Exhibit 10.1
SEPARATION AGREEMENT
This Separation Agreement (this "Agreement") is made and entered into as of
November 1, 2002, by and among DSP Group, Inc., a Delaware corporation
("DSPGI"), DSP Group Ltd., an Israeli corporation ("DSPGL"), Ceva, Inc., a
Delaware corporation ("Ceva, Inc."), DSP Ceva, Inc., a Delaware corporation
("DSP Ceva"), and Corage, Ltd., an Israeli corporation ("Corage, Ltd.").
Recitals
A. DSPGI owns all of the issued and outstanding capital stock of DSPGL and
Ceva, Inc.
B. Ceva, Inc. owns all of the issued and outstanding capital stock of DSP
Ceva.
C. DSPGL owns all of the issued and outstanding capital stock of Corage, Ltd.
D. DSPGI and DSPGL are in the Products Business (as defined herein) and in
the Licensing Business (as defined herein).
E. DSPGI and DSPGL collectively own and license certain intangible property,
including but not limited to patents, trademarks and other intellectual
property, relating to the Licensing Business, the beneficial rights to which in
the United States are owned by DSPGI and in the rest of the world are owned by
DSPGL.
F. The Boards of Directors of DSPGI and DSPGL have determined that it is
appropriate and desirable, on the terms and conditions contemplated by this
Agreement, for the parties to separate the Licensing Business and its assets
from the Products Business by taking the following actions (such actions
collectively constituting the "Separation"):
(i) DSPGL will transfer to Corage, Ltd. all of its right, title and
interest in the Licensing Business Assets (but reserving the right to use
certain Transferable Licensing IP, as it currently exists, in the Products
Business), in exchange for the issuance by Corage, Ltd. to DSPGL of shares
of Corage, Ltd. capital stock;
(ii) DSPGL will distribute to DSPGI all of the issued and outstanding
capital stock of Corage, Ltd.;
(iii) In exchange for the issuance by Ceva, Inc. to DSPGI of shares of
Ceva, Inc. capital stock, DSPGI simultaneously will contribute and transfer
to Ceva, Inc. (A) all right, title and interest of DSPGI in the Licensing
Business Assets (but reserving the right to use
certain Transferable Licensing IP (as defined in the Technology Transfer
Agreements), as it currently exists, in the Products Business), and (B) all
of the issued and outstanding shares of capital stock of Corage, Ltd.; and
(iv) In exchange for the issuance to Ceva, Inc., of shares of DSP Ceva
capital stock, Ceva, Inc. in turn will contribute and transfer to DSP Ceva
(A) all of the issued and outstanding shares of capital stock of Corage,
Ltd., so that Corage, Ltd. will be a wholly-owned subsidiary of DSP Ceva;
and (B) all of the right, title and interest of Ceva, Inc. in the Licensing
Business Assets.
G. The Boards of Directors of DSPGI and Ceva, Inc. have determined further
that, following completion of the Separation, it is appropriate and desirable,
on the terms and conditions of this Agreement and the Combination Agreement,
for DSPGI to distribute to holders of shares of DSPGI Common Stock the
outstanding shares of Ceva, Inc. Common Stock owned directly or indirectly by
DSPGI (the "Distribution").
H. DSPGI and Ceva, Inc. intend that the Separation shall qualify as either a
reorganization under Section 368(a)(1)(D) of the Internal Revenue Code of 1986,
as amended (the "Code") or as an exchange under Section 351 of the Code and
intend that the Separation and the Distribution qualify under Section 355 of
the Code and that Section 355(e) of the Code shall not apply to the Separation
and the Distribution.
I. DSPGI and Ceva, Inc. have entered into the Combination Agreement dated
April 4, 2002, as amended, with Parthus Technologies plc (the "Combination
Agreement"), providing, among other things, for the combination of Parthus
Technologies plc and Ceva, Inc. in a transaction in which shares of Ceva, Inc.
will be issued to the shareholders of Parthus Technologies plc, and Ceva, Inc.
will acquire all of the outstanding capital stock of Parthus Technologies plc
(the "Combination").
J. The consummation of the Separation and the Distribution is a condition to
the consummation of the Combination.
K. The parties wish to set forth the principal corporate transactions
required to effect the Separation and the Distribution and certain other
agreements that will govern certain matters relating to the Separation and the
Distribution, and the relationship of the parties following the Separation and
the Distribution.
Agreements
For good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
For the purpose of this Agreement the following terms shall have the
following meanings:
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"Action" means any demand, action, suit, countersuit, arbitration, inquiry,
proceeding or investigation by or before any federal, state, local, foreign or
international Governmental Authority or any arbitration or mediation tribunal.
"Active Trade or Business" means the active conduct of the trade or business
(as defined in Section 355(b)(2) of the Code) conducted by Ceva, Inc.
immediately prior to the Distribution Date.
"Affiliate" of any Person means a Person that controls, is controlled by, or
is under common control with such Person. As used herein, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such entity, whether through
ownership of voting securities or other interests, by contract or otherwise.
"Agent" means the distribution agent to be appointed by DSPGI to distribute
to the stockholders of DSPGI pursuant to the Distribution the shares of Ceva,
Inc. Common Stock held by DSPGI.
"Agreed Amount" means part, but not all, of the Claimed Amount.
"Ancillary Agreements" means the documents executed and delivered by the
parties pursuant to Section 2.2 of this Agreement
"Applicable Deadline" has the meaning given in Section 8.3(b).
"Arbitration Act" means the United States Arbitration Act, 9 U.S.C. 1-14, as
the same may be amended from time to time.
"Award" means any issuance of DSPGI Options to a single person with the same
date of grant and exercise price.
"Claim Notice" means written notification which contains (i) a description
of the Damages incurred or reasonably expected to be incurred by the Indemnitee
and the Claimed Amount of such Damages, to the extent then known, (ii) a
statement that the Indemnitee is entitled to indemnification under Article V
for such Damages and a reasonable explanation of the basis therefor, and (iii)
a demand for payment in the amount of such Damages.
"Claimed Amount" means the amount of any Damages incurred or reasonably
expected to be incurred by the Indemnitee.
"Code" has the meaning given in the Recitals.
"Combination" has the meaning given in the Recitals.
"Combination Agreement" has the meaning given in the Recitals.
"Combination Closing" means the closing of the transactions contemplated
under the Combination Agreement.
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"Combination Effective Date" means the date on which the Combination Closing
occurs.
"Commission" means the United States Securities and Exchange Commission.
"Consents" means any consent, waiver or approval from, or notification
requirements to, any third party.
"Corage Assumed Liabilities" has the meaning given in Section 2.5.
"Corage Balance Sheet" means the Most Recent Balance Sheet as such term is
defined in the Combination Agreement.
"Ceva, Inc. Common Stock" means Common Stock, $.001 par value per share, of
Ceva, Inc.
"Corage Employees" means the current employees of Ceva, Inc., Corage, Ltd.
or DSP Ceva and any other employees who are hired by Ceva, Inc., Corage, Ltd.
or DSP Ceva prior to the Distribution Date.
"Ceva, Inc. Group" means Ceva, Inc., and each Subsidiary of Ceva, Inc.
(including any Subsidiary contributed to Ceva, Inc. pursuant to the Separation)
immediately after the Combination Effective Date.
"Ceva, Inc. Indemnitees" has the meaning given in Section 5.3.
"Ceva, Inc. Technology Transfer Agreement" has the meaning given in Section
2.2(e).
"Corage, Ltd. Stock Certificates" has the meaning given in Section 2.2(c).
"Corage, Ltd. Stock Powers" has the meaning given in Section 2.2(c).
"Corage, Ltd. Technology Transfer Agreement" has the meaning given in
Section 2.2(a).
"Cost Sharing Agreement" means the Cost Sharing Agreement dated as of
January 1, 1998, between DSPGI and DSPGL.
"Damages" means any and all debts, obligations and other liabilities
(whether absolute, accrued, contingent, fixed or otherwise, or whether known or
unknown, or due or to become due or otherwise), diminution in value, monetary
damages, fines, fees, penalties, interest obligations, deficiencies, losses and
expenses (including amounts paid in settlement, interest, court costs, costs of
investigators, fees and expenses of attorneys, accountants, financial advisors
and other experts, and other expenses of litigation), other than those costs
and expenses of arbitration of a Dispute which are to be shared equally by the
Indemnitee and the Indemnifying Party as set forth in Article VIII.
"Definitive Guidance" means, with respect to the United States, temporary or
final Treasury regulations, a Revenue Ruling, Revenue Procedure or Notice
issued by the IRS or a
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final decision of the United States Tax Court, and with respect to any other
jurisdiction, any similar guidance.
"Dispute" means the dispute resulting if the Indemnifying Party disputes its
liability for all or part of the Claimed Amount.
"Distribution" has the meaning given in the Recitals.
"Distribution Date" means the date determined pursuant to Section 3.1 on
which the Distribution occurs.
"DSP Europe" means DSP Group Europe Sarl, a French company.
"DSP Japan" means Nikon DSP K.K., a Japanese company.
"DSPGI Common Stock" means the Common Stock, $.001 par value per share, of
DSPGI.
"DSPGI Group" means DSPGI and each Subsidiary of DSPGI (other than any
member of the Ceva, Inc. Group) immediately after the Distribution Date.
"DSPGI Indemnitees" has the meaning given in Section 5.2.
"DSPGI Legacy Option" has the meaning set forth in Section 3.7(c).
"Employees Proprietary Information Agreements" shall have the meaning set
forth in Section 2.6(c).
"Environmental Liabilities" means all Liabilities relating to, arising out
of or resulting from any Environmental Law or contract or agreement relating to
environmental, health or safety matters (including all removal, remediation or
cleanup costs, investigatory costs, governmental response costs, natural
resources damages, property damages, personal injury damages, costs of
compliance with any settlement, judgment or other determination of Liability
and indemnity, contribution or similar obligations) and all costs and expenses,
interest, fines, penalties or other monetary sanctions in connection therewith.
"Environmental Law" means any federal, state, local, foreign or
international statute, ordinance, rule, regulation, code, license, permit,
authorization, approval, consent, common law (including tort and environmental
nuisance law), legal doctrine, order, judgment, decree, injunction, requirement
or agreement with any Governmental Authority, now or hereafter in effect
relating to health, safety, pollution or the environment (including ambient
air, surface water, groundwater, land surface or subsurface strata) or to
emissions, discharges, releases or threatened releases of any substance
currently or at any time hereafter listed, defined, designated or classified as
hazardous, toxic waste, radioactive or dangerous, or otherwise regulated, under
any of the foregoing, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of any
such substances, including the Comprehensive Environmental Response,
Compensation and Liability Act, the Superfund
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Amendments and Reauthorization Act and the Resource Conservation and Recovery
Act and comparable provisions in state, local, foreign or international law.
"Form 10" has the meaning given in Section 3.3.
"Governmental Approval" means any authorization, consent, order or approval
of, or declarations or filings with, or expirations of any waiting period
imposed by any Governmental Authority.
"Governmental Authority" shall mean any federal, state, local, foreign or
international court, government, department, commission, board, bureau, agency,
official or other regulatory, administrative or governmental authority.
"Group" means with respect to Ceva, Inc., the Ceva, Inc. Group, and with
respect to DSPGI, the DSPGI Group.
"Income Tax Return" shall mean any tax return relating to income tax.
"Indemnifying Party" has the meaning given in Section 5.4(a).
"Indemnitee" has the meaning given in Section 5.4(a).
"Indemnity Payment" has the meaning given in Section 5.4(a).
"Information" means information, whether or not patentable or copyrightable,
in written, oral, electronic or other tangible or intangible forms, stored in
any medium, including studies, reports, records, books, contracts, instruments,
surveys, discoveries, ideas, concepts, know-how, techniques, designs,
specifications, drawings, blueprints, diagrams, models, prototypes, samples,
flow charts, data, computer data, disks, diskettes, tapes, computer programs or
other software, marketing plans, customer names, communications by or to
attorneys (including attorney-client privileged communications), memos and
other materials prepared by attorneys or under their direction (including
attorney work product), and other technical, financial, employee or business
information or data.
"Information Statement" has the meaning given in Section 3.3.
"Insurance Proceeds" means those monies:
(i) received by an insured from an insurance carrier; or
(ii) paid by an insurance carrier on behalf of the insured;
in any such case net of any applicable premium adjustments (including reserves
and retrospectively rated premium adjustments) and net of any costs or expenses
incurred in the collection thereof.
"IRS" means the United States Internal Revenue Service.
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"Liabilities" means any and all losses, claims, charges, debts, demands,
actions, causes of action, suits, damages, obligations, payments, costs and
expenses, sums of money, accounts, reckonings, bonds, specialties, indemnities
and similar obligations, exonerations, covenants, contracts, controversies,
agreements, promises, doings, omissions, variances, guarantees, make whole
agreements and similar obligations, and other liabilities, including all
contractual obligations, whether absolute or contingent, matured or unmatured,
liquidated or unliquidated, accrued or unaccrued, known or unknown, whenever
arising, and including those arising under any law, rule, regulation, Action,
threatened or contemplated Action (including the costs and expenses of demands,
assessments, judgments, settlements and compromises relating thereto and
attorneys' fees and any and all costs and expenses, whatsoever reasonably
incurred in investigating, preparing or defending against any such Actions or
threatened or contemplated Actions), order or consent decree of any
Governmental Authority or any award of any arbitrator or mediator of any kind,
and those arising under any contract, commitment or undertaking, including
those arising under this Agreement or any Ancillary Agreement, in each case,
whether or not recorded or reflected or required to be recorded or reflected on
the books and records or financial statements of any Person.
"Licensing Business" means the business of developing and licensing designs
for programmable digital signal processor cores, including, without limitation,
digital signal processing cores used as the central processor in semiconductor
chips for specific applications.
"Licensing Business Assets" means all of DSPGL's and DSPGI's right, title
and interest in and to the following assets (all as defined in the Technology
Transfer Agreements, to the extent not defined herein):
(a) the Transferable Licensing IP;
(b) the Other Transferable Assets;
(c) the Third Party Licenses;
(d) the Other Contracts; and
(e) the Employee Proprietary Information Agreements.
Licensing Business Assets shall not include any accounts receivables or any
other current assets. Corage Assumed Liabilities shall not include any accounts
payable or any other current liabilities or any intercompany indebtedness of
the Licensing Business.
"Licensing Business Employees" means the employees set forth on Schedule A
attached hereto.
"Non-Assigned Assets" has the meaning set forth in Section 2.3.
"Non-Transferable Employee" shall have the meaning set forth in Section
2.6(b).
"Person" means an individual, a general or limited partnership, a
corporation, a trust, a joint venture, an unincorporated organization, a
limited liability entity, any other entity and any Governmental Authority.
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"Post-Distribution DSPGI Adjusted Option" means an DSPGI Adjusted Option
that vests after the Distribution Date.
"Pre-Distribution DSPGI Adjusted Option" means a DSPGI Adjusted Option that
vested on or before the Distribution Date.
"Prime Rate" means the rate which Citibank, N.A. (or any successor thereto
or other major money center commercial bank agreed to by DSPGI and Ceva, Inc. )
announces from time to time as its prime lending rate, as in effect from time
to time.
"Products Business" means the business of designing, manufacturing and
marketing high performance digital signal processing integrated circuit devices
for integrated digital cordless telephones and voice-over broadband products.
"Proposed Acquisition Transaction" means a transaction or series of
transactions as a result of which any Person or any group of related Persons
would (directly or indirectly) acquire, or have the right to acquire, (A) from
Ceva, Inc. or one or more holders of outstanding shares of Ceva, Inc. capital
stock, any shares of Ceva, Inc. capital stock or (B) from Ceva, Inc. or from
any Ceva, Inc. Subsidiary any shares of capital stock of a Ceva, Inc.
Subsidiary; except that none of the following shall be a Proposed Acquisition
Transaction: (i) any transaction, whether having occurred prior to the
Distribution or to occur after the Distribution, that the IRS rules in the Tax
Rulings is not part of a plan or series of transactions related to the
Distribution; (ii) the transactions contemplated by the Combination Agreement
and any transactions that reasonably flow from the transactions contemplated by
the Combination Agreement; (iii) the grant of stock options by Ceva, Inc. to
any employee, independent contractor or director of the Ceva, Inc. Group which
grant, based on the unqualified opinion of Hale and Dorr LLP or other Ceva,
Inc. Tax Advisor acceptable to DSPGI, whose approval shall not be unreasonably
withheld, would not under Section 355(e) of the Code and then-applicable
Treasury Regulations be considered part of a plan or series of transactions
related to the Distribution; (iv) the issuance of stock by Ceva, Inc. or its
Subsidiaries to any employee, independent contractor or director of the Ceva,
Inc. Group (including the issuance of stock upon the exercise of a stock
option) which issuance, based on the unqualified opinion of Hale and Dorr LLP
or other Ceva, Inc. Tax Advisor acceptable to DSPGI, whose approval shall not
be unreasonably withheld, would not under Section 355(e) of the Code and
then-applicable Treasury Regulations be considered part of a plan or series of
transactions related to the Distribution; or (v) any other transactions
specifically permitted by then-applicable Treasury Regulations promulgated
under Section 355(e) of the Code and to which DSPGI has consented in its
discretion, which discretion shall be exercised in good faith solely to
preserve the Tax-Free Status of the Separation and Distribution.
"Record Date" means the close of business on the date to be determined by
the DSPGI Board of Directors as the record date for determining stockholders of
DSPGI entitled to receive shares of Ceva, Inc. Common Stock in the Distribution.
"Representation Date" means any date on which Ceva, Inc. makes any
representation (i) to the IRS or a Tax Advisor for the purpose of obtaining a
Subsequent Tax Opinion/Ruling, or (ii) to DSPGI for the purpose of any
determination required to be made by DSPGI pursuant to Section 4.2.
"Representation Letters" means any representation letters and any other
materials (including, without limitation, the ruling request and the related
supplemental submissions to the IRS) delivered or deliverable by DSPGI or Ceva,
Inc., as the case may be, in connection with the then
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issuance by the IRS of the Tax Rulings, or the rendering by a Tax Advisor
and/or the issuance by the IRS of the Subsequent Tax Opinion/Ruling.
"Securities Act" means the Securities Act of 1933, as amended, together with
the rules and regulations promulgated thereunder.
"Separation" has the meaning given in the Recitals.
"Separation Closing" has the meaning given in Section 2.1.
"Subsequent Tax Opinion/Ruling" means either (i) any unqualified opinion of
a Tax Advisor selected by Ceva, Inc. with the consent of DSPGI, which consent
shall not be unreasonably withheld, confirming, in form and substance
satisfactory to each of Ceva, Inc. and DSPGI in its discretion, which
discretion shall be exercised in good faith solely to preserve the Tax-Free
Status of the Separation and Distribution, that, as a consequence of the
consummation of a subsequent transaction, no income, gain or loss for U.S.
federal income tax purposes will be recognized by DSPGI, the stockholders or
former stockholders of DSPGI, or any DSPGI Affiliate with respect to the
Distribution, or (ii) an IRS private letter ruling to the same effect.
"Subsidiary" of any Person means any corporation or other organization
whether incorporated or unincorporated of which at least a majority of the
securities or interests having by the terms thereof ordinary voting power to
elect at least a majority of the board of directors or others performing
similar functions with respect to such corporation or other organization is
directly or indirectly owned or controlled by such Person or by any one or more
of its Subsidiaries, or by such Person and one or more of its Subsidiaries;
provided, however, that no Person that is not directly or indirectly wholly
owned by any other Person shall be a Subsidiary of such other Person unless
such other Person controls, or has the right, power or ability to control, that
Person.
"Tax Advisor" means the nationally recognized professional law firm or
accounting firm designated by DSPGI or Ceva, Inc., as applicable, as its Tax
Advisor.
"Tax-Free Status of the Separation and Distribution" means the
nonrecognition of taxable gain or loss for U.S. federal income tax purposes and
for Israeli tax purposes to DSPGI, DSPGI Affiliates and DSPGI's stockholders in
connection with the Separation and the Distribution.
"Tax Indemnification Agreement" means the Tax Indemnification and Allocation
Agreement dated as of the date of this Agreement between DSPGI and Ceva, Inc.
"Tax-Related Losses" means (i) all U.S. federal, state, local and foreign
income taxes (including interest and penalties thereon) imposed pursuant to any
settlement, final determination, judgment or otherwise, and (ii) all legal,
accounting and other professional fees and court costs incurred in connection
with such taxes.
"Tax Rulings" means any rulings by the IRS deliverable to DSPGI in
connection with the Separation and the Distribution.
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"Technology Transfer Agreements" means the Corage, Ltd. Technology Transfer
Agreement and the Ceva, Inc. Technology Transfer Agreement.
"Third Party Claim" has the meaning given in Section 5.5(a).
"Transferable Employees" shall have the meaning set forth in Section 2.6(a).
"Transferring Entities" shall mean DSPGI and all of its Affiliates
immediately prior to the Effective Date, other than DSP Group Ltd., Corage,
Ltd., Ceva, Inc. and their Subsidiaries.
ARTICLE II
THE SEPARATION
2.1. Separation Closing. Consummation of the Separation (the "Separation
Closing") shall take place on the Distribution Date but in any event prior to
the Combination Effective Date, at such time and place as may be determined by
the Board of Directors of DSPGI. All actions constituting the Separation shall
be occur and be deemed to have occurred on and as of the Distribution Date,
effective immediately prior to the Distribution becoming effective.
2.2. Actions to be Taken at Separation Closing. At Separation Closing, the
parties shall take the actions described below in this Section 2.2, in the
following order:
(a) DSPGL and Corage, Ltd. shall execute and deliver a Technology
Transfer Agreement substantially in the form attached as Exhibit 2.2(a) (the
"Corage, Ltd. Technology Transfer Agreement") and such other instruments of
conveyance as Corage, Ltd. may reasonably request;
(b) Corage, Ltd. shall issue to DSPGL, free and clear of all liens and
encumbrances, certificates representing 1,000 shares of Corage, Ltd. common
stock, $.001 per share par value, as consideration for the transfer of
Licensing Business Assets as provided in this Agreement, the Corage, Ltd.
Technology Transfer Agreement and other related documents;
(c) DSPGL shall distribute to DSPGI all of the issued and outstanding
shares of Corage, Ltd. capital stock, free and clear of all liens and
encumbrances, by delivery to DSPGI of the original certificate or
certificates therefor (the "Corage, Ltd. Stock Certificates"), together with
stock powers executed in blank (the "Corage, Ltd. Stock Powers");
(d) DSPGI shall contribute to Ceva, Inc. all of the issued and
outstanding shares of Corage, Ltd. capital stock, by delivery to Ceva, Inc.
of the Corage, Ltd. Stock Certificates and the Corage, Ltd. Stock Powers;
(e) DSPGI and Ceva, Inc. shall execute and deliver a Technology Transfer
Agreement substantially in the form attached as Exhibit 2.2(e) (the "Ceva,
Inc. Technology Transfer Agreement") and such other instruments of
conveyance as Ceva, Inc. may reasonably request;
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(f) Ceva, Inc. shall issue to DSPGI, free and clear of all liens and
encumbrances, certificates representing 1,000 shares of Ceva, Inc. Common
Stock as consideration for the transfer of Licensing Business Assets as
provided in this Agreement, the Ceva, Inc. Technology Transfer Agreement and
other related documents and the contribution of capital stock of Ceva, Inc.;
(g) Ceva, Inc. and DSP Ceva shall execute and deliver a Technology
Transfer Assignment and Assumption Agreement substantially in the form
attached as Exhibit 2.2(g) and such other instruments of conveyance as DSP
Ceva may reasonably request;
(h) Ceva, Inc. shall contribute to DSP Ceva all of this issued and
outstanding shares of Corage, Ltd. capital stock, by delivery to DSP Ceva of
the Corage, Ltd. Stock Certificates and the Corage, Ltd. Stock Powers;
(i) DSP Ceva shall issue to Ceva, Inc., free and clear of all liens and
encumbrances, certificates representing 1,000 shares of DSP Ceva common
stock, $1.00 per share par value, as consideration for the transfer of
Licensing Business Assets as provided in this Agreement, the DSP Ceva
Technology Transfer Agreement and other related documents;
(j) DSPGI, Ceva, Inc. and DSP Ceva shall execute and deliver a Transition
Services Agreement in a form to be mutually agreed upon by the parties;
(k) DSPGL, Corage, Ltd., DSP Japan and DSP Europe shall execute and
deliver a Transition Services Agreement in a form to be mutually agreed upon
by the parties;
(l) DSPGI and DSPGL shall amend the Intercompany Services Agreement
between them dated July 1, 1998, and Section 3.2 of the Cost Sharing
Agreement, as necessary to delete or modify provisions that relate to the
Licensing Business;
(m) each of the parties shall deliver to the other a certificate
substantially in the form attached as Exhibit 2.2(m), executed by one of its
executive officers;
(n) each of the parties shall deliver to the other a certificate
substantially in the form attached as Exhibit 2.2(n), executed by its
secretary, with true and correct copies of the attachments required thereby;
and
(o) each of the parties issuing or receiving shares of capital stock of
any of the other companies pursuant to this Section shall execute and
deliver cross-receipts evidencing their issuance or transfer and receipt of
shares of such shares of capital stock;
and at any time, and from time to time, after the Distribution Date, at the
request of Ceva, Inc. and without further consideration, DSPGI shall promptly
execute and deliver (or shall cause its appropriate Subsidiary to execute and
deliver) such instruments of sale, transfer, conveyance, assignment and
confirmation as Ceva, Inc. may reasonably request, and take any and all such
other action as Ceva, Inc. may reasonably request more effectively to transfer,
convey and assign to Ceva, Inc. (or a Subsidiary of Ceva, Inc.) and to confirm
Ceva, Inc.'s or a Subsidiary of Ceva, Inc.'s title to all of the Licensing
Business Assets and all of the outstanding shares of capital stock of Corage,
Ltd. and to put Ceva, Inc. in actual possession and operating control (through
its
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ownership of the outstanding capital stock of Corage, Ltd., the Licensing
Business Assets) of the Licensing Business Assets.
2.3. Consents. Schedule 2.3 lists all of the Consents. Each party hereto
shall use commercially reasonable efforts to obtain, at its expense, all of the
Consents. If any Consent shall not have been obtained by the Distribution Date,
this Agreement and the Ancillary Agreements shall not constitute an assignment
of the agreement, right or other Licensing Business Asset to which it relates
(each a "Non-Assigned Asset") unless and until such time as such Consent has
been obtained. Following Separation Closing, DSPGI and Ceva, Inc. each shall
(or shall cause their Subsidiaries to) use commercially reasonable efforts to
obtain all such Consents as soon as practicable. Upon any such Consent being
obtained, the Non-Assigned Assets to which it relates automatically shall be
deemed to have been assigned as contemplated by the relevant Ancillary
Agreements.
2.4. Working Capital; Prorations of Certain Items. As of the Combination
Effective Date, the working capital of the Licensing Business calculated as the
excess of the current assets of the Licensing Business over the current
liabilities of the Licensing Business as of the Combination Effective Date
(excluding the contribution of U.S.$40 million to Ceva, Inc. as contemplated by
Section 3.2(e) of this Agreement), each determined on a basis consistent with
the determination of current assets and current liabilities on the Corage
Balance Sheet, shall be not less than zero. For purposes of this section,
working capital shall not include any Taxes, as such term is defined in the
Combination Agreement. The Parties further agree, that all accrued or prepaid
income and accrued or prepaid expenses relating to the License Business, each
as determined in accordance with U.S. generally accepted accounting principles
consistently applied and included in the working capital, shall be
appropriately allocated under U.S. generally accepted accounting principles for
periods before and after the Combination Effective Date, and the Parties shall
agree to settle the amounts thereof not more than sixty days following the
Combination Effective Date.
2.5. Assumption of Corage Assumed Liabilities. After the Distribution Date,
Ceva, Inc. shall assume, pay, discharge and perform in accordance with their
terms the following (the "Corage Assumed Liabilities"): (i) any and all
Liabilities that are expressly contemplated by this Agreement or any agreement
or document contemplated by, or executed and delivered pursuant to, this
Agreement (including but not limited to the Ancillary Agreements) as
Liabilities to be assumed by any member of the Ceva, Inc. Group; (ii) all
Liabilities, including Liabilities related to Corage Employees and product
Liabilities, payable under or pursuant to, relating to, arising out of or
resulting from (a) the operation of the Licensing Business, as conducted at any
time prior to, on or after the Distribution Date, or (b) the Licensing Business
Assets; (iii) all Liabilities, reflected on the Corage Balance Sheet, subject
to the discharge of such Liabilities subsequent to the date of the Corage
Balance Sheet; and (iv) all Liabilities of the DSPGI Group arising or assumed
after the date of the Corage Balance Sheet which are of a nature or type that
would have resulted in such Liabilities being included as Liabilities on the
Corage Balance Sheet had they arisen or been assumed on or before the date of
the Corage Balance Sheet, determined on a basis consistent with the
determination of the Liabilities of the Licensing Business on the Corage
Balance Sheet. Notwithstanding anything to the contrary in this Agreement, the
Corage Assumed Liabilities excludes all Taxes (as defined in the Combination
Agreement) except as provided in Article IV of this Agreement or in the Tax
Indemnification Agreement.
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2.6. Transfer of Employees.
(a) Prior to the Separation Closing, DSPGI, on behalf of itself and the
Transferring Entities, will transfer or release to Ceva, Inc. the employees of
its licensing division described on Schedule 2.6(a) to this Agreement
("Transferable Employees"), and Ceva, Inc. shall accept such transfer and
assume (and shall pay, perform and discharge when due) all obligations with
respect to such employees accruing from and after the Separation Closing.
(b) To the extent that any Transferable Employees shall have entered into
assignable employment contracts with DSPGI, DSPGI shall assign, and shall cause
other Transferring Entities to assign, all of the rights of the Transferring
Entities under any such employment contracts to Ceva, Inc., to the extent such
rights are assignable. For any Transferable Employee without an assignable
employment contract ("Non-Transferable Employee"), DSPGI shall fully release,
and shall cause other Transferring Entities to fully release, such employee
from employment, thereby allowing Ceva, Inc., to use its best efforts to employ
such Non-Transferable Employee.
(c) Prior to the Separation Closing, DSPGI, on behalf of itself and the
Transferring Entities, shall transfer and assign to Ceva, Inc., and Ceva, Inc.
shall accept such transfer and assume, all of the rights and obligations of the
Transferring Entities under all agreements entered into by the Transferable
Employees and the Licensing Business Employees with the Transferring Entities,
or any of them, relating to confidentiality, assignment of inventions and
similar matters ("Employee Proprietary Information Agreements"), which
agreements shall remain in full force and effect in accordance with their
terms, provided that DSPGI shall retain its rights under the Employee
Proprietary Information Agreements to the extent required to bring actions (at
law, in equity or otherwise) for any breach of such Employee Proprietary
Information Agreements relating to acts or omissions prior to the Separation
Closing by Transferable Employees who become employees of Ceva, Inc. The
Parties shall reasonably cooperate in connection with any action against any of
the Transferable Employees.
ARTICLE III
THE DISTRIBUTION
3.1. The Distribution. Subject to Section 3.4, DPSGI shall effect the
Distribution on the Distribution Date, as described in this Article III.
(a) Subject to Section 3.4, on or prior to the Distribution Date, DSPGI
shall deliver to the Agent for the benefit of holders of record of DSPGI Common
Stock on the Record Date, a single stock certificate, endorsed by DSPGI in
blank, representing all of the outstanding shares of Ceva, Inc. Common Stock,
and shall cause the transfer agent for the shares of DSPGI Common Stock to
instruct the Agent to distribute on the Distribution Date the appropriate
number of such shares of Ceva, Inc. Common Stock to each such holder or
designated transferee or transferees of such holder.
(b) Subject to Section 3.5, each holder of DSPGI Common Stock on the Record
Date (or such holder's designated transferee or transferees) shall be entitled
to receive in the Distribution a number of shares of Ceva, Inc. Common Stock
equal to the number of shares
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of DSPGI Common Stock held by such holder on the Record Date multiplied by a
fraction, the numerator of which is the number of shares of Ceva, Inc. Common
Stock beneficially owned by DSPGI on the Record Date, and the denominator of
which is the number of shares of DSPGI Common Stock outstanding on the Record
Date.
(c) Ceva, Inc. and DSPGI, as the case may be, shall provide to the Agent all
share certificates and any information required in order to complete the
Distribution on the basis specified above.
3.2. Actions Prior to the Distribution.
(a) DSPGI and Ceva, Inc. shall mail, prior to the date determined by the
Board of Directors of DSPGI as the record date, to the holders of common stock
of DSPGI, the Information Statement and such other information concerning Ceva,
Inc., its business, operations and management, the Separation, the
Distribution, and such other matters as DSPGI and Ceva, Inc. shall reasonably
determine and as may be required by law.
(b) DSPGI and Ceva, Inc. shall prepare and file with the appropriate
Governmental Authority any documents or statements which are required to
reflect the establishment of, or amendments to, any employee benefit and other
plans necessary or appropriate in connection with the Separation and
Distribution.
(c) DSPGI and Ceva, Inc. shall take all such action as may be necessary or
appropriate under the securities or Blue Sky laws of the United States (and any
comparable laws under any foreign jurisdiction) in connection with the
Distribution.
(d) DSPGI and Ceva, Inc. shall take all reasonable steps necessary and
appropriate to cause the conditions set forth in Section 3.4 (subject to
Sections 3.5(d)) to be satisfied and to effect the Distribution on the
Distribution Date.
(e) Immediately prior to effecting the Distribution, DSPGI shall contribute
to Ceva, Inc., in immediately available funds, U.S. $40 million; it being
acknowledged by the Parties that, in accordance with Section 8.3 of the
Combination Agreement, Ceva, Inc. will bear U.S.$2.0 million of the transaction
fees and expenses.
3.3. Form 10. DSPGI and Ceva, Inc. shall prepare and file with the
Commission the General Form for Registration of Securities on Form 10,
including the Information Statement describing the Distribution and information
concerning the business, operations and financial information of Ceva, Inc. to
be distributed to the stockholders of DSPGI (the "Information Statement"),
pursuant to which all the outstanding shares of common stock of Ceva, Inc. as
of the Distribution Date will be registered under the Securities Exchange Act
of 1934, as amended, (together with all amendments thereto, the "Form 10").
Each of DSPGI and Ceva, Inc. shall respond to any comments of the Commission
and use such commercially reasonable efforts as may be necessary in order to
cause the Form 10 to become and remain effective as required by law, including,
but not limited to, filing such amendments to the Form 10 as may be required by
the Commission or applicable securities laws. The Form 10 shall have become
effective on or prior to the Distribution Date, and there shall be no
stop-order in effect with respect thereto. DSPGI and Ceva, Inc. shall take such
other actions and make any other filings as may be
14
necessary or appropriate under the securities or blue sky laws of the United
States or any other relevant jurisdiction in connection with the Distribution;
and, with respect to any such actions and filings, where applicable, shall use
commercially reasonable effort to have such filings become effective or
accepted.
3.4. Conditions to Distribution. The obligation of DSPGI to effect the
Distribution is subject to the satisfaction at or prior to the Distribution
Date of the following conditions:
(a) DSPGI and Ceva, Inc. shall have fulfilled these conditions set forth
in Section 6.2(a) of the Combination Agreement;
(b) all Governmental Approvals necessary to consummate the Distribution
shall have been obtained and be in full force and effect;
(c) DSPGI and Ceva, Inc. shall have fulfilled the conditions set forth in
Section 7.4(c) of the Combination Agreement;
(d) no order, injunction or decree issued by any court or agency of
competent jurisdiction or other legal restraint or prohibition preventing
the consummation of the Distribution shall be in effect and no other event
outside the control of DSPGI shall have occurred or failed to occur that
prevents the consummation of the Distribution;
(e) the Combination Agreement shall not have been terminated, and all
conditions to the obligations of the parties thereunder to consummate the
Combination shall have been satisfied or waived, except only the
consummation of the Distribution; and
(f) each of the Licensing Business Employees shall be Corage Employees.
3.5. Fractional Shares. No fractional shares of Ceva, Inc. Common Stock
shall be issued in connection with the Distribution. Any fractional interest
shall be aggregated and sold by Ceva's transfer agent, with the cash due to
each stockholder for such fraction issued to any holder of record or beneficial
owner of DSPGI Common Stock as of the Record Date that has such fractional
share interest, or such other procedure as the parties may agree.
3.6. The Ceva, Inc. Board of Directors. DSPGI and Ceva, Inc. each shall take
all actions which may be required to elect or otherwise appoint as directors of
Ceva, Inc., on or prior to the Distribution Date, such individuals as may be
designated by Ceva, Inc. Board of Directors (which designation shall be
approved by the majority of Ceva, Inc.'s directors who are at such time neither
officers nor directors of DSPGI) as additional or substitute members of the
Board of Directors of Ceva, Inc. on the Distribution Date.
3.7. Adjustment of DSPGI Stock Options.
(a) Each outstanding option to purchase DSPGI Common Stock granted prior to
the Distribution Date and held by Corage Employees (each a "DSPGI Option")
shall be adjusted as set forth in this Section 3.7. Each DSPGI Option shall be
converted as of the Distribution Date, into two options: an option (a "DSPGI
Adjusted Option") to purchase the same number of shares of DSPGI Common Stock
covered by the DSPGI Option and as to which the DSPGI Option has not been
exercised as of the Distribution Date ("DSPGI Option Number")
15
and an option (a "Ceva, Inc. Option") to purchase a number of shares of Ceva,
Inc. Common Stock equal to the DSPGI Option Number times a fraction, the
numerator of which is the total number of shares of Ceva, Inc. Common Stock
distributed to DSPGI stockholders in the Distribution and the denominator of
which is the total number of shares of DSPGI Common Stock outstanding on the
record date for the Distribution (the "Distribution Ratio"). The terms of the
DSPGI Adjusted Option and the Ceva, Inc. Option (other than the exercise price
and the number of shares) shall be substantially the same as the DSPGI Option
from which they were converted. If and to the extent the vesting of any DSPGI
Option is subject to vesting based on the continuous employment of the holder
thereof with DSPGI or its Subsidiaries, the vesting of the DSPGI Adjusted
Option and Ceva, Inc. Option into which it is converted shall be subject to the
same vesting schedule and continuation of the holder's employment with Ceva,
Inc. or its Subsidiaries, giving credit for continuous employment with DSPGI or
Ceva, Inc. or their respective Subsidiaries, prior to the Distribution Date.
The exercise prices per share for each DSPGI Adjusted Option and the Ceva, Inc.
Option shall be established in a manner so that: (1) the aggregate "intrinsic
value" (i.e. the market value of the stock underlying the option, less the
exercise price of such option, multiplied by the number of shares then covered
by such option) after the Distribution of the DSPGI Adjusted Option plus the
Ceva, Inc. Option is not greater than the intrinsic value of the related DSPGI
Option immediately prior to the Distribution; and (2) the ratio of the exercise
price per option to the market value per share after the Distribution is not
lower than the ratio of the exercise price of the DSPGI Option to the market
value per share of DSPGI Common Stock immediately prior to the Distribution.
The determination of the exercise prices for each DSPGI Adjusted Option and
Ceva, Inc. Option shall be made by DSPGI as advised by its professional
advisors. The exercise prices for each DSPGI Adjusted Option and Ceva, Inc.
Option shall be determined as follows:
(i) Calculate the aggregate intrinsic value of the DSPGI Option
immediately prior to the Distribution and determine the ratio of the
exercise price for the DSPGI Option to the market value of DSPGI Common
Stock immediately prior to the Distribution (the "Pre-Distribution Exercise
Price to Market Price Ratio").
(ii) Calculate the preliminary DSPGI Adjusted Option exercise price by
dividing (x) the market value of DSPGI Common Stock (without Ceva, Inc.)
immediately after the Distribution by (y) the sum of (1) the market value of
DSPGI Common Stock immediately after the Distribution and (2) the market
value of Ceva, Inc. Common Stock immediately after the Distribution
multiplied by the Distribution Ratio, and multiplying the result by the
exercise price for the DSPGI Option.
(iii) Divide the preliminary DSPGI Adjusted Option exercise price by the
market value of DSPGI Common Stock immediately after the Distribution to
determine the "DSPGI Adjusted Exercise Price to Market Price Ratio." If the
DSPGI Adjusted Exercise Price to Market Price Ratio is less than the
Pre-Distribution Exercise Price to Market Price Ratio, increase the
preliminary DSPGI Adjusted Option exercise price to align the DSPGI Adjusted
Exercise Price to Market Ratio with the Pre-Distribution Exercise Price to
Market Price Ratio in order to determine the final Adjusted DSPGI Option
exercise price.
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(iv) Calculate the preliminary Ceva, Inc. Option exercise price by
multiplying the DSPGI Option exercise price by the result obtained by
dividing (1) one minus the fraction calculated in paragraph (ii) above by
(2) the Distribution Ratio.
(v) Divide the preliminary Ceva, Inc. Option exercise price by the market
value of Ceva, Inc. Common Stock immediately before the Distribution to
determine the "Ceva, Inc. Adjusted Exercise Price to Market Price Ratio." If
the Ceva, Inc. Adjusted Exercise Price to Market Ratio is less than the
Pre-Distribution Exercise Price to Market Price Ratio, increase the
preliminary Ceva, Inc. Option exercise price to align the Ceva, Inc.
Adjusted Exercise Price to Market Price Ratio with the Pre-Distribution
Exercise Price to Market Price Ratio in order to determine the final Ceva,
Inc. Option exercise price.
(vi) Finally, add the aggregate intrinsic values of the DSPGI Adjusted
Option and Ceva, Inc. Option and compare the sum to the aggregate intrinsic
value calculated in paragraph (i) above and make final adjustments, if
necessary, so that the aggregate intrinsic values of the DSPGI Adjusted
Option and Ceva, Inc. Option do not exceed the original aggregate intrinsic
value of the DSPGI Option.
(b) The Ceva, Inc. Options to be granted with respect to each Adjusted
Option shall be issued under Ceva, Inc.'s 2000 Stock Incentive Plan, and Ceva,
Inc. shall take all corporate action and make all required filings under
applicable state Blue Sky laws and the Securities Act to (i) issue the Ceva,
Inc. Options required under this Section 3.7 and (ii) to register or qualify
the Ceva, Inc. Options and/or the underlying shares of Ceva, Inc. Common Stock
so that the shares of Ceva, Inc. Common Stock acquired upon exercise of each
Ceva, Inc. Option are freely tradable under the Securities Act (except for
shares acquired by Affiliates of Ceva, Inc.) and each applicable state's Blue
Sky laws.
(c) Each outstanding DSPGI Option granted prior to the Distribution Date and
not described in Section 3.7(a) (a "DSPGI Legacy Option") shall be adjusted as
set forth in this Section 3.7(c). As of the Distribution Date, the exercise
price and, if appropriate, the number of shares subject to each DSPGI Legacy
Option shall be adjusted to reflect the reduction in value of DSPGI Common
Stock as a result of the Distribution. The exercise price per share and, if
appropriate, the number of shares subject to each DSPGI Legacy Option shall be
adjusted in a manner so that: (1) the aggregate "intrinsic value" (i.e. the
market value of the stock underlying the option, less the exercise price of
such option, multiplied by the number of shares then covered by such option)
after the Distribution is not greater than the intrinsic value of the DSPGI
Option immediately prior to the Distribution; and (2) the ratio of the exercise
price of the DSPGI Legacy Option to the market value per share of DSPGI Common
Stock after the Distribution is not lower than the ratio of the exercise price
of the DSPGI Option to the market value per share of DSPGI Common Stock
immediately prior to the Distribution. The determination of the exercise price
and the number of shares subject to each DSPGI Legacy Option shall be made by
DSPGI as advised by its professional advisors.
(d) Notwithstanding anything herein or in the Ancillary Agreements to the
contrary and the to extent permitted by applicable law:
17
(i) All compensation deductions attributable to the amounts included in
the gross income of a Corage Employee as a result of the exercise of a
Pre-Distribution DSPGI Adjusted Option shall be allocated to and claimed by
the DSPGI Group, and the Ceva, Inc. Group shall not report such deductions
on its Income Tax Returns.
(ii) All compensation deductions attributable to the amounts included in
the gross income of a Corage Employee as a result of the exercise of a
Post-Distribution DSPGI Adjusted Option shall be allocated to and claimed by
the Ceva, Inc. Group, and the DSPGI Group shall not report such deductions
on its Income Tax Returns.
(iii) To the extent that a Corage Employee exercises DSPGI Adjusted
Options and such options are included in an Award some of which are
Pre-Distribution DSPGI Adjusted Options and others of which are
Post-Distribution DSPGI Adjusted Options, for purposes of this Agreement,
all of the Pre-Distribution DSPGI Adjusted Options shall be deemed to have
been exercised before any of the Post-Distribution DSPGI Adjusted Options
are treated as having been exercised.
(iv) All compensation deductions attributable to the amounts included in
the gross income of a Corage Employee as a result of the exercise of a Ceva,
Inc. Option after the Distribution Date shall be allocated to and claimed by
the Ceva, Inc. Group, and the DSPGI Group shall not report such deductions
on its Income Tax Returns.
(e) Notwithstanding anything herein or in the Ancillary Agreements to the
contrary, Ceva, Inc. shall be responsible for any payroll taxes and withholding
taxes arising out of the exercise of a DSPGI Adjusted Option or a Ceva, Inc.
Option by a Corage Employee. DSPGI Group shall provide the Ceva, Inc. Group
with any information necessary to make such withholdings and shall collect any
required withholdings upon the exercise of a DSPGI Adjusted Option (and shall
not permit the exercise of any such option unless the optionee has made
provisions for such withholding tax) and remit such withholding tax to the
Ceva, Inc. Group.
(f) Notwithstanding anything herein to the contrary, Section 3.7 of this
Agreement shall terminate upon the publication of Definitive Guidance which the
tax advisors for DSPGI and Ceva, Inc. mutually agree is contrary to the
provisions of this Section 3.7, and nothing contained herein shall preclude
DSPGI and Ceva, Inc. after such termination of this Section 3.7, from filing
amended returns or refund claims with respect to exercise of options prior to
the termination of this Section 3.7 in accordance with such Definitive Guidance.
ARTICLE IV
CERTAIN TAX MATTERS
4.1. Representations and Warranties.
(a) DSPGI. DSPGI hereby represents and warrants that any facts presented or
representations made in the Tax Rulings or the Representation Letters are true,
correct and complete solely to the extent arising out of any information
provided by or on behalf of DSPGI or, if made before the Distribution Date,
Ceva, Inc.
18
(b) Ceva, Inc. Ceva, Inc. hereby represents and warrants that any facts
presented or representations made in the Tax Rulings or the Representation
Letters are true, correct and complete solely to the extent arising out of any
information provided by or on behalf of Parthus Technologies plc, or if made
after the Distribution Date, by or on behalf of Ceva, Inc.
4.2. Restrictions on Ceva, Inc.
(a) Until the first day after the one-year anniversary of the Distribution
Date, Ceva, Inc. shall not directly or indirectly enter into any agreement,
understanding, arrangement or substantial negotiations, as such terms are
defined in Treasury Regulation Section 1.355-7T(h)(1), regarding a Proposed
Acquisition Transaction or, to the extent Ceva, Inc. has the right to prohibit
any Proposed Acquisition Transaction, permit any Proposed Acquisition
Transaction to occur unless prior to the consummation of such Proposed
Acquisition Transaction DSPGI has determined, in its sole and absolute
discretion, which discretion shall be exercised in good faith solely to
preserve the Tax-Free Status of the Separation and Distribution, that such
Proposed Acquisition Transaction would not jeopardize the Tax-Free Status of
the Separation and Distribution. The foregoing shall not prohibit Ceva, Inc.
from entering into a contract or agreement to consummate any Proposed
Acquisition Transaction if such contract or agreement requires satisfaction of
the above-described requirement prior to the consummation of such Proposed
Acquisition Transaction, such requirement to be satisfied through the
cooperation of the parties as described in Section 4.3(b)(ii).
(b) Until the first day after the two-year anniversary of the Distribution
Date, (i) Ceva, Inc. shall continue to conduct the Active Trade or Business;
and (ii) Ceva, Inc. shall not (A) liquidate, dispose of, or otherwise
discontinue the conduct of all or a substantial portion (but in no instance
more than 60% of the gross assets of Ceva, Inc. or 60% of the consolidated
gross assets of the Ceva, Inc. Group) of the Active Trade or Business or (B)
dispose of any business or assets that would cause Ceva, Inc. to be operated in
a manner inconsistent in any material respect with the business purposes for
the Distribution as set forth in the Representation Letters and Tax Rulings, in
each case unless DSPGI has determined, in its sole and absolute discretion,
which discretion shall be exercised in good faith solely to preserve the
Tax-Free Status of the Separation and Distribution, that such liquidation,
disposition, or discontinuance would not jeopardize the Tax-Free Status of the
Separation and Distribution. Ceva, Inc. shall continue the active conduct of
the Active Trade or Business primarily through officers and employees of Ceva,
Inc. or its Subsidiaries (and not primarily through independent contractors).
Notwithstanding the foregoing, (A) except with respect to any corporation or
other entity the status of which as the direct owner of an active trade or
business is material to the Tax-Free Status of the Separation and Distribution,
liquidations of any of Ceva, Inc.'s Subsidiaries into Ceva, Inc. or one or more
Subsidiaries directly or indirectly controlled by Ceva, Inc. shall not be
deemed to breach this Section 4.2(b) and (B) Ceva, Inc. shall not be prohibited
from liquidating, disposing of or otherwise discontinuing the conduct of one or
more trades or businesses that constituted an immaterial part of the Active
Trade or Business, or any portion thereof. For purposes of the preceding
sentence and clause (b)(ii) above, asset retirements, sale-leaseback
arrangements and discontinuances of product lines within a trade or business
the active conduct of which is continued shall not be deemed a liquidation,
disposition or discontinuance of a trade or business or portion thereof. Solely
for purposes of this Section 4.2(b), Ceva, Inc. shall not be treated as
directly or indirectly controlling a Subsidiary unless Ceva, Inc. owns,
directly or
19
indirectly, shares of capital stock of such Subsidiary constituting (A) 80% or
more of the total combined voting power of all outstanding shares of voting
stock of such Subsidiary and (B) 80% or more of the total number of outstanding
shares of each class or series of capital stock of such Subsidiary other than
voting stock. The foregoing shall not prohibit Ceva, Inc. from entering into a
contract or agreement to consummate any transaction described in this paragraph
if such contract or agreement requires satisfaction of the above-described
requirements prior to the consummation of such transaction, such requirements
to be satisfied through the cooperation of the parties as described in Section
4.3(b)(ii).
(c) Prior to the Distribution Date, Ceva, Inc. shall fully discharge and
satisfy all of the then existing indebtedness owed by it or its Subsidiaries to
DSPGI or any DSPGI Affiliate (other than payables incurred in the ordinary
course of the business). From such date until the first day after the two-year
anniversary of the Distribution Date, Ceva, Inc. shall not, and shall not
permit any of its Subsidiaries to, create, incur, assume or allow to exist any
such indebtedness (other than payables incurred in the ordinary course of the
business) with DSPGI or any DSPGI Affiliate.
(d) Notwithstanding the foregoing, the provisions of Section 4.2 shall not
prohibit Ceva, Inc. from implementing any transaction upon which the IRS has
granted a favorable ruling in, or which is described in reasonable detail in,
the Tax Rulings or any Subsequent Tax Opinion/Ruling.
4.3. Cooperation and Other Covenants.
(a) Each of Ceva, Inc. and DSPGI shall furnish the other with a copy of any
ruling requests or other documents delivered to the IRS that relates to the
Distribution or that could otherwise be reasonably expected to have an impact
on the Tax-Free Status of the Separation and Distribution.
(b) (i) Each of Ceva, Inc. and DSPGI shall cooperate with the other and
shall take (or refrain from taking) all such actions as the other may
reasonably request in connection with obtaining any DSPGI determination
referred to in Section 4.2. Such cooperation shall include, without limitation,
providing any information, and/or representations, and/or Powers of Attorney
reasonably requested by Ceva, Inc. or DSPGI, as applicable to enable it (or its
Tax Advisor) to obtain and maintain any Subsequent Tax Opinion/Ruling that
would permit any action described in Section 4.2 to be taken by Ceva, Inc. or
Ceva, Inc., DSPGI or their respective Affiliates. From and after any
Representation Date in connection with obtaining any such determination or the
receipt of a Subsequent Tax Opinion/Ruling and until the first day after the
first anniversary of the date of such determination or receipt, neither party
shall take (nor shall it refrain from taking) any action that would have caused
such representation to be untrue unless the other party has determined, in its
sole and absolute discretion, which discretion shall be exercised in good faith
solely to preserve the Tax-Free Status of the Separation and Distribution, that
such action would not jeopardize the Tax-Free Status of the Separation and
Distribution.
(ii) In the event that Ceva, Inc. notifies DSPGI that it desires to take
one of the actions described in Section 4.2 and DSPGI concludes that such
action might
20
jeopardize the Tax-Free Status of the Separation and Distribution, Ceva, Inc.,
may seek a Subsequent Tax Opinion/Ruling that would permit Ceva, Inc. to take
the specified action, and DSPGI shall use commercially reasonable efforts to
assist Ceva, Inc. in obtaining such Subsequent Tax Opinion/Ruling; provided,
however, that the reasonable costs and expenses of obtaining any such
Subsequent Tax Opinion/Ruling shall be borne by Ceva, Inc.
(c) (i) Until all restrictions set forth in Section 4.2 have expired, Ceva,
Inc. shall give DSPGI written notice of any intention to effect or permit an
action or transaction described in Section 4.2 and which is prohibited
thereunder at such time within a period of time reasonably sufficient to enable
DSPGI to make the determination referred to in Section 4.2. Each such notice by
Ceva, Inc. shall set forth the terms and conditions of the proposed action or
transaction, including, without limitation, as applicable, the nature of any
related action proposed to be taken by the Board of Directors of Ceva, Inc.,
the approximate number of shares of Ceva, Inc. capital stock proposed to be
transferred or issued, the approximate value of Ceva, Inc.'s assets (or assets
of any of Ceva, Inc.'s Subsidiaries) proposed to be transferred, the proposed
timetable for such action or transaction, and the number of shares of Ceva,
Inc. capital stock otherwise then owned by the other party to the proposed
action or transaction, all with sufficient particularity to enable DSPGI to
make any such required determination. All information provided by Ceva, Inc. to
DSPGI pursuant to this Section 4.3 shall be deemed subject to the
confidentiality obligations of this Agreement.
(ii) Promptly, but in any event within ten business days, after DSPGI
receives such written notice from Ceva, Inc., DSPGI shall evaluate such
information and notify Ceva, Inc. in writing of (A) such determination or
(B) DSPGI's requirement that Ceva, Inc. obtain a Subsequent Tax
Opinion/Ruling prior to undertaking such action or transaction. If DSPGI
makes a determination that an action or transaction described in Section 4.2
would jeopardize the Tax-Free Status of the Separation and Distribution,
such notice to Ceva, Inc. shall set forth, in reasonable detail, the reasons
therefor. In the event that Ceva, Inc. does not receive written notice of
DSPGI's determination or requirement that Ceva, Inc. obtain a Subsequent Tax
Opinion/Ruling within ten business days after the notification by Ceva,
Inc., then DSPGI shall be deemed to have elected to require that Ceva, Inc.
obtain a Subsequent Tax Opinion/Ruling prior to undertaking such action or
transaction. Ceva, Inc. shall notify DSPGI promptly, but in any event within
ten business days, after the receipt of a Subsequent Tax Opinion/Ruling.
4.4. Indemnification For Tax Liabilities.
(a) (i) Notwithstanding any other provision of this Agreement to the
contrary, subject to Section 4.4(b), Ceva, Inc. shall indemnify, defend and
hold harmless DSPGI and each DSPGI Affiliate (or any successor to any of them)
against any and all Tax-Related Losses incurred by DSPGI or any of them in
connection with any proposed tax assessment or tax controversy with respect to
the Distribution or the Separation to the extent caused by any breach by Ceva,
Inc. of any of its representations, warranties or covenants made pursuant to
Article IV of this Agreement or in any Representation Letter issued by Ceva,
Inc. after the Combination Effective Date.
(ii) Notwithstanding any other provision of this Agreement to the
contrary, DSPGI shall indemnify, defend and hold harmless Ceva, Inc. and
each Ceva, Inc.
21
Affiliate (or any successor to any of them) against (A) any and all Tax-Related
Losses incurred by Ceva, Inc. or any of them in connection with any proposed
tax assessment or tax controversy with respect to the Distribution or the
Separation other than a Tax-Related Loss incurred by Ceva, Inc. as a result of
any breach by Ceva, Inc. of any of its representations, warranties or covenants
made pursuant to Article IV of this Agreement or in any Representation Letter
issued by Ceva, Inc. after the Combination Effective Date and (B) any sales and
use, gross receipts, or other similar transfer taxes imposed on the transfers
occurring pursuant to the Separation and Distribution.
(iii) All interest or penalties incurred in connection with any
Tax-Related Losses or any indemnification obligation under subsection
(ii)(B) above shall be computed for the time period up to and including the
date that the Indemnifying Party pays its indemnification obligation in full.
(b) The Indemnifying Party shall pay any amount due and payable to the
Indemnitee pursuant to this Section 4.4 on or before the 90th day following the
earlier of agreement or determination that such amount is due and payable to
the Indemnitee. All payments made pursuant to this Section 4.4 shall be made by
wire transfer to the bank account designated by the Indemnitee for such
purpose, and on the date of such wire transfer the Indemnifying Party shall
give the Indemnitee notice of the transfer.
4.5. Procedure For Indemnification For Tax Liabilities.
(a) If an Indemnitee receives notice of the assertion of any Third-Party
Claim with respect to which an Indemnifying Party may be obligated under
Section 4.4 to provide indemnification, the Indemnitee shall give the
Indemnifying Party notice thereof (together with a copy of such Third-Party
Claim, process or other legal pleading) promptly after becoming aware of such
Third-Party Claim; provided, however, that the failure of the Indemnitee to
give notice as provided in this Section shall not relieve the Indemnifying
Party of its obligations under Section 4.4, except to the extent that the
Indemnifying Party is actually prejudiced by such failure to give notice. Such
notice shall describe such Third-Party Claim in reasonable detail.
(b) DSPGI and Ceva, Inc. shall jointly control the defense of, and cooperate
with each other with respect to defending, any Third-Party Claim with respect
to which either party is obligated under Section 4.4 to provide
indemnification, provided that either party shall forfeit such joint control
right with respect to a particular Third-Party Claim if such party or any
Affiliate of such party makes any public statement or filing, or takes any
action (including, but not limited to, the filing of any submission or
pleading, or the giving of a deposition or production of documents, in any
administrative or court proceeding) in connection with such Third-Party Claim
that is inconsistent in a material respect with any representation or warranty
made by such party in this Agreement, the Tax Rulings, the Subsequent Tax
Opinion/Ruling or the Representation Letters.
(c) Ceva, Inc. and DSPGI shall exercise their rights to jointly control the
defense of any such Third-Party Claim solely for the purpose of defeating such
Third-Party Claim and, unless required by applicable law, neither Ceva, Inc.
nor DSPGI shall make any statements or take any actions that could reasonably
result in the shifting of liability for any Tax-
22
Related Losses arising out of such Third-Party Claim from the party making such
statement or taking such action (or any of its Affiliates) to the other party
(or any of its Affiliates).
(d) Statements made or actions taken by either Ceva, Inc. or DSPGI in
connection with the defense of any such Third-Party Claim shall not prejudice
the rights of such party in any subsequent action or proceeding between the
parties.
(e) If either DSPGI or Ceva, Inc. fails to jointly defend any such
Third-Party Claim, the other party shall solely defend such Third-Party Claim
and the party failing to jointly defend shall use commercially reasonable
efforts to cooperate with the other party in its defense of such Third-Party
Claim; provided, however, that an Indemnitee may not compromise or settle any
such Third-Party Claim without the prior written consent of the Indemnifying
Party, which consent shall not be unreasonably withheld or delayed. All costs
and expenses of either party incurred in connection with, and during the course
of, the joint control of the defense of any such Third-Party Claim shall be
initially paid by the party that incurs such costs and expenses. Such costs and
expenses shall be reallocated and reimbursed in accordance with the respective
indemnification obligations of the parties at the conclusion of the defense of
such Third-Party Claim.
4.6. Survival. The rights and obligations of each of DSPGI and Ceva, Inc.
and their respective Indemnitees under this Article IV shall survive until
thirty days following the expiration of the applicable statute of limitations.
4.7. Section 355(e) Notice. Promptly after the Combination Effective Date,
DSPGI shall file with the appropriate Internal Revenue Service Center a notice
under Section 355(e)(4)(E) of the Code substantially in the form of Exhibit A
to this Agreement.
ARTICLE V
INDEMNIFICATION
5.1. Release of Claims.
(a) Except as provided in Section 5.1(c), effective as of the Distribution
Date, Ceva, Inc. does hereby, for itself, its respective Affiliates (other than
any member of the DSPGI Group), successors and assigns, and all Persons who at
any time prior to the Distribution Date have been stockholders, directors,
officers, agents or employees of any member of the Ceva, Inc. Group (in each
case, in their respective capacities as such), remise, release and forever
discharge each of DSPGI, its respective Affiliates (other than any member of
the Ceva, Inc. Group), successors and assigns, and all Persons who at any time
prior to the Distribution Date have been stockholders, directors, officers,
agents or employees of DSPGI (in each case, in their respective capacities as
such), and their respective heirs, executors, administrators, successors and
assigns, from any and all Liabilities whatsoever, whether at law or in equity
(including any right of contribution), whether arising under any contract or
agreement, by operation of law or otherwise, existing or arising from all acts
and events occurring or failing to occur or alleged to have occurred or to have
failed to occur and all conditions existing or alleged to have existed on or
before the Distribution Date (including any contractual arrangements or
arrangements existing or alleged to exist between them on or before the
Distribution Date).
23
(b) Except as provided in Section 5.1(c), effective as of the Distribution
Date, DSPGI does hereby, for itself and its Affiliates (other than any member
of the Ceva, Inc. Group), successors and assigns, and all Persons who at any
time prior to the Distribution Date have been stockholders, directors,
officers, agents or employees of any member of the DSPGI Group (in each case,
in their respective capacities as such), remise, release and forever discharge
Ceva, Inc., the respective members of the Ceva, Inc. Group, their respective
Affiliates (other than any member of the DSPGI Group), successors and assigns,
and all Persons who at any time prior to the Distribution Date have been
stockholders, directors, officers, agents or employees of any member of the
Ceva, Inc. Group (in each case, in their respective capacities as such), and
their respective heirs, executors, administrators, successors and assigns, from
any and all Liabilities whatsoever, whether at law or in equity (including any
right of contribution), whether arising under any contract or agreement, by
operation of law or otherwise, existing or arising from all acts and events
occurring or failing to occur or alleged to have occurred or to have failed to
occur and all conditions existing or alleged to have existed on or before the
Distribution Date (including any contractual arrangements or arrangements
existing or alleged to exist between them on or before the Distribution Date).
(c) Nothing in Section 5.1(a) or (b) shall impair any right of any Person to
enforce this Agreement, any Ancillary Agreement, or the Tax Indemnification
Agreement. Nothing in Section 5.1(a) or (b) shall release any Person from:
(i) any Liability, contingent or otherwise, assumed, transferred,
assigned or allocated to the Group of which such Person is a member in
accordance with, or any other Liability of any member of any Group under,
this Agreement or any Ancillary Agreement;
(ii) any Liability that the parties may have with respect to
indemnification or contribution pursuant to this Agreement for claims
brought against the parties by third Persons, which Liability shall be
governed by the provisions of this Article V and Article VI and, if
applicable, the appropriate provisions of the Ancillary Agreements; or
(iii) any Liability the release of which would result in the release of
any Person other than a Person released pursuant to this Section 5.1;
provided, however, that the parties shall not bring suit or permit any of
their Subsidiaries to bring suit against any Person with respect to any
Liability to the extent that such Person would be released with respect to
such Liability by this Section 5.1 but for the provisions of this clause
(iii).
(d) Ceva, Inc. shall not make, and shall not permit any member of the Ceva,
Inc. Group to make, any claim or demand, or commence any Action asserting any
claim or demand, including any claim of contribution or any indemnification,
against DSPGI or any member of the DSPGI Group or any other Person released
pursuant to Section 5.1(a), with respect to any Liabilities released pursuant
to Section 5.1(a). DSPGI shall not, and shall not permit any member of the
DSPGI Group, to make any claim or demand, or commence any Action asserting any
claim or demand, including any claim of contribution or any indemnification,
against Ceva, Inc. or any member of the Ceva, Inc. Group, or any other Person
released pursuant to Section 5.1(b), with respect to any Liabilities released
pursuant to Section 5.1(b).
24
(e) It is the intent of each of DSPGI and Ceva, Inc., by virtue of the
provisions of this Section 5.1, to provide for a full and complete release and
discharge of all Liabilities existing or arising from all acts and events
occurring or failing to occur or alleged to have occurred or to have failed to
occur and all conditions existing or alleged to have existed on or before the
Distribution Date, between or among Ceva, Inc. or any member of the Ceva, Inc.
Group, on the one hand, and DSPGI or any member of the DSPGI Group, on the
other hand (including any contractual agreements or arrangements existing or
alleged to exist between or among any such members on or before the
Distribution Date), except as expressly set forth in Section 5.1(c). At any
time, at the request of any other party, each party shall cause each member of
its respective Group to execute and deliver releases reflecting the provisions
hereof.
5.2. Indemnification by Ceva, Inc. Except as provided in Section 5.4, Ceva,
Inc. shall indemnify, defend and hold harmless DSPGI, each member of the DSPGI
Group and each of their respective directors, officers and employees, and each
of the heirs, executors, successors and assigns of any of the foregoing
(collectively, the "DSPGI Indemnitees"), from and against any and all
Liabilities of the DSPGI Indemnitees relating to, arising out of or resulting
from any of the following items (without duplication):
(a) the failure of Ceva, Inc. or any other member of the Ceva, Inc. Group
or any other Person to pay, perform, or discharge any Corage Assumed
Liabilities in accordance with their respective terms, whether prior to or
after the Combination Effective Date or the date of this Agreement;
(b) any breach by Ceva, Inc. or any member of the Ceva, Inc. Group of
this Agreement, any of the Ancillary Agreements, or the Tax Indemnification
Agreement subject to any limitations set forth in the Ancillary Agreements
or the Tax Indemnification Agreement; and
(c) any breach by Ceva, Inc. or any member of the Ceva, Inc. Group of any
covenants or obligations in the Combination Agreement or in any documents or
instruments executed and delivered by Ceva, Inc. or any member of the Ceva,
Inc. Group, occurring at any time on or after the Distribution Date.
5.3. Indemnification by DSPGI. Except as otherwise provided in Section 5.5,
DSPGI shall indemnify, defend and hold harmless Ceva, Inc., each member of the
Ceva, Inc. Group and each of their respective directors, officers and
employees, and each of the heirs, executors, successors and assigns of any of
the foregoing (collectively, the "Ceva, Inc. Indemnitees"), from and against
any and all Liabilities of the Ceva, Inc. Indemnitees relating to, arising out
of or resulting from any of the following items (without duplication):
(a) the failure of DSPGI or any other member of the DSPGI Group or any
other Person to pay, perform or otherwise promptly discharge any Liabilities
of DSPGI or the DSPGI Group, which includes any and all Liabilities which
are not Corage Assumed Liabilities, whether prior to or after the
Distribution Date or the date of this Agreement;
(b) any breach by DSPGI or any member of the DSPGI Group of this
Agreement, any of the Ancillary Agreements or the Tax Indemnification
Agreement, including
25
any breach or inaccuracy of any representation or warranty made herein or
therein subject to any limitations set forth in the Ancillary Agreements or
the Tax Indemnification Agreement; and
(c) any breach by DSPGI or any member of the DSPGI Group of any covenants
or obligations in the Combination Agreement or in any documents or
instruments executed and delivered by DSPGI or any member of the DSPGI
Group, occurring at any time after the Distribution Date.
5.4. Indemnification Obligations Net of Insurance Proceeds and Other Amounts.
(a) The parties intend that any Liability subject to indemnification or
reimbursement pursuant to this Article V or Article VI will be net of Insurance
Proceeds that actually reduce the amount of the Liability. Accordingly, the
amount which any party (an "Indemnifying Party") is required to pay to any
Person entitled to indemnification hereunder (an "Indemnitee") will be reduced
by any Insurance Proceeds theretofore actually recovered by or on behalf of the
Indemnitee in reduction of the related Liability. If an Indemnitee receives a
payment (an "Indemnity Payment") required by this Agreement from an
Indemnifying Party in respect of any Liability and subsequently receives
Insurance Proceeds, then the Indemnitee shall pay to the Indemnifying Party an
amount equal to the excess of the Indemnity Payment received over the amount of
the Indemnity Payment that would have been due if the Insurance Proceeds had
been received, realized or recovered before the Indemnity Payment was made.
(b) An insurer who would otherwise be obligated to pay any claim shall not
be relieved of the responsibility with respect thereto or, solely by virtue of
the indemnification provisions hereof, have any subrogation rights with respect
thereto, it being expressly understood and agreed that no insurer or any other
third party shall be entitled to a "windfall" (i.e., a benefit they would not
be entitled to receive in the absence of the indemnification provisions) by
virtue of the indemnification provisions hereof. Nothing in this Agreement or
any Ancillary Agreement shall obligate any member of any Group to seek to
collect or recover any Insurance Proceeds.
5.5. Procedures for Indemnification of Third Party Claims.
(a) If an Indemnitee shall receive notice or otherwise learn of the
assertion by a Person (including any Governmental Authority) of any claim or of
the commencement by any such Person of any Action (collectively, a "Third Party
Claim") with respect to which an Indemnifying Party may be obligated to provide
indemnification to such Indemnitee pursuant to Section 5.2 or 5.3, or any other
Section of this Agreement, any Ancillary Agreement, such Indemnitee shall give
such Indemnifying Party written notice thereof within twenty days after
becoming aware of such Third Party Claim. Any such notice shall describe the
facts constituting the basis for the Third Party Claim and the amount of the
claimed Damages in reasonable detail. Notwithstanding the foregoing, no delay
or failure of any Indemnitee to give the notice as provided in this Section
5.5(a) shall not relieve the related Indemnifying Party of its obligations
under this Article V, except to the extent of any damage or liability arising
out of such delay or failure.
26
(b) An Indemnifying Party may elect to defend, with counsel reasonably
satisfactory to the Indemnitee (and, unless the Indemnifying Party has
specified any reservations or exceptions, to seek to settle or compromise), at
such Indemnifying Party's own expense, any Third Party Claim. Within thirty
days after the receipt of the notice from an Indemnitee in accordance with
Section 5.5(a) (or sooner, if the nature of such Third Party Claim so
requires), the Indemnifying Party shall notify the Indemnitee of its election
whether the Indemnifying Party shall assume responsibility for defending such
Third Party Claim, which election shall specify any reservations or exceptions;
provided that (i) the Indemnifying Party may only assume control of such
defense if (A) it acknowledges in writing to the Indemnitee that any Damages,
fines, costs or other liabilities that may be assessed against the Indemnitee
in connection with such Third Party Claim constitute Damages for which the
Indemnitee shall be indemnified pursuant to this Article V and (B) the ad
damnum is less than or equal to the amount of Damages for which the
Indemnifying Party is liable under this Article V and (ii) the Indemnifying
Party may not assume control of the defense of Third Party Claim involving
criminal liability or in which equitable relief is sought against the
Indemnitee; provided however, with respect to a Third Party Claim involving
both equitable relief and monetary damages and in which the liability and
damages phases of the proceeding are separated, the Indemnifying Party may
assume the defense of the portion of the proceeding solely as it relates to
monetary damages. After notice from an Indemnifying Party to an Indemnitee of
its election to assume the defense of a Third Party Claim, such Indemnitee
shall have the right to employ separate counsel and to participate in (but not
control) the defense, compromise, or settlement thereof, but the fees and
expenses of such counsel shall be the expense of such Indemnitee except as set
forth in the next sentence. In the event that the Indemnifying Party has
elected to assume the defense of the Third Party Claim but has specified, and
continues to assert, any reservations or exceptions in such notice, then, in
any such case, the reasonable fees and expenses of one separate counsel for all
Indemnitees shall be borne by the Indemnifying Party.
(c) If an Indemnifying Party elects not to assume responsibility for
defending a Third Party Claim, or fails to notify an Indemnitee of its election
as provided in Section 5.5(a), such Indemnitee may defend such Third Party
Claim at the cost and expense of the Indemnifying Party.
(d) Unless the Indemnifying Party has failed to assume the defense of the
Third Party Claim in accordance with the terms of this Agreement, no Indemnitee
may settle or compromise any Third Party Claim without the written consent of
the Indemnifying Party, which consent shall not be unreasonably withheld,
conditioned or delayed.
(e) No Indemnifying Party shall consent to entry of any judgment or enter
into any settlement of the Third Party Claim without the written consent of the
Indemnitee; provided that the consent of the Indemnitee shall not be required
if the Indemnifying Party agrees in writing to pay any amounts payable pursuant
to such settlement or judgment and such settlement or judgment includes a
complete release of the Indemnitee from further liability and has no other
adverse effect on the Indemnitee.
(f) In order to seek indemnification under this Article V, an Indemnitee
shall deliver a Claim Notice to the Indemnifying Party.
27
(g) During the thirty-day period following the delivery of a Claim Notice,
the Indemnifying Party and the Indemnitee shall use good faith efforts to
resolve the Claim described therein. If within the thirty-day period following
delivery of the Claim Notice, the parties agree in writing that the Indemnitee
is entitled to the Claimed Amount or the Agreed Amount, the Indemnifying Party
shall within five days of such agreement deliver to the Indemnitee, a payment
of the Claimed Amount or the Agreed Amount, whichever is applicable by check or
by wire transfer. If the Claim is not entirely resolved within such thirty-day
period, the Indemnifying Party and the Indemnitee shall discuss in good faith
the submission of the Dispute to binding arbitration, and if the Indemnifying
Party and the Indemnified Party agree in writing to submit the Dispute to such
arbitration, then the provisions of Article VIII. The provisions of this
Section 5.5(g) shall not obligate the Indemnifying Party and the Indemnitee to
submit to arbitration or any other alternative dispute resolution procedure
with respect to any Dispute, and in the absence of an agreement by the
Indemnifying Party and the Indemnitee to arbitrate a Dispute, such Dispute
shall be resolved in a state or federal court sitting in New York, New York.
5.6. Additional Matters.
(a) Any claim on account of a Liability which does not result from a Third
Party Claim shall be asserted by written notice given by the Indemnitee to the
related Indemnifying Party. Such Indemnifying Party shall have a period of
thirty days after the receipt of such notice within which to accept
responsibility for such claim in writing. If such Indemnifying Party does not
accept responsibility therefor within such thirty-day period, such Indemnifying
Party shall be deemed to have refused to accept responsibility to make payment.
If such Indemnifying Party does not respond within such thirty-day period or
rejects such claim in whole or in part, such Indemnitee shall be free to pursue
such remedies as may be available to such party as contemplated by this
Agreement, the Ancillary Agreements and the Tax Indemnification Agreement
without prejudice to its right to receive indemnification from the Indemnifying
Party if it is ultimately determined that such rejection was improper.
(b) In the event of payment by or on behalf of any Indemnifying Party to any
Indemnitee in connection with any Third Party Claim, such Indemnifying Party
shall be subrogated to and shall stand in the place of such Indemnitee as to
any events or circumstances in respect of which such Indemnitee may have any
right, defense or claim relating to such Third Party Claim against any claimant
or plaintiff asserting such Third Party Claim or against any other person. Such
Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner,
and at the cost and expense of such Indemnifying Party, in prosecuting any
subrogated right, defense or claim.
(c) In the event of an Action in which the Indemnifying Party is not a named
defendant, if the Indemnifying Party shall so request, the parties shall
endeavor to substitute the Indemnifying Party for the named defendant if at all
practicable. If such substitution or addition cannot be achieved for any reason
or is not requested, the named defendant shall allow the Indemnifying Party to
manage the Action as set forth in this Section and the Indemnifying Party shall
fully indemnify the named defendant against all costs of defending the Action
(including court costs, sanctions imposed by a court, attorneys' fees, experts'
fees and all other external
28
expenses), the costs of any judgment or settlement, and the cost of any
interest or penalties relating to any judgment or settlement.
5.7. Remedies Cumulative. The remedies provided in this Article V shall be
cumulative and, subject to the provisions of Article VIII, shall not preclude
assertion by any Indemnitee of any other rights or the seeking of any and all
other remedies against any Indemnifying Party.
5.8. Survival of Indemnities. The rights and obligations of each of DSPGI
and Ceva, Inc. and their respective Indemnitees under this Article V shall
survive the sale or other transfer by any party of any assets or businesses or
the assignment by it of any Liabilities until the second anniversary following
the Distribution Date.
5.9. Tax-Related Losses. Notwithstanding anything herein to the contrary,
Article IV shall govern and shall be the exclusive remedy for any breach of any
representation, warranty or covenant contained in Article IV of this Agreement;
provided, however, that Article VIII shall govern any disputes among the
parties arising out of Article IV. Except as otherwise specifically provided in
this Agreement or in any Ancillary Agreement, as applicable, the
indemnification rights afforded by this Article V are the exclusive remedy for
all other matters relating to this Agreement, the Ancillary Agreements and the
transactions contemplated hereby and thereby.
ARTICLE VI
INTERIM OPERATIONS AND CERTAIN OTHER MATTERS
6.1. Certain Business Matters.
(a) Except as may be expressly set forth in Section 6.2 below or in any
Ancillary Agreement, no member of any Group shall have any duty to refrain from
(i) engaging in the same or similar activities or lines of business as any
member of any other Group, (ii) doing business with any potential or actual
supplier or customer of any member of any other Group, or (iii) engaging in, or
refraining from, any other activities whatsoever relating to any of the
potential or actual suppliers or customers of any member of any other Group.
(b) Each of DSPGI and Ceva, Inc. is aware that from time to time certain
business opportunities may arise which more than one Group may be financially
able to undertake, and which are, from their nature, in the line of more than
one Group's business and are of practical advantage to more than one Group. In
connection therewith, the parties agree that if, following the Distribution
Date and prior to (but not following) the Combination Effective Date, any of
DSPGI or Ceva, Inc. acquires knowledge of an opportunity that meets the
foregoing standard with respect to more than one Group, none of DSPGI or Ceva,
Inc. shall have any duty to communicate or offer such opportunity to any of the
others and may pursue or acquire such opportunity for itself, or direct such
opportunity to any other Person in each case subject to the provisions of
Section 6.2.
6.2. Non-Competition, Solicitation and Hiring.
29
(a) Subject to the restrictions and rights set forth in the Technology
Transfer Agreements, the DSPGI Group acknowledges that, prior to the
Distribution, it has and will have become privy to certain confidential
information and trade secrets of Ceva, Inc. and further acknowledges that it
will derive substantial benefits from the consummation of the transactions
contemplated by this Agreement and that Ceva, Inc. is consummating such
transactions in reliance upon the agreement in this Section 6.2 that the
knowledge and expertise developed by Ceva, Inc. and available to the DSPGI
Group will be preserved and will not be used in competition with Ceva, Inc. The
DSPGI Group acknowledges that it is reasonable and necessary for the protection
of Ceva, Inc. and its Subsidiaries that the DSPGI Group agree, and accordingly
the DSPGI Group does agree that, for a period of five years following the
Distribution Date (the "Noncompetition Period"), the DSPGI Group shall not, and
shall ensure that Affiliates of the DSPGI Group shall not directly or
indirectly engage in any business that is competitive with the Licensing
Business.
(b) Subject to the restrictions and rights set forth in the Technology
Transfer Agreements, the Ceva, Inc. Group acknowledges that, prior to the
Distribution, it has and will have become privy to certain confidential
information of DSPGI and further acknowledges that it will derive substantial
benefits from the consummation of the transactions contemplated by this
Agreement and that DSPGI is consummating such transactions in reliance upon the
agreement in this Section 6.2 that the knowledge and expertise developed by
DSPGI and available to the Ceva, Inc. Group (and the rights to use which have
not been conveyed to Ceva, Inc., DSP Ceva or Corage, Ltd. pursuant to the
transactions contemplated by Section 2.2 of this Agreement) will be preserved
and will not be used in competition with DSPGI. The Ceva, Inc. Group
acknowledges that its is reasonable and necessary for the protection of DSPGI
and its Subsidiaries that the Ceva, Inc. Group agree, and accordingly the Ceva,
Inc. Group does agree that, during the Noncompetition Period, the Ceva, Inc.
Group shall not and shall ensure that Affiliates of the Ceva, Inc. Group shall
not directly or indirectly engage in any business that is competitive with the
Products Business.
(c) For a period of three years after the Distribution Date, each of DSPGI
and Ceva, Inc. shall not, either directly or indirectly (including through an
Affiliate), solicit for hire any employee of the other or its Subsidiaries;
provided, however, that such restriction shall not apply to (i) any individual
whose employment with such party has been terminated or (ii) any general
employment solicitations that are not targeted at any such employees, such as
advertisements in publications in general circulation.
(d) For purposes of this Section 6.2, neither DSPGI nor Ceva, Inc. will be
deemed to be engaged indirectly in an activity as a result of another Person
engaging in that activity unless that Person is its Affiliate.
(e) The invalidity or non-enforceability of this Section 6.2 in any respect
shall not affect the validity or enforceability of this Section 6.2 in any
other respect or of any other provisions of this Agreement. In the event that
any provision of this Section 6.2 shall be held invalid or unenforceable by a
court of competent jurisdiction by reason of the geographic or business scope
or the duration thereof, such invalidity or unenforceability shall attach only
to the scope or duration of such provision and shall not affect or render
invalid or unenforceable any other provision of this Agreement, and, to the
fullest extent permitted by law, this Agreement
30
shall be construed as if the geographic or business scope or the duration of
such provision had been more narrowly drafted so as not to be invalid or
unenforceable.
(f) Each of Ceva, Inc. and DSPGI acknowledges that the other party would
suffer irreparable harm if it were to breach its obligations under Sections
6.2(a) or (b), respectively, and that the other party's remedy at law for any
such breach is and will be insufficient and inadequate and that the other shall
be entitled to equitable relief, including by way of temporary and permanent
injunction, in addition to any remedies the other party may have at law.
6.3. Late Payments. Except as expressly provided to the contrary in this
Agreement or in any Ancillary Agreement, any amount not paid when due pursuant
to this Agreement or any Ancillary Agreement or the Tax Indemnification
Agreement (and any amounts billed or otherwise invoiced or demanded and
properly payable that are not paid within thirty days of such bill, invoice or
other demand) shall accrue interest at a rate per annum equal to the Prime Rate
plus two percent.
ARTICLE VII
EXCHANGE OF INFORMATION; CONFIDENTIALITY
7.1. Agreement for Exchange of Information; Archives.
(a) Each of DSPGI and Ceva, Inc., on behalf of its respective Group, agrees
to provide, or cause to be provided, to the other Group, at any time before or
after the Distribution Date, as soon as reasonably practicable after written
request therefor, any Information in the possession or under the control of
such Group which the requesting party reasonably needs (i) to comply with
reporting, disclosure, filing or other requirements imposed on the requesting
party (including under applicable securities or tax laws) by a Governmental
Authority having jurisdiction over the requesting party, (ii) for use in any
other judicial, regulatory, administrative, tax or other proceeding or in order
to satisfy audit, accounting, claims, regulatory, litigation, tax or other
similar requirements, or (iii) to comply with its obligations under this
Agreement or any Ancillary Agreement; provided, however, that in the event that
any party determines that any such provision of Information could be
commercially detrimental, violate any law or agreement, or waive any attorney
client privilege, the parties shall take all reasonable measures to permit the
compliance with such obligations in a manner that avoids any such harm or
consequences.
(b) After the Combination Effective Date, Ceva, Inc. shall have access
during regular business hours (as in effect from time to time) to the documents
and objects of historic significance that relate to the business of Ceva, Inc.
that are located in the records of DSPGI. Ceva, Inc. may obtain copies (but not
originals) of documents for bona fide business purposes and Ceva, Inc. shall
comply with any rules, procedures or other requirements, and shall be subject
to any restrictions (including prohibitions on removal of specified objects),
that are then applicable to DSPGI. Nothing herein shall be deemed to restrict
the access of any member of the DSPGI Group to any such documents.
7.2. Ownership of Information. Any Information owned by one Group that is
provided to a requesting party pursuant to Section 7.1 shall be deemed to
remain the property
31
and confidential information of the providing party. Unless specifically set
forth herein, nothing contained in this Agreement shall be construed as
granting or conferring rights of license or otherwise in any such Information.
7.3. Compensation for Providing Information. The party requesting such
Information shall reimburse the other party for the reasonable costs, if any,
of creating, gathering and copying such Information, to the extent that such
costs are incurred for the benefit of the requesting party. Except as may be
otherwise specifically provided elsewhere in this Agreement or in any other
agreement between the parties, such costs shall be computed in accordance with
the providing party's standard methodology and procedures.
7.4. Record Retention. To facilitate the possible exchange of Information
pursuant to this Article VII and other provisions of this Agreement after the
Distribution Date, the parties shall exercise their reasonable best efforts to
retain all Information in their respective possession or control on the
Distribution Date. No party will destroy, or permit any of its Subsidiaries to
destroy, any Information which the other party may have the right to obtain
pursuant to this Agreement prior to the third anniversary of the date of this
Agreement without first using its reasonable best efforts to notify the other
party of the proposed destruction and giving the other party the opportunity to
take possession of such information prior to such destruction; provided,
however, that in the case of any Information relating to Taxes (as such term is
defined in the Combination Agreement) or to Environmental Liabilities, such
period shall be extended to the expiration of the applicable statute of
limitations (giving effect to any extensions thereof).
7.5. Limitation of Liability. No party shall have any liability to any
other party in the event that any Information exchanged or provided pursuant to
this Agreement which is an estimate or forecast, or which is based on an
estimate or forecast, is found to be inaccurate, in the absence of willful
misconduct by the party providing such Information. No party shall have any
liability to any other party if any Information is destroyed after reasonable
best efforts by such party to comply with the provisions of Section 7.4.
7.6. Other Agreements Providing for Exchange of Information. The rights and
obligations granted under this Article VII are subject to any specific
limitations, qualifications or additional provisions on the sharing, exchange
or confidential treatment of Information set forth in any Ancillary Agreement.
7.7. Production of Witnesses; Records; Cooperation.
(a) After the Distribution Date, except in the case of an adversarial Action
by one party against another party, each party hereto shall exercise its
reasonable best efforts to make available to each other party, upon written
request, the former, current and future directors, officers, employees, other
personnel and agents of the members of its respective Group as witnesses and
any books, records or other documents within its control or which it otherwise
has the ability to make available, to the extent that any such person (giving
consideration to business demands of such directors, officers, employees, other
personnel and agents) or books, records or other documents may reasonably be
required in connection with any Action in which the requesting party may from
time to time be involved, regardless of whether such Action is a matter with
respect to which indemnification may be sought hereunder.
32
(b) If an Indemnifying Party chooses to defend or to seek to compromise or
settle any Third Party Claim, the other parties shall make available to such
Indemnifying Party or such other party, as the case may be, upon written
request, the former, current and future directors, officers, employees, other
personnel and agents of the members of its respective Group as witnesses and
any books, records or other documents within its control or which it otherwise
has the ability to make available, to the extent that any such person (giving
consideration to business demands of such directors, officers, employees, other
personnel and agents) or books, records or other documents may reasonably be
required in connection with such defense, settlement or compromise, or such
prosecution, evaluation or pursuit, as the case may be, and shall otherwise
cooperate in such defense, settlement or compromise, or such prosecution,
evaluation or pursuit, as the case may be.
(c) Without limiting the foregoing, the parties shall cooperate and consult
to the extent reasonably necessary with respect to any Actions.
(d) Without limiting any provision of this Section, each of the parties
agrees to cooperate, and to cause each member of its respective Group to
cooperate, with each other in the defense of any infringement or similar claim
with respect to any intellectual property and shall not claim to acknowledge,
or permit any member of its respective Group to claim to acknowledge, the
validity or infringing use of any intellectual property of a third Person in a
manner that would hamper or undermine the defense of such infringement or
similar claim.
(e) The obligation of the parties to provide witnesses pursuant to this
Section 7.7 is intended to be interpreted in a manner so as to facilitate
cooperation and shall include the obligation to provide as witnesses inventors
and other officers without regard to whether the witness or the employer of the
witness could assert a possible business conflict (subject to the exception set
forth in the first sentence of Section 7.7(a)).
(f) In connection with any matter contemplated by this Section 7.7, the
parties shall enter into a mutually acceptable joint defense agreement so as to
maintain to the extent practicable any applicable attorney-client privilege or
work product immunity of any member of any Group.
7.8. Confidentiality.
(a) Subject to Section 7.9, each of DSPGI and Ceva, Inc., on behalf of
itself and each member of its respective Group, agrees to hold, and to cause
its respective directors, officers, employees, agents, accountants, counsel and
other advisors and representatives to hold, in strict confidence, with at least
the same degree of care that applies to DSPGI's confidential and proprietary
information pursuant to policies in effect as of the Distribution Date, all
Information concerning each such other Group that is either in its possession
(including Information in its possession prior to any of the date hereof, the
Combination Effective Date or the Distribution Date) or furnished by any such
other Group or its respective directors, officers, employees, agents,
accountants, counsel and other advisors and representatives at any time
pursuant to this Agreement, any Ancillary Agreement, the Tax Indemnification
Agreement or otherwise, and shall not use any such Information other than for
such purposes as shall be expressly permitted hereunder or thereunder, except,
in each case, to the extent that such
33
Information has been (i) in the public domain through no fault of such party or
any member of such Group or any of their respective directors, officers,
employees, agents, accountants, counsel and other advisors and representatives,
(ii) later lawfully acquired from other sources by such party (or any member of
such party's Group) which sources are not themselves bound by a confidentiality
obligation), or (iii) independently generated without reference to any
proprietary or confidential Information of the other party.
(b) Each party agrees not to release or disclose, or permit to be released
or disclosed, any such Information to any other Person, except its directors,
officers, employees, agents, accountants, counsel and other advisors and
representatives who need to know such Information (who shall be advised of
their obligations hereunder with respect to such Information), except in
compliance with Section 7.9. Without limiting the foregoing, when any
Information is no longer needed for the purposes contemplated by this
Agreement, any Ancillary Agreement or the Tax Indemnification Agreement, each
party shall promptly after request of any other party either return to the
other party all Information in a tangible form (including all copies thereof
and all notes, extracts or summaries based thereon) or certify to the other
party that it has destroyed such Information (and such copies thereof and such
notes, extracts or summaries based thereon).
(c) The terms and conditions of this Section 7.8 shall not apply to any
Confidential Information (as defined in the Technology Transfer Agreements),
which instead shall be subject to the confidentiality and other provisions of
the Technology Transfer Agreements.
7.9. Protective Arrangements. If any party or any member of its Group
either determines on the advice of its counsel that it is required to disclose
any Information pursuant to applicable law or receives any demand under lawful
process or from any Governmental Authority to disclose or provide Information
of any other party (or any member of any other party's Group) that is subject
to the confidentiality provisions hereof, such party shall notify the other
party prior to disclosing or providing such Information and shall cooperate at
the expense of the requesting party in seeking any reasonable protective
arrangements requested by such other party. Subject to the foregoing, the
Person that received such request may thereafter disclose or provide
Information to the extent required by such law (as so advised by counsel) or by
lawful process or such Governmental Authority.
7.10. Reimbursement. Except to the extent otherwise contemplated by any
Ancillary Agreement, a party providing information to the other party under
this Article VII shall be entitled to receive from the recipient of such
information, upon presentation of invoices thereof, payments for such amount
relating to supplies, disbursements and other out-of-pocket expenses, as may be
reasonably incurred in providing such information.
ARTICLE VIII
ARBITRATION; DISPUTE RESOLUTION
8.1. Agreement to Arbitrate. Except as otherwise specifically provided in
any Ancillary Agreement, the procedures for discussion, negotiation and
arbitration set forth in this
34
Article VIII shall apply to all disputes, controversies or claims (whether
sounding in contract, tort or otherwise) that may arise out of or relate to, or
arise under or in connection with this Agreement or any Ancillary Agreement, or
the transactions contemplated hereby or thereby (including all actions taken in
furtherance of the transactions contemplated hereby or thereby on or prior to
the date hereof), or the commercial or economic relationship of the parties
relating hereto or thereto, between or among any member of the DSPGI Group and
the Ceva, Inc. Group. Each party agrees on behalf of itself and each member of
its respective Group that the procedures set forth in this Article VIII shall
be the sole and exclusive remedy in connection with any dispute, controversy or
claim relating to any of the foregoing matters and irrevocably waives any right
to commence any Action in or before any Governmental Authority, except as
expressly provided in Sections 8.7(b) and 8.8 and except to the extent provided
under the United States Federal Arbitration Act in the case of judicial review
of arbitration results or awards. Each party on behalf of itself and each
member of its respective Group irrevocably waives any right to any trial by
jury with respect to any claim, controversy or dispute set forth in the first
sentence of this Section 8.1.
8.2. Escalation.
(a) It is the intent of the parties to exercise their respective reasonable
best efforts to resolve expeditiously any dispute, controversy or claim between
or among them with respect to the matters covered hereby that may arise from
time to time on a mutually acceptable negotiated basis. In furtherance of the
foregoing, any party involved in a dispute, controversy or claim may deliver a
notice (an "Escalation Notice") demanding an in person meeting involving
representatives of the parties at a senior level of management of the parties
(or if the parties agree, of the appropriate strategic business unit or
division within such entity). A copy of any such Escalation Notice shall be
given to the Chief Financial Officer, or like officer or official, of each
party involved in the dispute, controversy or claim (which copy shall state
that it is an Escalation Notice pursuant to this Agreement). Any agenda,
location or procedure for such discussions or negotiations between the parties
may be established by the parties from time to time; provided, however, that
the parties shall exercise their reasonable best efforts to meet within thirty
days of the Escalation Notice.
(b) The parties may, by mutual consent, retain a mediator to aid the parties
in their discussions and negotiations by informally providing advice to the
parties. Any opinion expressed by the mediator shall be strictly advisory and
shall not be binding on the parties, nor shall any opinion expressed by the
mediator be admissible in any arbitration proceedings. The mediator may be
chosen from a list of mediators previously selected by the parties or by other
agreement of the parties.
(c) Costs of the mediation shall be borne equally by the parties involved in
the matter, except that each party shall be responsible for its own expenses.
Mediation is not a prerequisite to a demand for arbitration under Section 8.3.
8.3. Demand for Arbitration.
(a) At any time after the first to occur of (i) the date of the meeting
actually held pursuant to the applicable Escalation Notice or (ii) in the event
no such meeting occurs,
35
forty-five days after the delivery of an Escalation Notice, any party involved
in the dispute, controversy or claim (regardless of whether such party
delivered the Escalation Notice) may, unless the Applicable Deadline has
occurred, make a written demand (the "Arbitration Demand Notice") that the
dispute be resolved by binding arbitration, which Arbitration Demand Notice
shall be given to the parties to the dispute, controversy or claim in the
manner set forth in Section 11.5. If party shall deliver an Arbitration Demand
Notice to another party, such other party may itself deliver an Arbitration
Demand Notice to such first party with respect to any related dispute,
controversy or claim with respect to which the Applicable Deadline has not
passed without the requirement of delivering an Escalation Notice. No party may
assert that the failure to resolve any matter during any discussions or
negotiations, the course of conduct during the discussions or negotiations or
the failure to agree on a mutually acceptable time, agenda, location or
procedures for the meeting, in each case, as contemplated by Section 8.2, is a
prerequisite to a demand for arbitration under Section 8.3.
(b) Except as may be expressly provided in any Ancillary Agreement, any
Arbitration Demand Notice may be given until one year and forty-five days after
the later of the occurrence of the act or event giving rise to the underlying
claim or the date on which such act or event was, or should have been, in the
exercise of reasonable due diligence, discovered by the party asserting the
claim (as applicable and as it may in a particular case be specifically
extended by the parties in writing, the "Applicable Deadline"). Any
discussions, negotiations or mediations between the parties pursuant to this
Agreement or otherwise shall not toll the Applicable Deadline unless expressly
agreed in writing by the parties. Each of the parties agrees on behalf of
itself and each member of its Group that if an Arbitration Demand Notice with
respect to a dispute, controversy or claim is not given prior to the expiration
of the Applicable Deadline, as between or among the parties and the members of
their Groups, such dispute, controversy or claim will be barred,
notwithstanding any longer statute of limitations afforded by any applicable
law. Subject to Sections 8.7(d) and 8.8, upon delivery of an Arbitration Demand
Notice pursuant to Section 8.3(a) prior to the Applicable Deadline, the
dispute, controversy or claim shall be decided by a sole arbitrator in
accordance with the rules set forth in this Article VIII.
8.4. Arbitrators.
(a) Within fifteen days after a valid Arbitration Demand Notice is given,
the parties involved in the dispute, controversy or claim referenced therein
shall attempt to select a sole arbitrator satisfactory to all such parties.
(b) If such parties are not able jointly to select a sole arbitrator within
such fifteen-day period, such parties shall each appoint an arbitrator within
thirty days after delivery of the Arbitration Demand Notice. If one party
appoints an arbitrator within such time period and the other party or parties
fail to appoint an arbitrator within such time period, the arbitrator appointed
by the one party shall be the sole arbitrator of the matter.
(c) If a sole arbitrator is not selected pursuant to paragraph (a) or (b)
above and, instead, two or more arbitrators are selected pursuant to paragraph
(b) above, the arbitrators shall, within thirty days after the appointment of
the later of them to be appointed, select an additional arbitrator who shall
act as the sole arbitrator of the dispute. After selection of such
36
sole arbitrator, the initial arbitrators shall have no further role with
respect to the dispute. In the event that the arbitrators so appointed do not,
within thirty days after the appointment of the later of them to be appointed,
agree on the selection of the sole arbitrator, any party involved in such
dispute may apply to the American Arbitration Association to select the sole
arbitrator, which selection shall be made by such organization within thirty
days after such application. Any arbitrator selected pursuant to this paragraph
(c) shall be disinterested with respect to any of the parties and the matter
and shall be reasonably competent in the applicable subject matter.
(d) The sole arbitrator selected pursuant to paragraph (a), (b) or (c) above
shall set a time for the hearing of the matter which will commence no later
than ninety days after the date of appointment of the sole arbitrator pursuant
to paragraph (a), (b) or (c) above and which hearing will be no longer than
thirty days (unless in the judgment of the arbitrator the matter is unusually
complex and sophisticated and thereby requires a longer time, in which event
such hearing shall be no longer than ninety days). The final decision of such
arbitrator will be rendered in writing to the parties not later than sixty days
after the last hearing date, unless otherwise agreed by the parties in writing.
(e) The place of any arbitration hereunder will be New York, New York,
unless otherwise agreed by the parties.
8.5. Hearings. Within the time period specified in Section 8.4(d), the
matter shall be presented to the arbitrator at a hearing by means of written
submissions of memoranda and verified witness statements and exhibits, filed
simultaneously, and responses, if necessary in the judgment of the arbitrator
or both the parties. If the arbitrator deems it to be essential to a fair
resolution of the dispute, live cross-examination or direct examination may be
permitted, but is not generally contemplated to be necessary. The arbitrator
shall actively manage the arbitration with a view to achieving a just, speedy
and cost-effective resolution of the dispute, claim or controversy. The
arbitrator may, in his or her discretion, set time and other limits on the
presentation of each party's case, its memoranda or other submissions, and
refuse to receive any proffered evidence, which the arbitrator, in his or her
discretion, finds to be cumulative, unnecessary, irrelevant or of low probative
nature. Except as otherwise set forth herein, any arbitration hereunder will be
conducted in accordance with the American Arbitration Association Commercial
Rules then prevailing. Except as expressly set forth in Section 8.8(b), the
decision of the arbitrator shall be final and binding on the parties, and
judgment thereon may be had and shall be enforceable in any court having
jurisdiction over the parties. Arbitration awards will bear interest at an
annual rate of the Prime Rate plus two percent per annum. To the extent that
the provisions of this Agreement and the prevailing rules of the American
Arbitration Association conflict, the provisions of this Agreement shall govern.
8.6. Discovery and Certain Other Matters.
(a) Any party involved in the applicable dispute may request limited
document production from the other party or parties of specific and expressly
relevant documents, with the reasonable expenses of the producing party
incurred in such production paid by the requesting party. Any such discovery
(which rights to documents shall be substantially less than document discovery
rights prevailing under the Federal Rules of Civil Procedure) shall be
conducted expeditiously and shall not cause the hearing provided for in Section
8.5 to be
37
adjourned except upon consent of all parties involved in the applicable dispute
or upon an extraordinary showing of cause demonstrating that such adjournment
is necessary to permit discovery essential to a party to the proceeding.
Depositions, interrogatories or other forms of discovery (other than the
document production set forth above) shall not occur except by consent of the
parties involved in the applicable dispute. Disputes concerning the scope of
document production and enforcement of the document production requests shall
be determined by written agreement of the parties involved in the applicable
dispute or, failing such agreement, will be referred to the arbitrator for
resolution. All discovery requests will be subject to the proprietary rights
and rights of privilege of the parties, and the arbitrator will adopt
procedures to protect such rights and to maintain the confidential treatment of
the arbitration proceedings (except as may be required by law). Subject to the
foregoing, the arbitrator shall have the power to issue subpoenas to compel the
production of documents relevant to the dispute, controversy or claim.
(b) The arbitrator shall have full power and authority to determine issues
of arbitrability but shall otherwise be limited to interpreting or construing
the applicable provisions of this Agreement or any Ancillary Agreement, and
shall have no authority or power to limit, expand, alter, amend, modify, revoke
or suspend any condition or provision of this Agreement or any Ancillary
Agreement; it being understood, however, that the arbitrator will have full
authority to implement the provisions of this Agreement or any Ancillary
Agreement, and to fashion appropriate remedies for breaches of this Agreement
(including interim or permanent injunctive relief); provided, however, that the
arbitrator shall not have (i) any authority in excess of the authority a court
having jurisdiction over the parties and the controversy or dispute would have
absent these arbitration provisions or (ii) any right or power to award
punitive or multiple damages. It is the intention of the parties that in
rendering a decision the arbitrator give effect to the applicable provisions of
this Agreement and the Ancillary Agreements and follow applicable law (it being
understood and agreed that this sentence shall not give rise to a right of
judicial review of the arbitrator's award).
(c) If a party fails or refuses to appear at and participate in an
arbitration hearing after due notice, the arbitrator may hear and determine the
controversy upon evidence produced by the appearing party.
(d) Arbitration costs will be borne equally by each party involved in the
matter, except that each party will be responsible for its own attorney's fees
and other costs and expenses, including the costs of witnesses selected by such
party.
8.7. Certain Additional Matters.
(a) Any arbitration award shall be a bare award limited to a holding for or
against a party and shall be without findings as to facts, issues or
conclusions of law (including with respect to any matters relating to the
validity or infringement of patents or patent applications) and shall be
without a statement of the reasoning on which the award rests, but must be in
adequate form so that a judgment of a court may be entered thereupon. Judgment
upon any arbitration award hereunder may be entered in any court having
jurisdiction thereof.
(b) Prior to the time at which an arbitrator is appointed pursuant to
Section 8.4, any party may seek one or more temporary restraining orders in a
court of competent
38
jurisdiction if necessary in order to preserve and protect the status quo.
Neither the request for, or grant or denial of, any such temporary restraining
order shall be deemed a waiver of the obligation to arbitrate as set forth
herein and the arbitrator may dissolve, continue or modify any such order. Any
such temporary restraining order shall remain in effect until the first to
occur of the expiration of the order in accordance with its terms or the
dissolution thereof by the arbitrator.
(c) Except as required by law, the parties shall hold, and shall cause their
respective officers, directors, employees, agents and other representatives to
hold, the existence, content and result of mediation or arbitration in
confidence in accordance with the provisions of Article VIII and except as may
be required in order to enforce any award. Each of the parties shall request
that any mediator or arbitrator comply with such confidentiality requirement.
(d) If at any time the sole arbitrator shall fail to serve as an arbitrator
for any reason, the parties shall select a new arbitrator who shall be
disinterested as to the parties and the matter in accordance with the
procedures set forth herein for the selection of the initial arbitrator. The
extent, if any, to which testimony previously given shall be repeated or as to
which the replacement arbitrator elects to rely on the stenographic record (if
there is one) of such testimony shall be determined by the replacement
arbitrator.
8.8. Limited Court Actions.
(a) Notwithstanding anything herein to the contrary, in the event that any
party reasonably determines the amount in controversy in any dispute,
controversy or claim (or any series of related disputes, controversies or
claims) under this Agreement or any Ancillary Agreement is, or is reasonably
likely to be, in excess of $5 million, excluding any interest accrued thereon,
and if such party desires to commence an Action in lieu of complying with the
arbitration provisions of this Article, such party shall so state in its
Arbitration Demand Notice. If the other parties to the arbitration do not agree
that the amount in controversy in such dispute, controversy or claim (or such
series of related disputes, controversies or claims) is, or is reasonably
likely to be, in excess of $5 million, the arbitrator selected pursuant to
Section 8.4 hereof shall decide whether the amount in controversy in such
dispute, controversy or claim (or such series of related disputes,
controversies or claims) is, or is reasonably likely to be, in excess of $5
million. The arbitrator shall set a date that is no later than ten days after
the date of his or her appointment for submissions by the parties with respect
to such issue. There shall not be any discovery in connection with such issue.
The arbitrator shall render his or her decision on such issue within five days
of such date so set by the arbitrator. If the arbitrator determines that the
amount in controversy in such dispute, controversy or claim (or such series of
related disputes, controversies or claims) is or is reasonably likely to be in
excess of $5 million, the provisions of Sections 8.4(d) and (e), 8.5, 8.6, 8.7
and 8.10 hereof shall not apply and on or before (but, except as expressly set
forth in Section 8.8(b), not after) the twentieth business day after the date
of such decision, any party to the arbitration may elect, in lieu of
arbitration, to commence an Action with respect to such dispute, controversy or
claim (or such series of related disputes, controversies or claims) in any
court of competent jurisdiction. If the arbitrator does not so determine, the
provisions of this Article (including with respect to time periods) shall apply
as if no determinations were sought or made pursuant to this Section 8.8(a).
39
(b) If an arbitration award in excess of $5 million is issued in any
arbitration proceeding commenced hereunder, any party may, within sixty days
after the date of such award, submit the dispute, controversy or claim (or
series of related disputes, controversies or claims) giving rise thereto to a
court of competent jurisdiction, regardless of whether such party or any other
party sought to commence an Action in lieu of proceeding with arbitration in
accordance with Section 8.8(a). In such event, the applicable court may elect
to rely on the record developed in the arbitration or, if it determines that it
would be advisable in connection with the matter, allow the parties to seek
additional discovery or to present additional evidence. Each party shall be
entitled to present arguments to the court with respect to whether any such
additional discovery or evidence shall be permitted and with respect to all
other matters relating to the applicable dispute, controversy or claim (or
series of related disputes, controversies or claims).
8.9. Continuity of Service and Performance. Unless otherwise agreed in
writing, the parties will continue to provide service and honor all other
commitments under this Agreement and each Ancillary Agreement during the course
of dispute resolution pursuant to the provisions of this Article VIII with
respect to all matters not subject to such dispute, controversy or claim.
8.10. Law Governing Arbitration Procedures. The interpretation of the
provisions of this Article VIII, only insofar as they relate to the agreement
to arbitrate and any procedures pursuant thereto, shall be governed by the
Arbitration Act and other applicable U.S. federal law. In all other respects,
the interpretation of this Agreement shall be governed as set forth in Section
11.2.
ARTICLE IX
FURTHER ASSURANCES AND ADDITIONAL COVENANTS
9.1. Further Assurances.
(a) In addition to the actions specifically provided for elsewhere in this
Agreement, each of the parties hereto shall use its commercially reasonable
efforts, prior to, on and after the Distribution Date, to take, or cause to be
taken, all actions, and to do, or cause to be done, all things reasonably
necessary, proper or advisable under applicable laws, regulations and
agreements to consummate and make effective the transactions contemplated by
this Agreement, the Ancillary Agreements and the Tax Indemnification Agreement.
(b) Prior to the Distribution Date, if one or more of the parties identifies
any commercial or other service that is needed to assure a smooth and orderly
transition of the businesses in connection with the consummation of the
transactions contemplated hereby, and that is not otherwise governed by the
provisions of this Agreement or any Ancillary Agreement, the parties will
cooperate in determining whether there is a mutually acceptable arm's-length
basis on which one or more of the other parties will provide such service.
40
ARTICLE X
TERMINATION
10.1. Termination by Mutual Consent. This Agreement may be terminated at
any time after the termination of the Combination Agreement by the mutual
consent of DSPGI and Ceva, Inc.
10.2. Other Termination. The obligations of the parties under Article III
(including the obligation to pursue or effect the Distribution) may be
terminated by DSPGI if the Distribution Date shall not have occurred on or
before December 31, 2002.
10.3. Effect of Termination. In the event of any termination of this
Agreement prior to the Combination Effective Date, no party to this Agreement
(or any of its directors or officers) shall have any Liability or further
obligation to any other party. In the event of any termination of this
Agreement on or after the Combination Effective Date, only the provisions of
Article III will terminate and the other provisions of this Agreement, each
Ancillary Agreement and the Tax Indemnification Agreement shall remain in full
force and effect.
ARTICLE XI
MISCELLANEOUS
11.1. Counterparts; Entire Agreement; Corporate Power.
(a) This Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement, and shall become effective when
one or more counterparts have been signed by each of the parties and delivered
to the other party.
(b) This Agreement, and the Exhibits, Schedules and Appendices hereto
contain the entire agreement between the parties with respect to the subject
matter hereof, supersede all previous agreements, negotiations, discussions,
writings, understandings, commitments and conversations with respect to such
subject matter and there are no agreements or understandings between the
parties other than those set forth or referred to herein or therein.
(c) DSPGI represents on behalf of itself and each other member of the DSPGI
Group and Ceva, Inc. represents on behalf of itself and each other member of
the Ceva, Inc. Group as follows:
(i) each such Person has the requisite corporate or other power and
authority and has taken all corporate or other action necessary in order to
execute, deliver and perform each of this Agreement, each of the Ancillary
Agreements and the Tax Indemnification Agreement to which it is a party and
to consummate the transactions contemplated hereby and thereby; and
(ii) this Agreement, each Ancillary Agreement and the Tax Indemnification
Agreement to which it is a party has been duly executed and delivered by it
and constitutes a valid and binding agreement of it enforceable in
accordance with the terms thereof.
41
11.2. Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Delaware (other than as
to its laws of arbitration which shall be governed under the Arbitration Act or
other applicable federal law pursuant to Section 8.10), irrespective of the
choice of laws principles of the State of Delaware, as to all matters,
including matters of validity, construction, effect, enforceability,
performance and remedies.
11.3. Assignability. Except as set forth in any Ancillary Agreement or the
Tax Indemnification Agreement, this Agreement, each Ancillary Agreement and the
Tax Indemnification Agreement shall be binding upon and inure to the benefit of
the parties hereto and thereto, respectively, and their respective successors
and assigns; provided, however, that no party hereto or thereto may assign its
respective rights or delegate its respective obligations under this Agreement,
any Ancillary Agreement or the Tax Indemnification Agreement without the
express prior written consent of the other parties hereto or thereto.
11.4. Third Party Beneficiaries. Except for the indemnification rights
under this Agreement of any DSPGI Indemnitee or Ceva, Inc. Indemnitee in their
respective capacities as such, (i) the provisions of this Agreement, each
Ancillary Agreement and the Tax Indemnification Agreement are solely for the
benefit of the parties and are not intended to confer upon any Person except
the parties any rights or remedies hereunder, and (ii) there are no third party
beneficiaries of this Agreement, any Ancillary Agreement or the Tax
Indemnification Agreement and none of this Agreement, any Ancillary Agreement
or the Tax Indemnification Agreement shall provide any third person with any
remedy, claim, liability, reimbursement, claim of action or other right in
excess of those existing without reference to this Agreement, any Ancillary
Agreement or the Tax Indemnification Agreement. No party hereto shall have any
right, remedy or claim with respect to any provision of this Agreement, any
Ancillary Agreement or the Tax Indemnification Agreement to the extent such
provision relates solely to the other two parties hereto or the members of such
other two parties' respective Groups.
11.5. Notices. All notices requests, demands, waivers and other
communications under this Agreement, any Ancillary Agreement or the Tax
Indemnification Agreement shall be in writing and shall be deemed to have been
duly given if delivered personally or by facsimile transmission or mailed
(certified or registered mail, postage prepaid, return receipt requested):
If to DSPGI: DSP Group, Inc.
5 Shenkar Street
Herzeliya 46120 Israel
Attention: Moshe Zelnik, Chief Financial Officer
-------------------------------------
Fax No.: 972-9-954-1513
-------------------------------------
If to Ceva, Inc.: Ceva, Inc.
3120 Scott Boulevard
Santa Clara, CA 95054
Attention: Gideon Wertheizer, President
-------------------------------------
Fax No.: 408-986-4323
-------------------------------------
42
or to such other person or address as any party shall specify by notice in
writing to the other party. All such notices, requests, demands, waivers and
communications shall be deemed to have been received on the date on which hand
delivered, upon transmission of the facsimile transmission by the sender and
issuance by the transmitting machine of a confirmation slip confirming that the
number of pages constituting the notice have been transmitted without error, or
on the third business day following the date on which so mailed, except for a
notice of change of address, which shall be effective only upon receipt
thereof. In the case of a notice sent by facsimile transmission, the sender
shall contemporaneously mail a copy of the notice to the addressee at the
address provided for above. However, such mailing shall in no way alter the
time at which the facsimile notice is deemed received. In no event shall the
provision of notice pursuant to this Section 11.5 constitute notice for service
of process.
11.6. Severability. If any provision of this Agreement, any Ancillary
Agreement or the Tax Indemnification Agreement or the application thereof to
any Person or circumstance is determined by a court of competent jurisdiction
to be invalid, void or unenforceable, the remaining provisions hereof or
thereof, or the application of such provision to Persons or circumstances or in
jurisdictions other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated hereby or thereby, as the case may
be, is not affected in any manner adverse to any party. Upon such
determination, the parties shall negotiate in good faith in an effort to agree
upon such a suitable and equitable provision to effect the original intent of
the parties.
11.7. Force Majeure. No party shall be deemed in default of this Agreement,
any Ancillary Agreement or the Tax Indemnification Agreement to the extent that
any delay or failure in the performance of its obligations under this
Agreement, any Ancillary Agreement or the Tax Indemnification Agreement results
from any cause beyond its reasonable control and without its fault or
negligence, such as acts of God, acts of civil or military authority,
embargoes, epidemics, war, riots, insurrections, fires, explosions,
earthquakes, floods, unusually severe weather conditions, labor problems or
unavailability of parts, or, in the case of computer systems, any failure in
electrical or air conditioning equipment. In the event of any such excused
delay, the time for performance shall be extended for a period equal to the
time lost by reason of the delay.
11.8. Publicity. Prior to the Distribution, each of Ceva, Inc. and DSPGI
shall consult with each other prior to issuing any press releases or otherwise
making public statements with respect to the Separation and the Distribution or
any of the other transactions contemplated hereby and prior to making any
filings with any Governmental Authority with respect thereto.
11.9. Expenses. Except as expressly set forth in this Agreement (including
Section 3.1(h) hereof) or in any Ancillary Agreement or in the Tax
Indemnification Agreement, whether or not the Distribution is consummated, each
party hereto shall bear its own respective third party fees, costs and expenses
paid or incurred in connection with the Distribution.
11.10. Headings. The article, section and paragraph headings in this
Agreement and in the Ancillary Agreements and the Tax Indemnification Agreement
are for reference purposes
43
only and shall not affect in any way the meaning or interpretation of this
Agreement, any Ancillary Agreement or the Tax Indemnification Agreement.
11.11. Waivers of Default. Waiver by any party of any default by the other
party of any provision of this Agreement, any Ancillary Agreement or the Tax
Indemnification Agreement shall not be deemed a waiver by the waiving party of
any subsequent or other default, nor shall it prejudice the rights of the other
party.
11.12. Specific Performance. In the event of any actual or threatened
default in, or breach of, any of the terms, conditions and provisions of this
Agreement, any Ancillary Agreement or the Tax Indemnification Agreement, the
party or parties who are or are to be thereby aggrieved shall have the right to
specific performance and injunctive or other equitable relief of its rights
under this Agreement, such Ancillary Agreement or the Tax Indemnification
Agreement, in addition to any and all other rights and remedies at law or in
equity, and all such rights and remedies shall be cumulative. The parties agree
that the remedies at law for any breach or threatened breach, including
monetary damages, are inadequate compensation for any loss and that any defense
in any action for specific performance that a remedy at law would be adequate
is waived. Any requirements for the securing or posting of any bond with such
remedy are waived.
11.13. Amendments. No provisions of this Agreement, any Ancillary Agreement
or the Tax Indemnification Agreement shall be deemed waived, amended,
supplemented or modified by any party, unless such waiver, amendment,
supplement or modification is in writing and signed by the authorized
representative of the party against whom it is sought to enforce such waiver,
amendment, supplement or modification.
11.14. Interpretation. Words in the singular shall be held to include the
plural and vice versa and words of one gender shall be held to include the
other genders as the context requires. The terms "hereof," "herein," and
"herewith" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement (or the applicable Ancillary Agreement or
the Tax Indemnification Agreement) as a whole (including all of the Schedules,
Exhibits and Appendices hereto and thereto) and not to any particular provision
of this Agreement (or such Ancillary Agreement or the Tax Indemnification
Agreement). Article, Section, Exhibit, Schedule and Appendix references are to
the Articles, Sections, Exhibits, Schedules and Appendices to this Agreement
(or the applicable Ancillary Agreement) unless otherwise specified. The word
"including" and words of similar import when used in this Agreement (or the
applicable Ancillary Agreement or the Tax Indemnification Agreement) shall mean
"including, without limitation," unless the context otherwise requires or
unless otherwise specified. The word "or" shall not be exclusive.
44
The parties have caused this Agreement to be executed by their duly
authorized representatives.
DSP GROUP, INC.
By: /s/ Eliyahu Ayalon
------------------------------
Eliyahu Ayalon
-------------------------
Chief Executive Officer
-------------------------
DSP GROUP LTD.
By: /s/ Moshe Zelnik
------------------------------
Name: Moshe Zelnik
-------------------------
Title: V.P. Finance & CFO
-------------------------
CEVA INC.
By: /s/ Yaniv Arieli
------------------------------
Yaniv Arieli
-------------------------
Chief Financial Officer
-------------------------
DSP CEVA, INC.
By: /s/ Gideon Wertheizer
------------------------------
Gideon Wertheizer
-------------------------
Chief Executive Officer
-------------------------
CORAGE, LTD.
By: /s/ Moshe Zelnik
------------------------------
Name: Moshe Zelnik
-------------------------
Title: V.P. Finance & CFO
-------------------------
45