademarks	A-10
Treasury Regulations	A-17
U.S.	A-17
United States	A-17
VDR	32, A-17
WARN	A-17
Willful Breach	A-17

THIS AGREEMENT AND PLAN OF MERGER, dated as of October 4, 2021 (this “Agreement”), is made by and among QUALCOMM Incorporated, a Delaware corporation (“QUALCOMM”), SSW HoldCo LP, a Delaware limited partnership (“SSW” and, together with QUALCOMM, the “Acquiring Parties”), SSW Merger Sub Corp, a Delaware corporation and a direct, wholly owned Subsidiary of SSW (“Merger Sub”), and Veoneer, Inc., a Delaware corporation (the “Company”).

W I T N E S S E T H:

WHEREAS, the Company, SSW and Merger Sub desire to effect the merger of Merger Sub with and into the Company, pursuant to the Delaware General Corporation Law (the “DGCL”), with the Company continuing as the surviving corporation and as a direct, wholly owned Subsidiary of SSW (the “Merger”), on the terms and subject to the conditions set forth in this Agreement, pursuant to which, except as otherwise provided in Section 3.1, each share of common stock, par value $1.00 per share, of the Company (the “Company Common Stock”) issued and outstanding immediately prior to the Effective Time will be converted into the right to receive the Merger Consideration, without interest and subject to any withholding of Taxes required by applicable Law;

WHEREAS, concurrently with the execution of this Agreement, QUALCOMM and SSW have entered into an Investment and Separation Matters Agreement, dated as of the date of this Agreement (the “Investment and Separation Matters Agreement”) setting forth the terms and conditions pursuant to which, following the Closing of the Merger, the Non-Arriver Business will be extracted from the Company (the “Non-Arriver Extraction”) and immediately thereafter the Arriver Business will be sold to QUALCOMM by way of a merger of the Company with and into a designated Subsidiary of QUALCOMM, with the Company surviving such merger as a wholly owned Subsidiary of QUALCOMM (the “Arriver Sale”);

WHEREAS, QUALCOMM and SSW desire to effect the Non-Arriver Extraction as promptly as possible following Closing of the Merger, on the terms and subject to the conditions set forth in this Agreement and the Investment and Separation Matters Agreement, and the Company has agreed to reasonably cooperate in effecting the Non-Arriver Extraction and the Arriver Sale (the “Arriver/Non-Arriver Separation Planning”), in accordance with the terms and conditions set forth in this Agreement and subject to applicable Law;

WHEREAS, the board of directors of the Company (the “Company Board”) has unanimously (a) approved this Agreement, the Merger and the other transactions contemplated hereby, (b) determined that the Merger and the other transactions contemplated hereby, taken together, are advisable and in the best interests of the Company and its stockholders and (c) on the terms and subject to the conditions as set forth in this Agreement, resolved to recommend the adoption of this Agreement by the Company’s stockholders;

WHEREAS, the general partner of SSW and the board of directors of Merger Sub have each unanimously (a) approved this Agreement, the Merger, Non-Arriver Extraction and sale to QUALCOMM of the Arriver Business and the other transactions contemplated hereby, (b) determined that the Merger and the other transactions contemplated hereby, taken together, are advisable and in the best interests of SSW, Merger Sub and their respective equity holders and (c) recommended the adoption of this Agreement by Merger Sub’s sole stockholder;

WHEREAS, the board of directors of QUALCOMM has unanimously (a) approved this Agreement, QUALCOMM’s acquisition of the Arriver Business and the other transactions contemplated hereby and (b) determined that the transactions contemplated hereby, taken together, are advisable and in the best interests of QUALCOMM and its stockholders;

WHEREAS, that certain Agreement and Plan of Merger, dated as of July 22, 2021 (the “Magna Agreement”), by and among Magna International Inc., an Ontario corporation (“Magna”), 2486345 Delaware Corporation, a Delaware corporation and indirect, wholly owned Subsidiary of Magna, and the Company, has been validly terminated in accordance with its terms prior to the execution and delivery of this Agreement by the Company;

WHEREAS, concurrently with and as a condition to the effectiveness of such termination of the Magna Agreement, the Acquiring Parties, on behalf of the Company, have paid in full the termination fee in the amount of $110,000,000 to Magna by wire transfer of immediately available funds (the “Magna Termination Fee”) in accordance with the terms of the Magna Agreement, in full satisfaction of all of the Company’s remaining obligations under the Magna Agreement;

WHEREAS, the sole stockholder of Merger Sub has adopted this Agreement and the consummation of the transactions contemplated hereby, including the Merger; and

WHEREAS, each of the Acquiring Parties, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger.

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties and covenants and subject to the conditions herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1

Definitions. Defined terms used in this Agreement have the respective meanings ascribed to them by definition in this Agreement or in Appendix A.

ARTICLE II

THE MERGER

Section 2.1

The Merger. Upon the terms and subject to the conditions of this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company, whereupon the separate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation (the “Surviving Corporation”) and shall continue to be governed by the laws of the State of Delaware. At the election of the Acquiring Parties, any direct or indirect wholly owned Subsidiary of SSW, that is a Delaware corporation, may be substituted for Merger Sub as a constituent corporation in the Merger so long as such substitution has no impact on the transactions contemplated hereby. In such event, the parties hereto shall execute an appropriate amendment to this Agreement in order to reflect the foregoing.

Section 2.2

The Closing. Subject to the provisions of Article VII, the closing of the Merger (the “Closing”) shall take place at 9:00 a.m. (New York City time) on the third (3^rd) Business Day after the later of (a) the Inside Date and (b) the satisfaction or, to the extent not prohibited by Law, waiver of all of the conditions set forth in Article VII (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or, to the extent not prohibited by Law, waiver of such conditions), and the Closing shall take place at the offices of Skadden, Arps, Slate, Meagher & Flom LLP; One Manhattan West; New York, New York 10001, or by the electronic exchange of documents, unless another time, date or place is agreed to in writing by the Company and the Acquiring Parties (such date being the “Closing Date”); provided, that, unless otherwise agreed to in writing by QUALCOMM, the Closing shall not occur on a date that is during the last five (5) Business Days prior to the last Business Day of any fiscal quarter of QUALCOMM and shall in such case be deferred until the first Business Day of the immediately following fiscal quarter; provided, further, that if all of the conditions to the respective obligations of the Acquiring Parties and Merger Sub to consummate the Merger set forth in Article VII are satisfied or (to the extent not prohibited by Law) waived by the Acquiring Parties and the Closing would have occurred but for the Inside Date, then all such conditions shall be deemed to be satisfied from and after such date on which the Closing would have occurred but for the Inside Date (other than the conditions set forth in Section 7.1(a) and Section 7.1(c) and except where the Company’s Willful Breach after such date proximately caused the failure of the condition in Section 7.2(b) to be satisfied).

Section 2.3

Effective Time.

(a)

Concurrently with the Closing, each of the Company, the Acquiring Parties and Merger Sub shall cause a certificate of merger with respect to the Merger (the “Certificate of Merger”) to be executed, acknowledged, delivered to and filed with the Office of the Secretary of State of the State of Delaware (the “Secretary”) as provided under the DGCL. The Merger shall become effective on the date and time at which the Certificate of Merger has been received for filing by the Secretary (such date and time of filing, or such later time as may be agreed to by the Acquiring Parties, Merger Sub and the Company and set forth in the Certificate of Merger, being hereinafter referred to as the “Effective Time”).

(b)

The Merger shall have the effects set forth in the applicable provisions of the DGCL, this Agreement and the Certificate of Merger. Without limiting the generality of the foregoing, from and after the Effective Time, the Surviving Corporation shall possess all properties, rights, privileges, powers and franchises of the Company and Merger Sub, and all of the claims, obligations, liabilities, debts and duties of the Company and Merger Sub shall become the claims, obligations, liabilities, debts and duties of the Surviving Corporation.

Section 2.4

Certificate of Incorporation and Bylaws. Subject to compliance with Section 6.6, at the Effective Time, the certificate of incorporation and bylaws of the Surviving Corporation shall be amended and restated to be identical to the certificate of incorporation and bylaws of Merger Sub, except that the name of the Merger Sub set forth therein shall be changed to the name of the Surviving Corporation, until thereafter amended in accordance with the applicable provisions of the certificate of incorporation and bylaws of the Surviving Corporation and the DGCL, except that (i) in each case, the name of the Surviving Corporation shall be “Veoneer, Inc.” and (ii) the indemnity and exculpation provisions shall be the same as those under the Company’s certificate of incorporation and bylaws, respectively, in each case as in effect as of the date of this Agreement.

Section 2.5

Board of Directors. The board of directors of the Surviving Corporation effective as of, and immediately following, the Effective Time shall consist of the members of the board of directors of Merger Sub immediately prior to the Effective Time, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated and qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation.

Section 2.6

Officers. From and after the Effective Time, the officers of the Company at the Effective Time shall be the officers of the Surviving Corporation, until their respective successors are duly elected or appointed and qualified in accordance with applicable Law.

ARTICLE III

EFFECT OF THE MERGER ON CAPITAL STOCK; EXCHANGE OF CERTIFICATES

Section 3.1

Effect on Securities. At the Effective Time (or such other time specified in this Section 3.1), by virtue of the Merger and without any action on the part of the Company, SSW, Merger Sub or any holder of any securities of the Company or Merger Sub or any other Person:

(a)

Cancellation of Company Securities. Each share of Company Common Stock held by the Company or any Subsidiary of the Company (including shares held as treasury stock) or held, directly or indirectly, by SSW or Merger Sub or any of their wholly owned Subsidiaries immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist as issued or outstanding shares, and no consideration or payment shall be delivered in exchange therefor or in respect thereof.

(b)

Conversion of Company Securities. Except as otherwise provided in this Agreement, each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than any shares cancelled pursuant to Section 3.1(a) and any Dissenting Shares) shall be converted into the right to receive $37.00 per share of Company Common Stock in cash (the “Merger Consideration”), without interest and subject to any withholding of Taxes required by applicable Law. Each share of Company Common Stock to be converted into the right to receive the Merger Consideration as provided in this Section 3.1(b) shall no longer be issued or outstanding and shall automatically be cancelled and shall cease to exist, and the holders of certificates (the “Certificates”) or book-entry evidence of shares (“Book-Entry Evidence”) which immediately prior to the Effective Time represented such shares of Company Common Stock shall cease to have any rights with respect to such Company Common Stock other than the right to receive, upon surrender of such Certificates or Book-Entry Evidence in accordance with Section 3.2, the Merger Consideration without interest thereon and subject to any withholding of Taxes required by applicable Law.

(c)

Conversion of Merger Sub Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof, each share of common stock, $1.00 par value per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall automatically be converted into and become 1,000 fully paid, non-assessable shares of common stock, $1.00 par value per share, of the Surviving Corporation and shall constitute the only issued or outstanding shares of capital stock of the Surviving Corporation.

(d)

Adjustments. Without limiting the other provisions of this Agreement, if at any time during the period between the date of this Agreement and the Effective Time, any change in the number of outstanding shares of Company Common Stock shall occur as a result of a reclassification, recapitalization, stock split (including a reverse stock split) or similar event, or combination, exchange or readjustment of shares, or any stock dividend or distribution with a record date during such period, the Merger Consideration shall be equitably adjusted to provide the same economic effect as contemplated by this Agreement prior to such event. Nothing in this Section 3.1(d) shall be construed to permit any party to take any action that is otherwise prohibited or restricted by any other provision of this Agreement.

Section 3.2

Payment for Securities; Exchange of Certificates.

(a)

Designation of Paying Agent; Deposit of Exchange Fund. No later than ten (10) days prior to the Effective Time, the Acquiring Parties shall, at their sole cost and expense, designate a reputable bank or trust company (the “Paying Agent”) that is organized and doing business under the laws of the United States, the identity and the terms of appointment of which to be reasonably acceptable to the Company, to act as paying agent for the payment of the Aggregate Merger Consideration, and shall enter into an agreement (the “Paying Agent Agreement”) relating to the Paying Agent’s responsibilities with respect thereto, in form and substance reasonably acceptable to the Company. Concurrently with the filing of the Certificate of Merger, SSW shall, and QUALCOMM shall cause SSW to, deposit, or cause to be deposited with the Paying Agent, cash constituting an amount equal to the Aggregate Merger Consideration (such Aggregate Merger Consideration as deposited with the Paying Agent, the “Exchange Fund”). In the event the Exchange Fund shall be insufficient to make the payments contemplated by Section 3.1(b), SSW shall, and QUALCOMM shall cause SSW to, promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount which is equal to the deficiency in the amount required to make such payments in full. The Acquiring Parties shall cause the Exchange Fund to be (i) held for the benefit of the holders of Company Common Stock and (ii) applied promptly to making the payments pursuant to Section 3.1(b). The Exchange Fund shall not be used for any purpose other than to fund payments pursuant to Section 3.1, except as expressly provided for in this Agreement.

(b)

Procedures for Exchange.

(i) Certificates. As promptly as reasonably practicable following the Effective Time and in any event not later than the second (2nd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of a Certificate that immediately prior to the Effective Time represented outstanding shares of Company Common Stock (A) a letter of transmittal, which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) to the Paying Agent and which shall be in the form and have such other provisions as the Acquiring Parties and the Company may reasonably specify and (B) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration into which the number of shares of Company Common Stock previously represented by such Certificate shall have been converted pursuant to this Agreement (which instructions shall be in the form and have such other provisions as the Acquiring Parties and the Company may reasonably specify).

(ii) Book-Entry Evidence. As promptly as reasonably practicable following the Effective Time and in any event not later than the second (2nd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of a Book-Entry Evidence not held through The Depository Trust Company (and to deliver to The Depository Trust Company, in the case of holders of Book-Entry Evidence held through The Depository Trust Company) that immediately prior to the Effective Time represented outstanding shares of Company Common Stock (A) a letter of transmittal, which shall be in the form and have such other provisions as the Acquiring Parties and the Company may reasonably specify, and (B) instructions for returning such letter of transmittal in exchange for the right to receive the Merger Consideration into which the number of shares of Company Common Stock previously represented by such Book-Entry Evidence shall have been converted pursuant to this Agreement (which instructions shall be in the form and have such other provisions as the Acquiring Parties and the Company may reasonably specify). Notwithstanding anything to the contrary contained in this Agreement, no holder of Book-Entry Evidence shall be required to deliver a Certificate or, in the case of holders of Book-Entry Evidence held through The Depository Trust Company, an executed letter of transmittal to the Paying Agent to receive the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(b).

(c)

Timing of Exchange. Upon surrender of a Certificate (or affidavit of loss in lieu thereof) or Book-Entry Evidence for cancellation to the Paying Agent, together with, in the case of Certificates and Book-Entry Evidence not held through The Depository Trust Company, a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, or, in the case of Book-Entry Evidence held through The Depository Trust Company, receipt of an “agent’s message” by the Paying Agent, and such other documents as may be required pursuant to such instructions, the holder of such Certificate or Book-Entry Evidence shall be entitled to receive in exchange therefor the Merger Consideration for each share of Company Common Stock formerly represented by such Certificate or Book-Entry Evidence upon the later to occur of (i) the Effective Time or (ii) the Paying Agent’s receipt of such Certificate (or affidavit of loss in lieu thereof), Book-Entry Evidence or “agent’s message,” and the Certificate (or affidavit of loss in lieu thereof) or Book-Entry Evidence so surrendered shall be forthwith cancelled. The Paying Agent Agreement shall provide that the Paying Agent shall accept such Certificates (or affidavits of loss in lieu thereof) or Book-Entry Evidence upon compliance with such reasonable terms and conditions as the Paying Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. No interest shall be paid or accrued for the benefit of holders of the Certificates or Book-Entry Evidence on the Merger Consideration payable upon the surrender of the Certificates or Book-Entry Evidence.

(d)

Termination of Exchange Fund. Any portion of the Exchange Fund which remains undistributed to the holders of the Certificates or Book-Entry Evidence for one (1) year after the Effective Time shall be delivered to the Surviving Corporation, upon written demand, and any such holders prior to the Merger who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation as a general creditor thereof for payment of their claims for Merger Consideration (without any interest thereon) in respect thereof, subject to abandoned property, escheat or similar Law.

(e)

No Liability. None of the Acquiring Parties, Merger Sub, the Company, the Surviving Corporation or the Paying Agent shall be liable to any Person in respect of any cash held in the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate or Book-Entry Evidence shall not have been surrendered immediately prior to the date on which any cash in respect of such Certificate or Book-Entry Evidence would otherwise escheat to or become the property of any Governmental Authority, any such cash in respect of such Certificate or Book-Entry Evidence shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.

(f)

Investment of Exchange Fund. The Paying Agent Agreement shall provide that the Paying Agent shall invest any cash included in the Exchange Fund as directed by the Acquiring Parties or, after the Effective Time, the Surviving Corporation; provided that (i) no such investment (including any losses thereon) shall relieve the Acquiring Parties or the Paying Agent from making, or causing to be made, the payments required by this Article III, and following any losses (or any diminishment of the Exchange Fund for any other reason below the level required to make prompt cash payment in full of the aggregate funds required to be paid pursuant to the terms hereof) SSW shall, and QUALCOMM shall cause SSW to, promptly provide additional funds to the Paying Agent for the benefit of the holders of Company Common Stock in the amount of such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) all such investments shall be in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America. Any interest or income produced by such investments will be payable to the Surviving Corporation or the Acquiring Parties, as directed by the Acquiring Parties.

(g)

Withholding. The Acquiring Parties, the Surviving Corporation or the Paying Agent, as applicable, shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement such amounts as they are required to deduct and withhold with respect to the making of such payment under applicable Law. The Acquiring Parties shall use reasonable best efforts to notify or cause to be notified, at least ten (10) Business Days prior to making any such deduction or withholding, the Person in respect of whom such deduction or withholding is expected to be made of such deduction or withholding (except no such notification shall be required if such Person is receiving such consideration as compensation for services for purposes of applicable Tax Law), which notice shall be in writing and include the amount of and basis for such deduction or withholding. The Acquiring Parties or the Surviving Corporation, as applicable, shall cooperate with such Person to reduce or eliminate any such requirement to deduct or withhold to the extent permitted by Law. To the extent that amounts are so withheld or paid over to or deposited with the relevant Governmental Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

Section 3.3

Company Equity Awards.

(a)

Company Options. At the Effective Time, each Company Option (whether or not vested) that is outstanding immediately prior to the Effective Time shall, automatically and without any required action on the part of the Company or the holder thereof, vest (if unvested) and be cancelled and converted into the right to receive an amount in cash, without interest, and subject to any withholding of Taxes required by applicable Law, equal to the product of (i) the excess, if any, of (A) the Merger Consideration over (B) the per-share exercise price for such Company Option multiplied by (ii) the total number of shares of Company Common Stock underlying such Company Option (the “Company Option Consideration”); provided that if the exercise price per share of Company Common Stock of such Company Option is equal to or greater than the Merger Consideration, such Company Option shall be cancelled without any cash payment or other consideration being made in respect thereof.

(b)

Treatment of Company RSUs. At the Effective Time, each Company RSU that is outstanding immediately prior to the Effective Time shall, automatically and without any required action on the part of the holder thereof, vest (if unvested) and be cancelled and converted into the right to receive an amount in cash, without interest and subject to any withholding of Taxes required by applicable Law, equal to the product of (i) the total number of shares of Company Common Stock underlying such Company RSU (including any shares of Company Common Stock in respect of dividend equivalent units credited thereon) multiplied by (ii) the Merger Consideration (the “Company RSU Consideration”).

(c)

Treatment of Company PSUs. At the Effective Time, each Company PSU that is outstanding immediately prior to the Effective Time shall, automatically and without any required action on the part of the holder thereof, vest (if unvested) and be cancelled and converted into the right to receive an amount in cash, without interest and subject to any withholding of Taxes required by applicable Law, equal to the product of (i) the number of shares of Company Common Stock underlying such Company PSU (including any shares of Company Common Stock in respect of dividend equivalent units credited thereon) determined based on the attainment of the applicable performance metrics at (x) the actual level of performance for any performance periods that have concluded prior to the date hereof, and (y) the greater of the target level of performance or actual level of performance measured through the Closing Date (as determined by the Board of Directors of the Company), for any performance periods that would otherwise conclude following the date hereof, in each case, multiplied by (ii) the Merger Consideration (the “Company PSU Consideration”).

(d)

Delivery of Company Equity Award Consideration; Withholding; Section 409A. The Acquiring Parties shall cause the Surviving Corporation to pay through the payroll system of the Surviving Corporation (to the extent applicable) to each holder of a Company Equity Award the Company Option Consideration, Company RSU Consideration and Company PSU Consideration, as applicable, less any required withholding Taxes and without interest, within two (2) Business Days following the Effective Time, subject to any requirements under applicable Law. Notwithstanding anything herein to the contrary, (i) with respect to any Company Equity Award that constitutes nonqualified deferred compensation subject to Section 409A of the Code and that the Company determines prior to the Effective Time is not eligible to be terminated in accordance with Treasury Regulation Section 1.409A-3(j)(4)(ix)(B), such payment will be made at the earliest time permitted under the applicable Company Equity Plan that will not trigger a Tax or penalty under Section 409A of the Code and (ii) with respect to Company Equity Awards held by individuals subject to Taxes imposed by the Laws of a country other than the United States, the parties hereto shall cooperate in good faith prior to the Effective Time to minimize the Tax impact of the provisions set forth in this Section 3.3.

(e)

Corporate Actions. At or prior to the Effective Time, the Company, the Company Board or the Compensation Committee of the Company Board, as applicable, shall adopt any resolutions and take any actions which are necessary to effectuate the provisions of this Section 3.3.

Section 3.4

Lost Certificates. If any Certificate shall have been lost, stolen or destroyed, then upon the making of an affidavit, in form and substance reasonably acceptable to the Acquiring Parties and the Company, of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if reasonably required by the Surviving Corporation, the posting by such Person of a bond, in such reasonable and customary amount as the Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration to which the holder thereof is entitled pursuant to this Article III; provided, however, that the Paying Agent or the Acquiring Parties may, in its reasonable discretion and as a condition precedent to the payment of such Merger Consideration and any dividends or distributions that such holder is entitled to receive pursuant to this Article III, require the owner of such lost, stolen or destroyed Certificate to provide a bond in a customary amount.

Section 3.5

Dissenting Shares. Notwithstanding Section 3.1(b), shares of Company Common Stock issued and outstanding immediately prior to the Effective Time and held by a holder who is entitled to, and has properly exercised and perfected his, her or its demand for, appraisal rights under Section 262 of the DGCL (the “Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration, but the holders of such Dissenting Shares shall be entitled to receive such consideration as shall be determined pursuant to Section 262 of the DGCL; provided, however, that if any such holder shall have failed to perfect or shall have effectively withdrawn or lost his or her right to appraisal and payment under Section 262 of the DGCL (whether occurring before, at or after the Effective Time), such holder’s shares of Company Common Stock shall thereupon be deemed to have been converted as of the Effective Time into the right to receive the Merger Consideration, without any interest thereon, in accordance with Section 3.1(b) and such shares shall no longer be deemed to be Dissenting Shares. The Company shall give prompt written notice to the Acquiring Parties of any demands, withdrawals of demands and any other instruments, notices or demands received by the Company for the appraisal of any shares under Section 262 of the DGCL, and the Acquiring Parties shall have the right to participate in and direct and control, in consultation with the Company, all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of the Acquiring Parties, make any payment with respect to, or settle or compromise or offer to settle or compromise, any such demand, or agree to do any of the foregoing.

Section 3.6

Transfers; No Further Ownership Rights. From and after the Effective Time, there shall be no registration of transfers on the stock transfer books of the Company of shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If Certificates or Book-Entry Evidence are presented to the Surviving Corporation, SSW, QUALCOMM or Paying Agent for transfer following the Effective Time, they shall be cancelled against delivery of the applicable Merger Consideration as provided for in Section 3.1(b) for each share of Company Common Stock formerly represented by such Certificates or Book-Entry Evidence. In the event of a transfer of ownership of shares of Company Common Stock that is not registered in the transfer records of the Company, payment may be made to a Person other than the Person in whose name the Certificate so surrendered is registered, if such Certificate shall be properly endorsed or otherwise be in proper form for transfer and the Person requesting such payment shall pay any transfer or other Taxes required by reason of the payment to a Person other than the registered holder of such Certificate or establish to the satisfaction of the Acquiring Parties that such Tax has been paid or is not applicable. Payment of the Merger Consideration in accordance with the terms of this Article III, and, if applicable, any unclaimed dividends upon the surrender of Certificates, shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificates or Book-Entry Evidence.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except as disclosed in the Company Disclosure Letter (subject to Section 9.3(b)) or in the publicly available Company SEC Documents filed with or furnished to the SEC by the Company on or after the Spin Date and prior to the date of this Agreement (other than any disclosures set forth under the headings “Risk Factors” or “Forward-Looking Statements,” any disclosure in any section relating to forward-looking statements and any other statements that are predictive or forward-looking in nature other than historical facts included therein); provided that in no event shall any disclosure in any Company SEC Document qualify or limit the representations and warranties of the Company set forth in Section 4.1 (Organization and Qualification; Subsidiaries), Section 4.2(a) (Capitalization), Section 4.3 (Authority Relative to Agreement), Section 4.22 (Brokers) or Section 4.23 (Opinion of Financial Advisor) the Company hereby represents and warrants to the Acquiring Parties as of the date hereof as follows:

Section 4.1

Organization and Qualification; Subsidiaries. Each of the Company and its Subsidiaries is a corporation, partnership or other entity duly organized, validly existing and (to the extent applicable) in good standing under the laws of the jurisdiction of its incorporation or organization and has the requisite entity power and authority to own, lease and operate its properties and assets and to conduct its business as it is now being conducted, except where the failure to be in good standing or to have such power and authority as would not have a Company Material Adverse Effect. Each of the Company and its Subsidiaries is duly qualified or licensed to do business and (to the extent applicable) is in good standing in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed and (to the extent applicable) in good standing would not have a Company Material Adverse Effect. True, complete and correct copies of the Company’s amended and restated certificate of incorporation (the “Company Charter”) and amended and restated bylaws (the “Company Bylaws”), as currently in effect, are included in the Company SEC Documents. The Company is not in violation, in any material respect, of the Company Charter and Company Bylaws and no “significant subsidiary”, as such term is defined in Regulation S-X promulgated by the SEC, is in violation, in any material respect, of any of its articles of association, certificate of incorporation, bylaws, limited partnership agreement, limited liability company agreement or comparable constituent or organizational documents.

Section 4.2

Capitalization.

(a)

As of September 30, 2021 (the “Measurement Date”), the authorized capital stock of the Company consists of (i) 325,000,000 shares of Company Common Stock, 111,978,226 of which were issued and outstanding, (ii) 25,000 shares of preferred stock, par value $1.00 per share (none of which were issued and outstanding), (iii) Company Options to purchase an aggregate of 180,475 shares of Company Common Stock and (iv) 1,088,707.5 shares of Company Common Stock subject to outstanding Company Stock Units (with the Company PSUs measured at the target level of performance for any non-completed periods). From the Measurement Date through the date of this Agreement, the Company has not issued or granted any Company Securities other than pursuant to the exercise or vesting of Company Equity Awards outstanding as of the Measurement Date. Other than the Company Securities, no Company Capital Stock is outstanding. As of the date hereof, no shares of Company Common Stock are held by the Company in its treasury or by any Subsidiary of the Company. All outstanding shares of Company Common Stock and capital stock or equivalent equity interests of each Subsidiary of the Company are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights. As of the date hereof, other than as set forth above in this Section 4.2(a) or in Section 4.2(d) of the Company Disclosure Letter, there are no existing and outstanding (A) shares of capital stock or equity interests of the Company or securities of the Company or its Subsidiaries convertible into or exchangeable for shares of capital stock or other equity or voting interests of the Company, (B) options, warrants, calls, restricted shares, phantom stock, stock appreciation rights, performance units, contingent value rights, subscriptions or other rights, convertible securities (other than the Convertible Notes), agreements or commitments (including any bonds, debentures, notes or other indebtedness having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of the Company or its Subsidiaries may vote) of any character to which the Company or any of its Subsidiaries is a party obligating the Company or any of its Subsidiaries to issue, transfer or sell any shares of capital stock or other equity interests in the Company or any of its Subsidiaries or securities convertible into or exchangeable for such shares or equity interests, (collectively and together with the shares, interests or securities referred to in clause (A), “Company Capital Stock”), (C) contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any capital stock or other equity interests of the Company, (D) voting trusts or similar agreements to which the Company is a party with respect to the voting or registration of the capital stock or other equity interests of the Company or any of its Subsidiaries, (E) other than as provided in Section 7 of the Specified Agreement, contractual obligations or agreements restricting the transfer of, requiring the registration for sale of, or granting any preemptive rights, subscription rights, anti-dilutive rights, rights of first refusal or any similar rights with respect to any Company Securities or capital stock of (or other equity or voting interest in) any Subsidiary of the Company, or (F) phantom stock, restricted stock units, equity or equity-based awards or other contractual rights the value of which is determined in whole or in part by reference to the value of any capital stock of the Company or outstanding stock appreciation rights issued by the Company with respect to the capital stock of the Company. Except as permitted after the date hereof pursuant to the terms of this Agreement, there are no individuals with an offer letter, other employment Contract or other arrangement or Contract that contemplates a grant of awards that would be Company Options, Company RSUs, Company PSUs (if outstanding on the date hereof) or other equity or equity-based awards, or who has been promised any such awards, which awards have not been granted as of the date hereof. The Company has not issued any Company Securities or incurred any obligation to make any payments to any Person based on the price or value of any Company Securities, other than in connection with any Company Equity Awards outstanding as of the Measurement Date in accordance with their terms. No dividends or similar distributions have accrued or been declared but are unpaid on any Company Securities, and the Company is not subject to any obligation (contingent or otherwise) to pay any dividend or otherwise to make any distribution or payment to any current or former holder of any Company Securities (in each case, other than with respect to dividends to be paid by any wholly owned Subsidiary of the Company to the Company or any wholly owned Subsidiary of the Company).

(b)

All of the outstanding shares of capital stock or equivalent equity interests of each of the Company’s Subsidiaries are owned of record and beneficially, directly or indirectly, by the Company or the relevant wholly owned Subsidiary and free and clear of all Liens except for restrictions imposed by applicable securities Laws and Permitted Liens.

(c)

Neither the Company nor any of its Subsidiaries owns, directly or indirectly, any interest or investment (whether equity or debt, including any security or other rights, agreement or commitment convertible or exercisable into, or exchangeable for, any equity interests) in any Person, other than a Subsidiary of the Company.

(d)

Section 4.2(d) of the Company Disclosure Letter sets forth a complete and accurate list of each outstanding Company Equity Award granted under any of the Company Equity Plans and: (i) the employee identification number of the holder of such Company Equity Award, (ii) the type of Company Equity Award (i.e., whether a Company Option, Company RSU or Company PSU), (iii) with respect to any Company Option, whether the Company Option is intended to qualify as an “incentive stock option” under Section 422 of the Code, (iv) the name of the Company Equity Plan under which the Company Equity Award was issued, (v) the number of shares of Company Common Stock subject to such outstanding Company Equity Award (including, for Company PSUs, both the target and maximum number of shares of the Company issuable under such Company PSU), (vi) if applicable, the exercise price, strike price or similar pricing of such Company Equity Award, (vii) the date on which such Company Equity Award was granted or issued, (viii) the applicable vesting, repurchase or other lapse of restrictions schedule, (ix) the number of shares of Company Common Stock which are vested and unvested with respect to the Company Equity Award, and (x) the expiration date of the term of such Company Equity Award (if applicable).

(e)

As of September 23, 2021, 11,828,560 shares of Company Common Stock are reserved for issuance in connection with the Convertible Notes and the Conversion Rate (as defined in the Convertible Notes Indenture) of the Convertible Notes is 44.8179 shares of Company Common Stock per $1,000 aggregate principal amount of Convertible Notes (taking into account any adjustments deferred and not yet made pursuant to Section 14.04(l) of the Convertible Notes Indenture).

Section 4.3

Authority Relative to Agreement.

(a)

The Company has all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, including the Merger, subject to the adoption of this Agreement by the holders of a majority of the outstanding shares of Company Common Stock that are entitled to vote thereon at the Company Stockholders Meeting, whether in person or by proxy (the “Company Stockholder Approval”). The execution, delivery and performance of this Agreement by the Company, and the consummation by the Company of the transactions contemplated by this Agreement, have been duly and validly authorized by all necessary corporate action by the Company, except for the Company Stockholder Approval, and no other corporate Action on the part of the Company is necessary to authorize the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery of this Agreement by the other parties hereto, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights and remedies generally and (ii) the remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The Company Stockholder Approval is the only vote of the holders of any securities (including SDRs) of the Company that is required in connection with the Merger and the other transactions contemplated hereby.

(b)

The Company Board has unanimously (i) approved this Agreement, the Merger and the other transactions contemplated hereby, (ii) determined that the Merger and the other transactions contemplated hereby, taken together, are advisable and in the best interests of the Company and its stockholders, (iii) resolved to make the Company Recommendation (provided that any change, modification or rescission of such recommendation by the board of directors of the Company in accordance with Section 6.5 shall not be a breach of the representation in clause (iii)), (iv) such resolutions are sufficient to render the provisions of Section 203 of the DGCL inapplicable to the Acquiring Parties and Merger Sub and to this Agreement, the Merger and the other transactions contemplated hereby and thereby and (v) approved the termination of the Magna Agreement. No other “business combination”, “control share acquisition”, “fair price”, “moratorium” or other anti-takeover Laws apply to this Agreement, the Merger or any other transaction contemplated hereby.

Section 4.4

No Conflict; Required Filings and Consents.

(a)

Neither the execution and delivery of this Agreement by the Company nor the consummation by the Company of the transactions contemplated hereby will (i) violate any provision of the Company Charter or Company Bylaws, (ii) assuming that the Consents, registrations, declarations, filings and notices referred to in Section 4.4(b) have been obtained or made, any applicable waiting periods referred to therein have expired and any condition precedent to any such Consent has been satisfied, conflict with or violate any Law applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected, (iii) result in any breach of, or constitute a default (with or without notice or lapse of time, or both) under, or give rise to any right of termination, acceleration, loss of rights or cancellation of, any (A) Real Property Lease or (B) Company Material Contract or (iv) result in the creation or imposition of any Lien (other than any Permitted Lien) upon any of the properties or assets of the Company or any of its Subsidiaries, other than, in the case of clauses (ii), (iii) and (iv) any such conflict, violation, breach, default, termination, acceleration or cancellation that would not have a Company Material Adverse Effect.

(b)

No consent, approval, license, permit, Order or authorization (a “Consent”) of, or registration, declaration or filing with, or notice to, any Governmental Authority is required to be obtained or made by or with respect to the Company or any of its Subsidiaries in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby, other than (i) the filing with the SEC of the Proxy Statement in preliminary and definitive forms and the applicable requirements of and filings with the SEC under the Exchange Act, (ii) the filing of the Certificate of Merger with the Secretary and appropriate documents with the relevant authorities of the other jurisdictions in which the Company or any of its Subsidiaries is qualified to do business, (iii) applicable requirements under corporation or Blue Sky Laws of various states, (iv) such filings as may be required in connection with the Taxes described in Section 8.6, (v) filings with The New York Stock Exchange (the “NYSE”) or Nasdaq Stockholm, (vi) such other items required solely by reason of the identity of the Acquiring Parties or Merger Sub and their participation in the transactions contemplated hereby, (vii) compliance with and filings or notifications under the HSR Act or other Antitrust Laws and Investment Screening Laws and (viii) such other Consents, registrations, declarations, filings or notices the failure of which to be obtained or made would not have a Company Material Adverse Effect.

Section 4.5

Permits; Compliance With Laws.

(a)

The Company and its Subsidiaries are in possession of all franchises, grants, easements, variances, exceptions, Consents and certificates necessary for the Company and its Subsidiaries to own, lease and operate their properties and assets and to carry on their business as it is now being conducted (the “Company Permits”), and all Company Permits are in full force and effect and no suspension or cancellation of any of the Company Permits is pending or, to the Knowledge of the Company, threatened, except where the failure to be in possession of or be in full force and effect, or the suspension or cancellation of, any of the Company Permits would not have a Company Material Adverse Effect.

(b)

None of the Company or any of its Subsidiaries is in default or violation of any Law applicable to the Company or any of its Subsidiaries, except for any such defaults or violations that would not have a Company Material Adverse Effect.

Section 4.6

Company SEC Documents; Financial Statements.

(a)

Since January 1, 2019, the Company has filed or furnished with the SEC all material forms, documents and reports required to be filed or furnished prior to the date hereof by it with the SEC (the “Company SEC Documents”). As of their respective dates, or, if amended, as of the date of the last such amendment, the Company SEC Documents complied in all material respects with the requirements of the Securities Act and the Exchange Act and the Sarbanes-Oxley Act of 2002, as the case may be, and the applicable rules and regulations promulgated thereunder, and none of the Company SEC Documents at the time it was filed (or, if amended, as of the date of the last amendment) contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, or are to be made, not misleading.

(b)

As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received by the Company or any of its Subsidiaries from the SEC or its staff that would be required to be disclosed under Item 1B of Form 10-K under the Exchange Act. To the Knowledge of the Company, as of the date hereof, none of the Company SEC Documents is the subject of ongoing SEC review or investigation. There has been no material correspondence between the SEC, on the one hand, and the Company and any of its Subsidiaries, on the other hand, occurring since December 31, 2020 on or prior to the date hereof that is not available to the public on the SEC’s Electronic Data Gathering and Retrieval database.

(c)

The consolidated financial statements (including all related notes) of the Company included in the Company SEC Documents (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the respective dates thereof and its consolidated statements of operations and consolidated statements of cash flows for the respective periods then ended (subject, in the case of unaudited interim statements, to normal year-end audit adjustments, and any other adjustments described therein, including in any notes thereto, in each case, which would not, individually or in the aggregate, be material to the Company and its Subsidiaries, taken as a whole) were prepared in conformity with GAAP (except, in the case of unaudited statements, as permitted by Form 10-Q or any successor form or other rules under the Exchange Act) applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto), (ii) are in accordance, in all material respects, with the books and records of the Company and its consolidated Subsidiaries, and (iii) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act, the Securities Act and the DGCL.

Section 4.7

Information Supplied. The Proxy Statement will not when filed with the SEC, when distributed or disseminated to holders of shares of Company Common Stock and at the time of the Company Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with regards to statements made therein based on information supplied by or on behalf of the Acquiring Parties or Merger Sub (or any of their Affiliates) for inclusion therein.

Section 4.8

Disclosure Controls and Procedures. The Company has established and maintains “disclosure controls and procedures” and “internal control over financial reporting” (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 promulgated under the Exchange Act) as required by Rule 13a-15 promulgated under the Exchange Act. To the Knowledge of the Company, the Company has disclosed, based on its most recent evaluation of the Company’s internal control over financial reporting prior to the date hereof, to the Company’s auditors and the audit committee of the Company Board (a) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting.

Section 4.9

Absence of Certain Changes or Events. From January 1, 2021, to the date of this Agreement, except with respect to the negotiation, execution and delivery of (a) this Agreement and (b) the Magna Agreement (including the termination thereof), (i) the businesses of the Company and its Subsidiaries have been conducted in all material respects in the ordinary course of business consistent with past practice (other than with respect to COVID Measures), (ii) there has not been any adverse change, event, effect or circumstance that has had a Company Material Adverse Effect and (iii) the Company has not taken any action that would be prohibited by Section 6.1(o), if taken after the date hereof.

Section 4.10

No Undisclosed Liabilities. Except (a) as reflected, disclosed or reserved against in the Company’s consolidated balance sheet of the Company and its Subsidiaries as of June 30, 2021, and the notes thereto, as set forth in the Company’s report on Form 10-Q for the three months ended June 30, 2021, (b) for liabilities or obligations incurred in the ordinary course of business since June 30, 2021, consistent with past practice, (c) for liabilities or obligations incurred in connection with this Agreement, and the transactions contemplated hereby (d) for liabilities or obligations that would not have a Company Material Adverse Effect or (e) as set forth in Section 4.10 of the Company Disclosure Letter, as of the date hereof, the Company and its Subsidiaries do not have any liabilities or obligations of any nature, whether or not accrued, contingent, absolute, determined, determinable or otherwise. Neither the Company nor any of its Subsidiaries is a party to, or has any commitment to become a party to, any material “off balance sheet arrangement” within the meaning of Item 303 of Regulation S-K promulgated under the Securities Act.

Section 4.11

Litigation. Except as set forth in Section 4.11 of the Company Disclosure Letter, as of the date hereof, there is no Action pending or, to the Knowledge of the Company, threatened by or against the Company or any of its Subsidiaries or any of their assets or properties, or to the Knowledge of the Company, any present or former officer or director the Company or any of its Subsidiaries (in such individual’s capacity as such), that would have a Company Material Adverse Effect, nor is there any Order of any Governmental Authority outstanding against, or, to the Knowledge of the Company, investigation or review pending or threatened in writing by any Governmental Authority involving, the Company or any of its Subsidiaries, that would have a Company Material Adverse Effect. As of the date hereof, there is no Action pending or, to the Knowledge of the Company, threatened in writing seeking to prevent, enjoin, modify, materially delay or challenge the Merger or any of the other transactions contemplated by this Agreement or the ability of the Company to fully perform its covenants and obligations pursuant to this Agreement.

Section 4.12

Employee Benefit Plans.

(a)

Section 4.12(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of each material Company Benefit Plan. The Company has made available to the Acquiring Parties a true and complete copy of each material Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a true and correct description of the material terms thereof) and all amendments thereto and a true and complete copy of the following items (in each case, only if applicable): (i) each trust agreement, insurance contract, policy documents or other funding arrangement related thereto, (ii) the most recent summary plan description and summary of material modifications, (iii) the three most recently filed annual reports on IRS Form 5500 with all corresponding schedules and financial statements attached thereto (including any related actuarial valuation report), (iv) the most recently received IRS determination letter or IRS advisory or opinion letter issued with respect to any Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code; and (v) any material notices, letters or other correspondence with the IRS, the Department of Labor, the Pension Benefit Guaranty Corporation or any other Governmental Authority.

(b)

(i) Except as would not have a Company Material Adverse Effect, (i) each of the Company Benefit Plans has been maintained, operated, administered and funded in accordance with its terms and in compliance with applicable Laws, (ii) no Action (other than routine claims for benefits), including any audit, is pending against or involves or, to the Knowledge of the Company, is threatened against or reasonably expected to involve, any Company Benefit Plan, (iii) payments required to be paid by the Company or any of its Subsidiaries pursuant to the terms of a Company Benefit Plan or by applicable Law (including all contributions and insurance premiums) with respect to all prior periods have been timely made or provided for by the Company or its Subsidiaries in accordance with the provisions of such Company Benefit Plan or applicable Law, (iv) no non-exempt “prohibited transaction,” within the meaning of Section 4975 of the Code and Section 406 of ERISA, has occurred or is reasonably expected to occur with respect to the Company Benefit Plans and (v) no event has occurred and no condition exists that would subject the Company or any of its Subsidiaries, either directly or by reason of their affiliation with any ERISA Affiliate, to any Tax, fine, penalty or other liability imposed by ERISA, the Code or other applicable Laws with respect to any Company Benefit Plan.

(c)

(i) Each Company Benefit Plan intended to be qualified under Section 401(a) of the Code is so qualified and has either received a currently-effective favorable determination letter from the IRS with respect to each such Company Benefit Plan as to its qualified status under the Code, or with respect to a prototype Company Benefit Plan, the prototype sponsor has received a favorable IRS advisory or opinion letter, and (ii) to the Knowledge of the Company, no event has occurred since the most recent determination or opinion or advisory letter or application therefor relating to any such Company Benefit Plan that would reasonably be expected to adversely affect the qualification of such Company Benefit Plan or the tax-exempt status of any related trust.

(d)

None of the Company, its Subsidiaries, or any of their respective ERISA Affiliates (nor any predecessor of any such entity) currently sponsors, maintains, administers or contributes to, has any obligation to contribute to or has any actual or potential liability in respect of, or has ever sponsored, maintained, administered or contributed to (or had any obligation to contribute to), (i) a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code; (ii) a “multiemployer plan” (within the meaning of Section 3(37) of ERISA); (iii) a “multiple employer plan” (within the meaning of Section 210 of ERISA or Section 413(c) of the Code); or (iv) a “multiple employer welfare arrangement” (as such term is defined in Section 3(40) of ERISA).

(e)

Except as would not be material to the Company and its Subsidiaries, taken as a whole, each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined under Section 409A of the Code) has been operated in compliance with Section 409A of the Code and has complied with applicable documentary requirements of Section 409A of the Code.

(f)

Neither the execution or delivery of this Agreement nor the consummation of the Merger, either alone or in conjunction with any other event, will (i) except as expressly provided in this Agreement, entitle any current or former director, employee, consultant or independent contractor of the Company or any of its Subsidiaries to any payment or benefit, (ii) increase the amount or value of any benefit or compensation or other obligation payable or required to be provided to any such director, employee, consultant or independent contractor, or any Company Benefit Plan, (iii) except as expressly provided in this Agreement, accelerate the time of payment or vesting of amounts due any such director, employee, consultant or independent contractor or accelerate the time of any funding (whether to a trust or otherwise) of compensation or benefits in respect of any of the Company Benefit Plans, or (iv) result in any payment under any Company Benefit Plan or any other arrangement that would not be deductible under Section 280G of the Code.

(g)

Except as would not have a Company Material Adverse Effect, none of the Company Benefit Plans provides, and none of the Company or its Subsidiaries has any material obligations to provide post-termination or retiree health or life insurance benefits or other post-termination or retiree welfare benefits or coverage to any individual (other than for continuation coverage required to be provided pursuant to Section 4980B of the Code).

(h)

Except as would not have a Company Material Adverse Effect, each Company Benefit Plan that is required to be registered under the Laws of a jurisdiction outside the United States (i) has been registered and has been maintained in good standing with the appropriate regulatory authorities, (ii) if intended to qualify for special tax treatment, meets all the requirements for such treatment, and (iii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or so secured, based on reasonable actuarial assumptions in accordance with applicable accounting principles.

Section 4.13

Labor Matters.

(a)

Section 4.13 of the Company Disclosure Letter sets forth a schedule of all non-U.S. collective bargaining agreements to which the Company is a party or bound by. Except as set forth in Section 4.13 of the Company Disclosure Letter (as and when provided), neither the Company nor any of its Subsidiaries is a party to or bound by any works council or collective bargaining agreement, other than industry-wide agreements outside of the United States. Except as would not have a Company Material Adverse Effect, there are no labor related strikes, walkouts or other work stoppages pending or, to the Knowledge of the Company, threatened in writing, and, since January 1, 2018, neither the Company nor any of its Subsidiaries has experienced any such labor related strike, walkout or other work stoppage. To the Knowledge of the Company, there is no pending organizing campaign and no labor union or works council has made a pending written demand for recognition or certification, in each case, with respect to any employees of the Company or any of its Subsidiaries.

(b)

The Company and its Subsidiaries affirm that they have no outstanding WARN liability.

(c)

All employees of the Company and its Subsidiaries are legally authorized to work in the location where assigned, and the Company and its Subsidiaries maintain accurate records concerning all I-9 filings for employees working in the United States.

Section 4.14

Intellectual Property Rights.

(a)

Except as would not have a Company Material Adverse Effect, (i) the Company and its Subsidiaries own, or have the right to use in the manner currently used, all Company Intellectual Property Rights and (ii) neither the Company nor any of its Subsidiaries has received, in the twelve (12) months preceding the date hereof, any written charge, complaint, claim, demand or notice challenging the validity of any Intellectual Property Rights owned (or purported to be owned), in whole or in part, by the Company or any of its Subsidiaries (the “Company Owned IP”).

(b)

To the Knowledge of the Company, the conduct of the business of the Company and its Subsidiaries as currently conducted does not infringe upon, misappropriate or otherwise violate, and has not in the two (2) years prior to the date hereof infringed upon, misappropriated or otherwise violated, any Intellectual Property Rights of any other Person, except for any such infringement, misappropriation or other violation that would not have a Company Material Adverse Effect. None of the Company or any of its Subsidiaries has received, in the twelve (12) months preceding the date hereof, any written charge, complaint, claim, demand or notice alleging any such infringement, misappropriation or other violation by the Company or any of its Subsidiaries that has not been settled or otherwise fully resolved, except for any such infringement, misappropriation or other violation that would not materially adversely affect the business of the Company and its Subsidiaries. To the Knowledge of the Company, as of the date hereof, no other Person is infringing upon, misappropriating or otherwise violating, and has not in the past two (2) years infringed upon, misappropriated or otherwise violated, any Company Owned IP, except for any such infringement, misappropriation or other violation as would not have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries has brought in the twelve (12) months preceding the date hereof or is currently a party to any Action alleging a material infringement of Company Owned IP.

(c)

As of the date of this Agreement, there is no Action currently pending against the Company or any of its Subsidiaries challenging the ownership, scope, validity or enforceability of any Company Registered IP (other than non-final office actions and similar correspondence involving the United States Patent and Trademark Office or any equivalent foreign Governmental Authority or any other Company Owned IP) except as would not have a Company Material Adverse Effect. With respect to the Company Registered IP, except as would not have a Company Material Adverse Effect, to the Knowledge of the Company, (i) the Company and its Subsidiaries have complied with procedural obligations, including the duty of candor, in connection with its prosecution and maintenance of the Company Registered IP, (ii) all active Patent applications are in good standing and (iii) to the Knowledge of the Company, the issued and unexpired Patents are valid and enforceable.

(d)

Except as would not have a Company Material Adverse Effect, the Company or its Subsidiaries, as applicable, own all right, title and interest in the Company Owned IP, including the Company Registered IP, free and clear of all Liens (other than Permitted Liens) and without any joint or co-ownership rights of any third Person. Except as would not have a Company Material Adverse Effect or as set forth in a Company Material Contract, neither the Company nor any of its Subsidiaries owes any ongoing or contingent compensation or remuneration (other than wages, salary and benefits payable to employees, and hourly fees, time and materials fees, support fees, milestone payments and other charges for services performed or to be performed, set fees or other non-continuing fees for services payable to contractors or consultants, for work performed) to a current or former Company Service Provider or other consultant or contractor for the use or other exploitation of any Company Owned IP that such Company Service Provider or other consultant or contractor was involved in developing.

(e)

As of the date of this Agreement, there are no orders, judgments, holdings, consents, decrees, settlements or rulings with respect to Intellectual Property Rights issued during the past three (3) years to which the Company or any of its Subsidiaries, or any of the Company Owned IP, is bound (excluding, for the avoidance of doubt, ordinary course determinations by the United States Patent and Trademark Office or any equivalent foreign Governmental Authority) which would have a Company Material Adverse Effect.

(f)

To the Knowledge of the Company, no software included in any Company Product that is Company Owned IP and no other material Company Owned IP incorporates any Public Software in a manner that requires that any Company Owned IP be licensed to any Person or that requires any source code that is Company Owned IP to be disclosed, licensed, publicly distributed, or dedicated to the public, except as is not material to the Company and its Subsidiaries, taken as a whole.

(g)

The Company and its Subsidiaries take and, in the past two (2) years, have taken, commercially reasonable measures to protect the confidentiality of its Trade Secrets, except as would not have a Company Material Adverse Effect. To the Knowledge of the Company, (i) neither the Company nor any of its Subsidiaries has disclosed, delivered or licensed to any third Person, agreed to disclose, deliver or license to any third Person, or permitted the disclosure or delivery to any escrow agent or other third Person of, any material Source Code or Trade Secrets that is or are Company Owned IP, except for disclosures to employees, under Contracts that reasonably restrict the use and disclosure of such Source Code and Trade Secrets or where disclosure is the result of an affirmative business decision, such as to license software as Public Software, or to release specifications or documentation for Company Products or a software development kit and (ii) no event has occurred, and no circumstance or condition exists that (with or without notice or lapse of time) will result in the disclosure or delivery to any Person of any such material Company-owned Source Code or Trade Secrets, in each case (i) and (ii) except as would not be material to the business of the Company and its Subsidiaries.

(h)

As of the date hereof, neither the Company nor any of its Subsidiaries have made any material commitments or material agreements with any patent pool, industry standards body or standard setting organization, in each case that requires or obligates the Company or any of its Subsidiaries to grant or offer to other Persons that request it a license to any Patent included in the Company Owned IP, except as would not have a Company Material Adverse Effect.

(i)

Except as would not have a Company Material Adverse Effect, the Company and each of its Subsidiaries maintain the IT Assets, including any software and databases therein, to the extent within their control, employing commercially reasonable practices. To the Knowledge of the Company, in the past two (2) years, there has been no defect, failure, breakdown, loss or impairment with respect to any of the Company Products that has resulted in a disruption or interruption with respect to any Company Products that has not been resolved or that is material to business of the Company and its Subsidiaries, except as would not be material to the business of the Company and its Subsidiaries. To the Knowledge of the Company, no Company Products or Company Technology, to the extent of Company Owned IP therein or to the extent within the control of the Company or its Subsidiaries, contains any Malicious Code, except as would not have a Company Material Adverse Effect.

(j)

To the Knowledge of the Company, no funding, facilities or resources of any Governmental Authority or any granting agency, university, college or other academic institution were used in the creation, development or reduction to practice of any Company Products or Company Owned IP by the Company or any of its Subsidiaries except as would not have a Company Material Adverse Effect.

(k)

(i) The Company, its Subsidiaries and, with respect to the Processing of Company Data on behalf of the Company and its Subsidiaries, to the Knowledge of the Company as of the date hereof, their Data Processors, are in compliance and have complied during the past two (2) years with the Company Privacy Policies and the Privacy Requirements and (ii) any such Data Processor has provided guarantees, warranties or covenants in relation to Processing of Personal Data, confidentiality, and security measures, and have agreed to comply with those obligations in a manner sufficient for the Company and its Subsidiaries’ compliance with Privacy Requirements, except, in each case, as would not have a Company Material Adverse Effect.

(l)

In the twelve (12) months prior to the date hereof, except as has not had a Company Material Adverse Effect, (i) neither the Company, its Subsidiaries and, to the Knowledge of the Company, their Data Processors, have experienced any Security Incident, have not been required to notify any Person or Governmental Authority of any Security Incident, and have not been adversely affected by any Malicious Code, ransomware or malware attacks, or denial-of-service attacks on any IT Systems; (ii) neither the Company, its Subsidiaries nor any third party acting at the direction or authorization of the Company or its Subsidiaries have paid any perpetrator of any actual or threatened Security Incident or cyber-attack against the Company or any of its Subsidiaries, including, but not limited to a ransomware attack or a denial-of-service attack; and (iii) the Company and its Subsidiaries have not received a written notice (including any enforcement notice), letter or complaint from a Governmental Authority alleging noncompliance or potential noncompliance with any Privacy Requirements or Company Privacy Policies and have not been subject to any proceeding relating to noncompliance or potential noncompliance with Privacy Requirements or the Company or its Subsidiaries’ Processing of Personal Data.

(m)

Except as would not have a Company Material Adverse Effect, (i) the Company and its Subsidiaries have established an Information Security Program that is reasonably implemented and maintained, and, in the twelve (12) months prior to the date hereof, there have been no violations of the Information Security Program; (ii) the Company and its Subsidiaries have assessed and tested the Information Security Program on a no less than annual basis during the twelve (12) months prior to the date hereof; remediated all identified critical and high risks and vulnerabilities under such program; and the Information Security Program is compliant with Privacy Requirements; and (iii) the IT Systems currently used by the Company and its Subsidiaries are in good working condition, do not contain any Malicious Code or defect and operate and perform in a reasonably adequate manner to conduct the business of the Company and its Subsidiaries.

Section 4.15

Taxes.

(a)

Except as would not have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries have timely filed (taking into account any valid extension of time within which to file) all Tax Returns required to be filed by any of them; (ii) each of such filed Tax Returns (taking into account all amendments thereto) is complete and accurate; and (iii) all Taxes shown to be due on such Tax Returns have been timely paid in full, or withheld and remitted to the appropriate taxing authority, except for Taxes being contested in good faith and for which adequate reserves in accordance with GAAP have been provided on the Company’s consolidated financial statements.

(b)

Except as would not have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries has received written notice of, or has pending, in process, or otherwise outstanding, any audit, examination or other Action from any taxing authority in respect of liabilities for Taxes of the Company or any of its Subsidiaries: (ii) no deficiency with respect to any Taxes has been assessed or proposed in writing against the Company or any of its Subsidiaries that has not been fully paid, except with respect to Taxes being contested in good faith and for which adequate reserves in accordance with GAAP have been provided on the Company’s consolidated financial statements; and (iii) with respect to any tax years open for audit as of the date hereof, neither the Company nor any of its Subsidiaries has granted any waiver of any statute of limitations with respect to, or any extension of a period for the assessment or collection of, any Tax.

(c)

There are no Liens for Taxes on any of the assets of the Company or any of its Subsidiaries other than Permitted Liens.

(d)

Except as would not have a Company Material Adverse Effect, no claim has been made in writing by any taxing authority in a jurisdiction in which the Company or any of its Subsidiaries has not filed a particular type of Tax Return or paid a particular type of Tax to the effect that the Company or such Subsidiary is required to file such Tax Return or pay such type of Tax in such jurisdiction.

(e)

Neither the Company nor any of its Subsidiaries has engaged in any “listed transaction” as defined in Treasury Regulations Section 1.6011-4(b)(2) or Treasury Regulations Section 301.6111-2(b)(2).

(f)

Neither the Company nor any of its Subsidiaries has any material liability for the Taxes of any Person (other than the Company or any of its Subsidiaries) under Section 1.1502-6 of the Treasury Regulations (or any corresponding or similar provision of state, local, or non-U.S. Law), as a transferee or successor; or by contract (other than contracts entered into in the ordinary course of business the primary purpose of which is not Taxes).

(g)

Neither the Company nor any of its Subsidiaries will be required to include any material item of income in, or to exclude any material item of deductions from, taxable income from any Tax period (or portion thereof) ending after the Closing as a result of any (i) change in method of accounting for a Tax period (or portion thereof) ending prior to the Closing, (ii) closing agreement as described in Section 7121 of the Code executed prior to the Closing, (iii) change in method of accounting adopted prior to the Closing, (iv) open transaction disposition entered into prior to Closing outside the ordinary course of business, (v) prepaid amount received prior to Closing outside the ordinary course of business or (vi) application of Section 965 of the Code or any related provisions applicable to controlled foreign corporations under federal, state, local or non-U.S. Law. Neither the Company nor any of its Subsidiaries has made an election under Section 965(h) of the Code.

(h)

There are no requests for rulings or determinations in respect of any income or other material Tax pending between any of the Company or any of its Subsidiaries, on the one hand, and any taxing authority, on the other hand. None of the Company or any of its Subsidiaries has received or applied for a Tax ruling or entered into a closing agreement pursuant to Section 7121 of the Code (or any predecessor provision or any similar provision of state, local or non-U.S. Law), in either case that would be binding upon the Company or any of its Subsidiaries after the Closing Date.

(i)

The Company and its Subsidiaries have (i) to the extent applicable, properly complied with all requirements of applicable Tax Law in order to defer the amount of the employer’s share of any “applicable employment taxes” under Section 2302 of the CARES Act, (ii) not deferred any payroll tax obligations pursuant to the CARES Act, (iii) to the extent applicable, properly complied with all requirements of applicable Tax Law and duly accounted for any available Tax credits under Sections 7001 through 7005 of the Families First Act and Section 2301 of the CARES Act, and (iv) not sought (nor has any Affiliate that would be aggregated with the Company or any Subsidiary thereof and treated as one employer for purposes of Section 2301 of the CARES Act sought) a covered loan under paragraph (36) of Section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as added by Section 1102 of the CARES Act.

(j)

None of the Company nor any of its Subsidiaries has taken or failed to take any action that would reasonably be expected to adversely affect the tax-free status of the Internal Reorganization Transactions, the Contribution or the Distribution, each as defined in the Tax Matters Agreement dated as of June 28, 2018, by and between Autoliv, Inc. and the Company (the “Tax Matters Agreement”).

(k)

Neither the Company nor any of its Subsidiaries has (i) any material liability under Section 2.2(c) of the Tax Matters Agreement, (ii) taken any action described in Section 8.3 of the Tax Matters Agreement without first obtaining a Supplemental Tax Opinion (as defined in the Tax Matters Agreement) or (iii) received a notice described in Section 7.1 of the Tax Matters Agreement.

(l)

Since the Spin Date, neither the Company nor any of its Subsidiaries has been a “distributing corporation” or a “controlled corporation,” or has otherwise participated, in a transaction intended to qualify under Section 355 of the Code.

(m)

For purposes of this Section 4.15, all representations and warranties made with respect to the Company and its Subsidiaries are equally made with respect to any predecessor of the Company or any of its Subsidiaries that became such a predecessor following the Spin Date and any former Subsidiaries of the Company (with respect to all applicable periods following the Spin Date during or with respect to which such Subsidiaries were, or were treated as, Subsidiaries of the Company under applicable Tax Laws).

The representations and warranties set forth in this Section 4.15 and, to the extent relating to Tax matters, Section 4.12, are the Company’s sole and exclusive representations with respect to Tax matters in this Agreement.

Section 4.16

Material Contracts.

(a)

Section 4.16(a) of the Company Disclosure Letter sets forth a list, as of the date hereof, of each Company Material Contract. For purposes of this Agreement, “Company Material Contract” means any Contract (other than any Company Benefit Plan, Contracts related to any Leased Real Property or Contracts solely between or among the Company and/or any of its wholly owned Subsidiaries) to which the Company or any of its Subsidiaries is a party or their respective properties or assets are bound, except for this Agreement, that:

(i) constitutes a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);

(ii) is (A) a joint venture, alliance or partnership agreement, limited liability company agreement, collaboration agreement or similar Contract that is material to the operation of the Company and its Subsidiaries, taken as a whole or (B) the Specified Agreement;

(iii) is a Contract that expressly limits or restricts the ability of the Company or any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;

(iv) is a collective bargaining agreement with a labor union (other than industry-wide agreements outside of the United States);

(v) is a loan, guarantee of indebtedness or credit agreement, note, mortgage, security agreement, pledge, indenture or other binding commitment relating to indebtedness for borrowed money or the deferred purchase price of property or services or other similar financial Contract (other than (A) those related to trade payables arising in the ordinary course of business or (B) indebtedness for borrowed money less than $20 million individually);

(vi) is an acquisition agreement, asset purchase agreement, stock purchase agreement or other similar agreement (other than agreements to purchase or acquire inventory in the ordinary course of business) (A) entered into during the two (2) year period prior to the date hereof pursuant to which the Company or any of its Subsidiaries have ongoing material obligations or liabilities, including deferred purchase price payments, earn-out payments or indemnification obligations or (B) which has not yet been consummated, pursuant to which (i) the Company or any Subsidiary of the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date hereof in excess of $25 million or (ii) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries (or any interests therein) after the date of this Agreement with a purchase price of more than $25 million;

(vii) is a Contract entered into outside the ordinary course of business that involves future expenditures, commitments or receipts by the Company or any of its Subsidiaries of more than $25 million in any (1) one-year period that cannot be terminated on less than ninety (90) days’ notice without material payment or penalty;

(viii) is a material Contract with a Key Company Customer or Key Company Supplier; provided that such Contracts are not required to be listed on Section 4.16(a)(viii) of the Company Disclosure Letter;

(ix) is a Contract that prohibits the Company or any of its Subsidiaries from (A) engaging or competing in any material line of business, in any geographical location or with any Person, (B) acquiring or disposing of securities of another Person, (C) selling any products or services of or to any other Person in any geographic region or (D) contains an exclusivity or other clause that restricts the operations of the business of the Company and its Subsidiaries in a material manner; provided that such Contracts described in clause (D) are not required to be listed on Section 4.16(a)(ix) of the Company Disclosure Letter;

(x) is a Contract that grants any rights of first refusal or rights of first offer to any Person with respect to the sale, transfer or other disposition of any business or line of business or material assets or properties of the Company or any of its Subsidiaries; provided that such Contracts are not required to be listed on Section 4.16(a)(x) of the Company Disclosure Letter;

(xi) is an agreement pursuant to which the Company or any of its Subsidiaries is granted or grants a right to use material Intellectual Property Rights (other than Contracts (A) in which grants of Intellectual Property Rights are incidental to such Contracts and/or (B) granting rights to use commercially available hardware or software including pursuant to shrink wrap, click through or other standard licensing terms);

(xii) is a Contract pursuant to which the Company or its Subsidiaries are obligated to pay to any Third Party royalties or other use fees on a per Company Product unit basis (A) upon or for the use or exploitation of any Company Intellectual Property Rights or (B) upon the manufacturing, use, sale, lease, license, distribution, provision, sale or other disposition or exploitation of any Company Product, in each case under Contracts for which the total of such payments under such Contracts exceeded $15 million in the last calendar year;

(xiii) is a Contract to which the Company or any of its Subsidiaries is a party or which is binding on the Company or any of its Subsidiaries that directly or indirectly obligates (i) an Affiliate (including any future Affiliates) of the Company that is not a Subsidiary of the Company or (ii) the Company or any of its Subsidiaries to cause or require an Affiliate (including any future Affiliates) of the Company that is not a Subsidiary of the Company, in any such case, to (A) grant to any other Person (including the counterparty to such Contract and/or its Affiliates) any right to or with respect to any Intellectual Property Right or (B) be bound by, or subject to, any covenant (including any covenant not to sue or assert rights) with respect to any Intellectual Property Rights (any such Contract described in clauses (i) or (ii), a “Specified IP Contract”), which Specified IP Contract is material to the Company and its Subsidiaries; or

(xiv) is any Contract that includes any Affiliate of the Company as a counterparty or third party beneficiary and that would be required to be disclosed under Item 404 of Regulation S-K of the SEC.

(b)

Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract where such breach or default would have a Company Material Adverse Effect. As of the date hereof, to the Knowledge of the Company, (i) no other party to any Company Material Contract is in material breach of or material default under the terms of any Company Material Contract, (ii) no event or circumstance has occurred that, with notice or lapse of time or both, would constitute any event of default thereunder, where such breach or default would have a Company Material Adverse Effect and (iii) neither the Company nor any Subsidiary has received any written notice of a material breach or material default from a counterparty to any Company Material Contract or written notice of an express intention that such counterparty intends to terminate, suspend, cancel or materially and adversely modify its business relationship with the Company and/or its Subsidiaries in connection with a Company Material Contract or the terms thereof. Each Company Material Contract is a valid and binding obligation of the Company or its Subsidiary and, to the Knowledge of the Company, the other parties thereto, except such as would not have a Company Material Adverse Effect; provided that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights and remedies generally and (ii) the remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. Complete and correct copies of each Company Material Contract (other than any with respect to Section 4.16(a)(viii), Section 4.16(a)(ix) or Section 4.16(a)(x)), as amended and supplemented, have been filed with the SEC or made available by the Company to the Acquiring Parties, in each case prior to the date hereof.

Section 4.17

Real Property.

(a)

The Company SEC Documents list all material real property owned by the Company or any of its Subsidiaries (collectively, including the improvements thereof, the “Owned Real Property”). Except as would not be material to the Company and its Subsidiaries, taken as a whole, neither the Company nor any of its Subsidiaries is a party to a contract of sale to purchase real property in which the conveyance contemplated therein has not yet been consummated, and there are no outstanding options or rights of first refusal or rights of first offer to purchase the parcel, or any portion thereof or interest therein.

(b)

Section 4.17(b) of the Company Disclosure Letter sets forth a true, correct and complete list of (i) all material real property leased by the Company or any of its Subsidiaries (collectively, including the improvements thereon, the “Leased Real Property”), and (ii) all leases, subleases and material licenses or other occupancy agreements, including all amendments and modifications thereto (collectively, the “Real Property Leases”) pursuant to which the Company or any of its Subsidiaries leases, subleases, licenses or otherwise occupies (whether as a tenant, subtenant or pursuant to other occupancy arrangements) the Leased Real Property.

(c)

Except as would not be material to the Company and its Subsidiaries, taken as a whole, or as set forth in Section 4.17(c) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is party to any lease or sublease to any third party demising to such third party any right to occupy all or any portion of any of the Owned Real Property or the Leased Real Property.

(d)

Except as would not have a Company Material Adverse Effect, the Company and/or its Subsidiaries have good fee simple title to all Owned Real Property and valid leasehold, subleasehold or license interests in all Leased Real Property free and clear of all Liens, except Permitted Liens. The Owned Real Property and the Leased Real Property constitute all of the real property used by the Company or any of its Subsidiaries in the operation of their respective businesses.

(e)

Neither the Company nor any of its Subsidiaries has received notice of any default under any of the material provisions of any of the Real Property Leases that has not been cured, and, to the Knowledge of the Company, except as would not have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries has received any written communication from, or given any written communication to, any third party that is a party to any of the Real Property Leases alleging that the Company or any of its Subsidiaries or such other party, as the case may be, is in default under such Real Property Lease.

(f)

There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings, lawsuits or administrative actions relating to any portion of the Owned Real Property or the Leased Real Property.

Section 4.18

Environmental. Except as would not have a Company Material Adverse Effect:

(a)

The Company and its Subsidiaries are in compliance, and have been in compliance since the Spin Date, with all applicable Environmental Laws, including possessing all Company Permits required for their operations under applicable Environmental Laws. All such Company Permits are in full force and effect and no suspension or cancellation of any of such Company Permits is pending or, to the Knowledge of the Company, threatened;

(b)

There is no pending or threatened Action pursuant to any Environmental Law against the Company or any of its Subsidiaries;

(c)

Since the Spin Date through the date of this Agreement, neither the Company nor any of its Subsidiaries has received written notice from any Person, including any Governmental Authority, alleging that the Company or any of its Subsidiaries has been or is in violation or potentially in violation of any applicable Environmental Law or otherwise may be liable under any applicable Environmental Law, which violation or liability is unresolved;

(d)

Neither the Company nor any of its Subsidiaries is a party or subject to any Order pursuant to Environmental Law for which obligations of the Company or any of its Subsidiaries remain outstanding; and

(e)

To the Knowledge of the Company, with respect to the Owned Real Property and the Leased Real Property, any property formerly owned or leased by the Company, and any property at which the Company arranged for the disposal of Hazardous Materials, there have been no Releases on or underneath any of such real properties that has caused environmental contamination at such real properties that is reasonably likely to result in an obligation to investigate or remediate such environmental contamination pursuant to applicable Environmental Law.

The representations and warranties set forth in this Section 4.18, Sections 4.5 through 4.10, Section 4.16 and Section 4.24 are the Company’s sole and exclusive representations with respect to Environmental Laws or Releases in this Agreement.

Section 4.19

Key Company Customers; Key Company Suppliers.

(a)

Section 4.19(a) of the Company Disclosure Letter lists the top ten (10) customers, measured by revenue, of the Company and its Subsidiaries (taken as a whole) for the year ended December 31, 2020 (the “Key Company Customers”).

(b)

Section 4.19(b) of the Company Disclosure Letter lists the top ten (10) suppliers, measured by dollar volume of purchases, of the Company and its Subsidiaries (taken as a whole) for the year ended December 31, 2020 (“Key Company Suppliers”).

(c)

Except as would not be material to the Company and its Subsidiaries, taken as a whole, since December 31, 2020, (A) no Key Company Supplier has terminated, suspended, cancelled or materially and adversely modified or, to the Knowledge of the Company, threatened in writing to terminate, suspend, cancel or materially and adversely modify, its business relationship with the Company and/or any of its Subsidiaries in connection with, or the terms of a Company Material Contract and (B) no Key Company Customer has been terminated, suspended, cancelled or materially and adversely modified or, to the Knowledge of the Company, threatened in writing to terminate suspend, cancel, materially and adversely modify, its business relationship with the Company and/or any of its Subsidiaries in connection with, or the terms of a Company Material Contract. As of the date of this Agreement, there are no unresolved material claims or disputes pending between the Company and/or any of its Subsidiaries, on the one hand, and any Key Company Supplier or Key Company Customer, on the other hand.

Section 4.20

Quality and Safety of Products.

(a)

Since the Spin Date, neither the Company nor any of its Subsidiaries has received written notice from (i) any of its customers that such customer has, (A) received any written notice or allegation from a Governmental Authority, (B) been a party or subject to any Action brought or initiated by a Governmental Authority or (C) been threatened in writing by a Governmental Authority with any Action or investigation or (ii) a Governmental Authority that contained allegations or threatened or stated a basis for initiating an Action or investigation, in each of the foregoing clauses (i) and (ii), with respect to the failure or alleged failure of any product produced, sold or distributed by or on behalf of the Company or any of its Subsidiaries to meet applicable manufacturing, quality or labeling standards established by Law, except, in each case, that would not be material to the Company and its Subsidiaries, taken as a whole.

(b)

Since the Spin Date, except as set forth on Section 4.20 of the Company Disclosure Letter, (i) no product or services being produced or sold by or on behalf of the Company or any of its Subsidiaries has been the subject of any recall (whether or not ordered by a Governmental Authority), suspension, market withdrawal, safety alert or similar action that is material to the Company and its Subsidiaries, taken as a whole, and (ii) the Company and its Subsidiaries have not received any written notice from any customer or Governmental Authority in connection with a claim or allegation against the Company or its Subsidiaries, in each case related to any such recall, except in each of the foregoing clauses (i) and (ii) for any such recalls that would not, be material to the Company and its Subsidiaries, taken as a whole.

Section 4.21

Anti-Bribery; Export Controls and Sanctions.

(a)

Since the Spin Date and except as would not have a Company Material Adverse Effect, neither (a) the Company, nor any of its Subsidiaries, nor any director, officer, or (b) to the Knowledge of the Company, employee of the Company or any of its Subsidiaries or any Representative while acting for or on behalf of any of the foregoing, has directly or, indirectly (i) made, accepted, promised, or authorized any unlawful payment to or from any foreign or domestic government officials or employees or to/from any foreign or domestic political parties or campaigns, or to or from any private third parties, in violation of any provisions of any applicable anti-bribery Laws, including the U.S. Foreign Corrupt Practices Act of 1977, and the rules and regulations thereunder (collectively, the “FCPA”) or the UK Bribery Act 2010 (the “Bribery Act”), or (ii) taken any action or engaged in any conduct, activity or practice for or on behalf of the Company or any of its Subsidiaries that would otherwise constitute a violation of or an offense under any applicable anti-bribery Laws, including the FCPA and the Bribery Act. The Company and its Subsidiaries maintain, and since the Spin Date, have maintained policies and procedures that are reasonably designed to ensure compliance with anti-bribery Laws. Neither the Company nor any of its Subsidiaries have been notified of any actual, pending, or threatened civil, criminal, or administrative actions or governmental investigations, inquiries or enforcement actions, or made any voluntary disclosures to any Governmental Authority, involving the Company or any Subsidiary of Company relating to alleged violations of applicable anti-bribery Laws, including the FCPA and the Bribery Act.

(b)

Except as would not have a Company Material Adverse Effect, none of the Company or any of its Subsidiaries, or, to the Knowledge of the Company, any of their Representatives or any other Persons, in each case to the extent acting or purporting to act for and on behalf of any of the Company or any of its Subsidiaries, is or has been, since the Spin Date, (i) a Person named on any Sanctions Laws-related or Export Control Laws-related list of designated Persons; (ii) located, organized or resident in a country or territory which is itself the subject of or target of any Sanctions Laws; (iii) an entity owned, directly or indirectly, individually or in the aggregate, fifty percent (50%) or more by one or more Persons on any Sanctions Laws-related list of designated Persons or Persons described in clause (ii); (iv) transacting business with or on behalf of any Person described in clauses (i)-(iii) or any country or territory described in clause (ii) in violation of Sanctions Laws; or (v) otherwise in violation of Sanctions Laws or Export Control Laws.

Section 4.22

Brokers. Except for those Persons set forth in Section 4.22 of the Company Disclosure Letter, no broker, finder, investment banker, consultant or intermediary is entitled to any investment banking, brokerage, finder’s or similar fee or commission in connection with the Merger or any of the other transactions contemplated by this Agreement or in connection with the Magna Agreement (including the termination thereof) based upon arrangements made by or on behalf of the Company or any of its Subsidiaries.

Section 4.23

Opinion of Financial Advisor. The Company Board has received the separate opinions of Morgan Stanley & Co. LLC and Rothschild & Co. US Inc. (together, the “Financial Advisors”), that, as of the respective date of such opinions and subject to the limitations, qualifications and assumptions and other matters set forth in each such opinion, the Merger Consideration to be received by the holders of shares of the Company Common Stock pursuant to this Agreement is fair, from a financial point of view, to such holders of shares of Company Common Stock. The Company has made available to the Acquiring Parties true and complete copies of the Company’s engagement letters with the Financial Advisors, all other agreements under which any fees or expenses may become payable to the Financial Advisors in connection with (x) the Merger and the other transaction contemplated by this Agreement, (y) the Magna Agreement and the transactions contemplated thereby (including the termination thereof) and (z) all indemnification and other agreements related to the Company’s engagement of the Financial Advisors. No amount will be payable to the Financial Advisors or any of the other Persons set forth on Section 4.22 of the Company Disclosure Letter in connection with the Magna Agreement or any of the transactions contemplated thereby, except as are credited to any amount payable in connection with this Agreement or the transactions contemplated hereby, including the Merger.

Section 4.24

Insurance. Section 4.24 of the Company Disclosure Letter contains a list of the material insurance policies maintained by the Company in effect as of the date of this Agreement. To the Knowledge of the Company, except as would not have a Company Material Adverse Effect, as of the date of this Agreement, (a) each such insurance policy is in full force and effect and all premiums due thereon have been paid in full and (b) the Company has not received a written notice of cancellation from the insurer(s) of any such insurance policy.

Section 4.25

Takeover Statutes. The Company Board has taken such actions and votes as are necessary to render the provisions of any “fair price,” “moratorium,” “control share acquisition” or any other takeover or anti-takeover statute or similar federal or state Law (“Takeover Laws”) inapplicable to this Agreement, the Merger or any other transactions contemplated by this Agreement.

Section 4.26

Termination of Magna Agreement. Prior to the execution and delivery of this Agreement and subject to the Magna Payment, the Company has validly terminated the Magna Agreement in accordance with its terms and has no further liabilities thereunder. The Company has instructed Magna to deliver to the Company or destroy or erase all Confidential Information (as defined in the Magna Confidentiality Agreement) previously furnished to Magna or Magna’s Representatives by or on behalf of the Company or any of its Subsidiaries (in accordance with the terms of the Magna Confidentiality Agreement), except as permitted in the Magna Confidentiality Agreement.

Section 4.27

No Other Representations or Warranties.

(a)

Except for the representations and warranties expressly set forth in this Article IV or any certificate delivered hereunder, neither the Company nor any other Person on behalf of the Company makes, or has made (and the Company, on behalf of itself, each of the Company’s Subsidiaries and their respective Affiliates and Representatives, hereby disclaims), any express or implied representation or warranty with respect to the Company or any of the Company’s Subsidiaries or with respect to the accuracy or completeness of any information provided, or made available, to the Acquiring Parties, Merger Sub or any of their Affiliates or Representatives, including with respect to their business, operations, assets, liabilities, conditions (financial or otherwise), prospects or otherwise in connection with this Agreement, the Merger or the other transactions contemplated by this Agreement, and the Acquiring Parties and Merger Sub and their respective Representatives and Affiliates are not relying on, and waive any claim based on reliance on, any representation, warranty or other information of the Company, any of the Company’s Subsidiaries or any other Person except for those expressly set forth in this Article IV or any certificate delivered hereunder. Except for the representations and warranties expressly set forth in this Article IV or any certificate delivered hereunder, none of the Company, any of the Company’s Subsidiaries or any other Person makes (and the Company, on behalf of itself, each of the Company’s Subsidiaries, and their respective Affiliates and Representatives, hereby disclaims) any express or implied representation or warranty (including as to completeness or accuracy) to the Acquiring Parties or Merger Sub with respect to, and none of the Company, the Company’s Subsidiaries or any other Person shall be subject to, any liability to the Acquiring Parties, Merger Sub or any other Person resulting from, the Company, the Company’s Subsidiaries or their respective Representatives providing or making available to the Acquiring Parties, Merger Sub or any of their Affiliates or their respective Representatives, or resulting from the omission of, any estimate, projection, prediction, forecast, data, financial information, memorandum, presentation or any other materials or information, including any materials or information made available to the Acquiring Parties and/or their Representatives or Affiliates in connection with presentations by the Company’s management or information made available on any electronic data room for “Project Hercules II” and maintained by the Company for purposes of the Merger and the other transactions contemplated by this Agreement, including the electronic data room hosted by Datasite under the title Hercules II (collectively, the “VDR”).

(b)

Except for the representations and warranties contained in Article V or any certificate delivered hereunder, the Company acknowledges and agrees that (i) none of the Acquiring Parties, their respective Subsidiaries (including Merger Sub) or any other Person on behalf of any of the Acquiring Parties makes, or has made, any express or implied representation or warranty with respect to any of the Acquiring Parties or Merger Sub, including with respect to their business, operations, assets, liabilities, conditions (financial or otherwise), prospects or otherwise in connection with this Agreement, the Merger or the other transactions contemplated by this Agreement and the Company is not relying on any representation, warranty or other information of any Person except for those expressly set forth herein and (ii) no Person has been authorized by any of the Acquiring Parties, their respective Subsidiaries (including Merger Sub) or any other Person on behalf of any of the Acquiring Parties to make any representation or warranty relating to any of the Acquiring Parties or Merger Sub or their respective business or otherwise in connection with this Agreement and Merger, and if made, such representation or warranty shall not be relied upon by the Company as having been authorized by either such entity.

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF THE ACQUIRING PARTIES AND MERGER SUB

Each of the Acquiring Parties and Merger Sub hereby represent and warrant to the Company, in the case of QUALCOMM, on a joint and several basis, and, in the case of SSW and Merger Sub, on a several basis, in each case as of the date hereof, as follows:

Section 5.1

Organization and Qualification. Each of the Acquiring Parties and Merger Sub is a corporation, partnership or other entity duly organized, validly existing and (to the extent applicable) in good standing under the laws of the jurisdiction of its incorporation or organization and has the requisite entity power and authority to conduct its business as it is now being conducted, except where the failure to be in good standing or to have such power and authority as would not have an Acquiring Party Material Adverse Effect. Each of the Acquiring Parties and Merger Sub is duly qualified or licensed to do business and (to the extent applicable) is in good standing in each jurisdiction in which the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed and (to the extent applicable) in good standing would not have an Acquiring Party Material Adverse Effect. Each of the Acquiring Parties have made available to the Company a copy of such the Acquiring Party’s Organizational Documents, as currently in effect, and neither of the Acquiring Parties nor Merger Sub is in violation of any provision of such documents applicable to such party.

Section 5.2

Authority Relative to Agreement.

(a)

Each of the Acquiring Parties and Merger Sub have all necessary entity power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, including the Merger. The execution, delivery and performance of this Agreement by each of the Acquiring Parties and Merger Sub, and the consummation by each of the Acquiring Parties and Merger Sub of the transactions contemplated by this Agreement, have been duly and validly authorized by all necessary entity action by each of the Acquiring Parties and Merger Sub, and no other entity Action on the part of any one or more of the Acquiring Parties and Merger Sub is necessary to authorize the execution, delivery and performance of this Agreement by each of the Acquiring Parties and Merger Sub and the consummation by each of the Acquiring Parties and Merger Sub of the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by each of the Acquiring Parties and Merger Sub and, assuming due authorization, execution and delivery of this Agreement by the other party hereto, constitutes a legal, valid and binding obligation of each of the Acquiring Parties and Merger Sub, enforceable against each of the Acquiring Parties and Merger Sub in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights and remedies generally and (ii) the remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

(b)

The board of directors or similar governing body of each of the Acquiring Parties and Merger Sub has unanimously (i) approved this Agreement, the Merger and the other transactions contemplated hereby, (ii) determined that the Merger and the other transactions contemplated hereby, taken as a whole, are advisable and in the best interests of each of the Acquiring Parties, Merger Sub and their respective stockholders or other equityholders, as applicable and (iii) in the case of SSW and Merger Sub, recommended the adoption of this Agreement by Merger Sub’s sole stockholder. The sole stockholder of Merger Sub, which is a wholly owned Subsidiary of SSW, has adopted this Agreement and the consummation of the transactions contemplated hereby, including the Merger, and no further vote of, or consent by, SSW or Merger Sub is required. No vote of, or consent by, the holders of any class or series of capital stock of any one or more of the Acquiring Parties is necessary to authorize the execution, delivery and performance by each of the Acquiring Parties of this Agreement and the consummation of the transaction contemplated hereby or otherwise required by the amended and restated articles of incorporation or bylaws of any one or more of the Acquiring Parties or applicable Law (including any stockholder approval provisions under the rules of any applicable securities exchange).

Section 5.3

No Conflict; Required Filings and Consents.

(a)

Neither the execution and delivery of this Agreement by each of the Acquiring Parties and Merger Sub nor the consummation by each of the Acquiring Parties and Merger Sub of the transactions contemplated hereby will (i) violate any provision of any one or more of the Acquiring Parties’ or their respective Subsidiaries’ certificate of incorporation or bylaws (or equivalent organizational documents), (ii) assuming that the Consents, registrations, declarations, filings and notices referred to in Section 5.3(b) have been obtained or made, any applicable waiting periods referred to therein have expired and any condition precedent to any such Consent has been satisfied, conflict with or violate any Law applicable to any one or more of the Acquiring Parties and any of their respective Subsidiaries (including Merger Sub) or by which any property or asset of any one or more of the Acquiring Parties or any of their respective Subsidiaries (including Merger Sub) is bound or affected or (iii) result in any breach of, or constitute a default (with or without notice or lapse of time, or both) under, or give rise to any right of termination, acceleration or cancellation of, any material Contract to which any one or more of the Acquiring Parties or any of their respective Subsidiaries (including Merger Sub) is a party, or by which any of their respective properties or assets is bound, other than, in the case of clauses (ii) and (iii), any such conflict, violation, breach, default, termination, acceleration or cancellation that would not have an Acquiring Party Material Adverse Effect.

(b)

No Consent of, or registration, declaration or filing with or notice to, any Governmental Authority is required to be obtained or made by or with respect to any of the Acquiring Parties or any of its Subsidiaries (including Merger Sub) in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby, other than (i) the filing with the SEC of such reports under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ii) the filing of the Certificate of Merger with the Secretary in accordance with the DGCL, (iii) such filings as may be required in connection with the Taxes described in Section 8.6, (iv) filings with the Nasdaq, (iv) such other items required solely by reason of the participation of the Company in the transactions contemplated hereby, (vii) compliance with and filings or notifications under the HSR Act or other Antitrust Laws and Investment Screening Laws and (viii) such other Consents, registrations, declarations, filings or notices the failure of which to be obtained or made would not have an Acquiring Party Material Adverse Effect.

Section 5.4

Litigation. As of the date hereof, there is no Action pending or threatened against any of the Acquiring Parties or any of their respective Subsidiaries that would have an Acquiring Party Material Adverse Effect, nor is there any Order of any Governmental Authority outstanding against, or investigation by any Governmental Authority involving, any of the Acquiring Parties or any of their respective Subsidiaries that would have an Acquiring Party Material Adverse Effect. As of the date hereof, there is no Action pending or threatened seeking to prevent, enjoin, modify or materially delay or challenge the Merger or any of the other transactions contemplated by this Agreement or the ability of any of the Acquiring Parties to fully perform their covenants and obligations pursuant to this Agreement.

Section 5.5

Absence of Certain Agreements. Neither of the Acquiring Parties nor any of their respective Affiliates (including Merger Sub) has entered into any Contract, arrangement or understanding (in each case, whether oral or written), or authorized, committed or agreed to enter into any Contract, arrangement or understanding (in each case, whether oral or written), pursuant to which: any stockholder of the Company would be entitled to receive consideration of a different amount or nature than the Merger Consideration or pursuant to which any stockholder of the Company (i) agrees to vote to adopt this Agreement or the Merger or (ii) agrees to vote against any Superior Proposal.

Arriver Holdco (VNE) 8-KQualcomm and SSW Partners Reach Definitive Agreement to Acquire Veoneer