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EXHIBIT 2.3
*** TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4),
200.83 AND 240.24b-2
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement (this "Amendment") is
dated as of February 20, 2000 (the "Effective Date"), and is entered into by and
among QUALCOMM Incorporated, a Delaware corporation ("Seller"), Kyocera Wireless
Corp., a Delaware corporation formerly known as KII Acquisition Company
("Purchaser"), and Kyocera International, Inc., a California corporation
("Parent Corporation"), with reference to the following facts:
RECITALS
A. Seller, Purchaser and Parent Corporation have entered into that
certain Asset Purchase Agreement, dated as of December 22, 1999, by and among
Seller, Purchaser and Parent Corporation (including the exhibits and Disclosure
Schedule attached thereto, the "Purchase Agreement"); and
B. Seller, Purchaser and Parent Corporation desire to amend the Purchase
Agreement and the related Disclosure Schedule in certain respects as set forth
herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants set forth herein, and intending to be legally bound
hereby, Seller, Purchaser and Parent Corporation hereby agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms used but not defined herein
are used as defined in the Purchase Agreement.
SECTION 2. AMENDMENTS TO PURCHASE AGREEMENT. The Purchase Agreement is
hereby amended as follows:
(a) CERTAIN PERSONAL COMPUTERS. The definition of the term "Closing
Statement Credits" is hereby amended by deleting all of clause
"(a)," and re-lettering clauses "(b)" and "(c)" as clauses "(a)"
and "(b)," respectively. The first parenthetical in Section
2.1(a)(v) of the Purchase Agreement is hereby deleted. Section
2.1(b)(xiv) of the Purchase Agreement is hereby amended by
deleting the words " the personal computers referenced in clause
"(a)" of the definition of Closing Statement Credits and". In
each place where the phrase "subparagraphs (a), (b) and (c) of
the definition of Closing Statement
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Credits" appears in Sections 2.7(a) and 2.7(b) of the Purchase
Agreement, such phrase shall be replaced with the phrase
"subparagraphs (a) and (b) of the definition of Closing
Statement Credits". Section 3.20 of the Purchase Agreement is
hereby amended by deleting the words " except for the personal
computers referenced in Section 2.1(b)(xiv)".
(b) PAYMENT OF PURCHASE PRICE; DELIVERY OF RECEIPT. Section 2.5 and
Section 2.6 of the Purchase Agreement are hereby amended to
provide that if the Closing Date is February 21, 2000, then (i)
the Purchase Price shall be paid by Buyer to Seller on February
22, 2000, and (ii) Seller shall deliver to Purchaser a receipt
for the Purchase Price as of the date such Purchase Price is
received.
(c) SELLING PARTIES. Exhibit A attached to the Purchase Agreement is
hereby amended by including as a Selling Party QUALCOMM Personal
Electronics, a California general partnership. Section 3.1 of
the Purchase Agreement is hereby amended to provide that, with
respect to each reference to a "Selling Party" as such reference
applies to QUALCOMM Personal Electronics, the representation and
warranty shall pertain to QUALCOMM Personal Electronics being a
general partnership and it having partnership authority. Section
7.2(e) of the Purchase Agreement is hereby amended to provide
that, (i) as to QUALCOMM Personal Electronics, a letter signed
by the general partners of QUALCOMM Personal Electronics
authorizing QUALCOMM Investment Company, Inc., as a general
partner, to execute and deliver, on behalf of QUALCOMM Personal
Electronics, all necessary documentation to be executed by
QUALCOMM Personal Electronics in order to consummate the
transaction contemplated by the Purchase Agreement, and (ii) as
to the other Selling Parties (other than Seller), the
certification may be by any officer or director of such Selling
Party or of the Assistant Secretary of Seller. Section 7.2(f) of
the Purchase Agreement is hereby amended to provide that, as to
the Selling Parties (other than Seller and QUALCOMM Personal
Electronics), the certification may be by any officer or
director of such Selling Party or of the Assistant Secretary of
Seller.
(d) SALES TAXES. Section 5.11(c) of the Purchase Agreement is hereby
amended to provide that Purchaser shall pay and be solely
responsible for all California sales taxes which become payable
as a result of the transactions contemplated by the Purchase
Agreement. Any other Taxes referenced in the first sentence of
Section 5.11(c) of the Purchase Agreement shall be shared
equally by Seller and Purchaser.
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(e) DISCLOSURE SCHEDULE. The definition of the term "Disclosure
Schedule" is hereby amended to add ", as amended" to the end of
such definition.
(f) PRORATIONS/ALLOCATION OF PURCHASE PRICE. Section 2.7(e) of the
Purchase Agreement is hereby amended to provide that the
determination and payment by the parties of expenses which are
subject to proration in accordance with Section 2.7(e) of the
Purchase Agreement shall be made as soon as reasonably possible
following the Closing but in any event no later than such time
as the Closing Statement of Net Assets is considered final,
binding and conclusive in accordance with the provisions of
Section 2.7. Section 2.8 of the Purchase Agreement is hereby
amended to provide that the initial allocation of the Purchase
Price among the Assets in accordance with Section 2.8 of the
Purchase Agreement shall be made as soon as reasonably possible
following the Closing but in any event no later than such time
as the Closing Statement of Net Assets is considered final,
binding and conclusive in accordance with the provisions of
Section 2.7.
(g) [...***...]
(h) FIRPTA CERTIFICATE. Section 7.2(k) of the Purchase Agreement is
hereby amended by deleting the words "each Selling Party" and
inserting in their place the word "Seller."
(i) BRAZIL RELATED LEGAL FEES. Seller and Purchaser agree to equally
share the cost and expenses of local Brazil legal counsel in
connection with (a) the negotiation and documentation of that
aspect of the sale of Assets by QUALCOMM do Brasil Ltda. ("QdB")
to Purchaser (or an Affiliate of Purchaser) which the parties
reasonably believe may require to be locally documented under
Brazilian law, and (b) the preparation and filing of any
necessary or appropriate documentation with the Brazil
Administrative Council for Economic Defense ("CADE").
(j) BRAZIL ASSET SALE. The parties acknowledge and agree that for
various business reasons, they prefer to transfer all Assets
owned by QdB (the "Brazil
* CONFIDENTIAL TREATMENT REQUESTED
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Assets") in a separate transaction, the terms and conditions of
which are not yet finalized. Accordingly, the parties hereby
agree that for purposes of the Closing under the Purchase
Agreement, the Brazil Assets shall constitute Excluded Assets
which will not be sold and purchased pursuant to the Purchase
Agreement; provided, however, all provisions of the Purchase
Agreement which by their terms would otherwise be applicable to
the sale and purchase of the Brazil Assets but for this
exclusion shall apply mutatis mutandis. The parties further
agree that $19,363,176, representing the attributable purchase
price (based on the methodology set forth in Section 2.7 of the
Purchase Agreement, and subject to adjustment as provided
therein) for the Brazil Assets (the "Brazil Purchase Price"),
shall be deducted from the aggregate Purchase Price paid by
Purchaser at Closing. Notwithstanding the foregoing, Purchaser
shall still assume, pursuant to the Assumption Agreement, the
Assumed Liabilities relating to that part of the Business which
is conducted by QdB (the "Brazil Liabilities"). Notwithstanding
anything to the contrary set forth in any documentation relating
to the sale and purchase of the Brazil Assets (the "Brazil
Purchase Documents"), in the event that QdB and Purchaser (or an
Affiliate of Purchaser) do subsequently consummate a sale and
purchase of the Brazil Assets, the provisions of the Purchase
Agreement (other than the specific provision referred to above)
shall apply equally to the Brazil Assets and the Brazil
Liabilities, as if such Assets and Liabilities were sold,
purchased, transferred and assumed under the Purchase Agreement
(including but not limited to the provisions in the Purchase
Agreement relating to representations, warranties, covenants and
agreements respecting Assets and Assumed Liabilities, and the
provisions of Section 2.7, Section 2.8, Article 4, Section 5.15,
Article 8 and Article 10). In the event of any conflict between
the Purchase Agreement, as amended pursuant to this Amendment,
and any Brazil Purchase Documents, the terms and provisions of
the Purchase Agreement, as amended by this Amendment, shall
govern. The parties agree to exercise reasonable best efforts to
consummate the purchase and sale of the Brazil Assets pursuant
to the Brazil Purchase Documents on or before February 25, 2000.
Payment of the Brazil Purchase Price shall be accompanied with a
payment of interest, calculated using the interest rate publicly
announced by Citibank, N.A. as its "reference rate," as such
rate may change from time to time (calculated using a year of
366 days), for each calendar day that occurs after February 21,
2000 until such day as the Brazil Assets are sold and purchased
pursuant to the Brazil Purchase Documents.
(k) CONFIDENTIALITY MATTERS. Section 2.1(a)(xii) of the Purchase
Agreement is hereby amended by adding the following
parenthetical at the end of such
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Section: "(including, without limitation, all rights of the
Seller against any employee of the Business with respect to
confidentiality and/or disclosure of Subscriber Business
Intellectual Property, whether pursuant to an agreement or
applicable law)."
(l) LICENSE. Section 5.7(a) of the Purchase Agreement is hereby
amended by inserting the words "support, have supported," after
the words "have made,".
SECTION 3. AMENDMENT OF DISCLOSURE SCHEDULE. Attached hereto as Exhibit
A are amendments to specified sections of the Disclosure Schedule, which
Disclosure Schedule shall be and is hereby amended to incorporate such
amendments.
SECTION 4. EFFECT OF AMENDMENT. Except as and to the extent expressly
modified by this Amendment, the Purchase Agreement and the Disclosure Schedule
shall remain in full force and effect in all respects. In the event of a
conflict between this Amendment and the Purchase Agreement or the Disclosure
Schedule, this Amendment shall govern. Upon the effectiveness of this Amendment,
each reference in the Purchase Agreement to "this Agreement," "hereunder,"
"herein," or words of like import, and each reference to the Purchase Agreement
in any Ancillary Agreement, Purchaser Document or Selling Party Document shall
mean and refer to the Purchase Agreement, as amended by this Amendment.
SECTION 5. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
SECTION 6. GOVERNING LAW. This Amendment shall be governed by the laws
of the State of California.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of
the Effective Date by their respective officers thereunto duly authorized.
QUALCOMM INCORPORATED KYOCERA INTERNATIONAL, INC.
By: /s/ RICHARD SULPIZIO By: /s/ RODNEY N. LANTHORNE
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Name: Richard Sulpizio Name: Rodney N. Lanthorne
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Title: President Title: President
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WITNESS: KYOCERA WIRELESS CORP.
/s/ PAUL SYROWIK By: /s/ RODNEY N. LANTHORNE
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Name: Rodney N. Lanthorne
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Title: President
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WITNESS:
/s/ ERIC G. KLEIN
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[Signature page to First Amendment to Asset Purchase Agreement]