\n 11.7 Entire Agreement; Amendments and Waivers……………………………………… 43
\n —————————————-
\n 11.8 Counterparts………………………………………………………………. 44
\n ————
\n 11.9 Invalidity………………………………………………………………… 44
\n ———-
\n 11.10 Headings; Interpretation……………………………………………………. 44
\n ————————
\n 11.11 Publicity…………………………………………………………………. 44
\n ———
\n<\/c><\/s><\/table>\n iv<\/p>\n
DISCLOSURE SCHEDULE<\/p>\n
EXHIBITS<\/p>\n
Exhibit A — Persons Having Knowledge
\nExhibit B — Financing Schedule
\nExhibit C — Shareholders’ Agreement<\/p>\n
v<\/p>\n
RECAPITALIZATION AGREEMENT
\n ————————–<\/p>\n
This Recapitalization Agreement, dated as of May 21, 2000, is by and
\nbetween BraveTwo Acquisition, L.L.C., a Delaware limited liability company
\n(“LLC”), Advanced Micro Devices, Inc., a Delaware corporation (“AMD”), and
\n — —
\nBoldCo, Inc., a California corporation and wholly-owned subsidiary of AMD (the
\n“Company”).
\n ——- <\/p>\n
RECITALS
\n ——–<\/p>\n
A. AMD owns all of the issued and outstanding capital stock of the
\nCompany.<\/p>\n
B. At the Closing (as defined below), the Company will enter into the
\nsenior secured loan agreement by and between the Company and Morgan Stanley
\nSenior Funding, Inc. (the “Senior Secured Lender”) providing for a senior
\n ———————
\nsecured term loan to the Company of $150 million (the “Senior Secured Loan”).
\n ——————- <\/p>\n
C. At the Closing, LLC will purchase from AMD 90,000,000 shares of
\ncommon stock (the “Common Stock”) and 125,000 shares of Preferred Stock for
\n ————
\naggregate consideration of $280 million.<\/p>\n
D. At the Closing, the Company shall redeem from AMD 55,162,002
\nshares of the Common Stock for aggregate consideration of $95 million (the
\n“Redemption”).
\n ———- <\/p>\n
E. It is the intent of the parties to this Agreement that the sum of
\nthe Stock Purchase Price and the Redemption Price shall be $375 million.<\/p>\n
F. It is intended that the transactions contemplated hereby be
\nrecorded as a recapitalization of the Company for financial reporting purposes.<\/p>\n
AGREEMENT<\/p>\n
NOW, THEREFORE, in consideration of the foregoing and the mutual
\ncovenants and agreements herein contained, and intending to be legally bound
\nhereby, AMD, LLC and the Company hereby agree as follows:<\/p>\n
ARTICLE I.
\n DEFINITIONS<\/p>\n
1.1 Defined Terms. As used herein, the terms below shall have the
\n ————-
\nfollowing meanings:<\/p>\n
“Action” shall have the meaning ascribed to such term in the
\n ——
\nReorganization Agreement.<\/p>\n
“Administrative Services Agreement” shall mean the Administrative
\n ———————————
\nServices Agreement between AMD and the Company, to be dated as of the Closing
\nDate.<\/p>\n
“Affiliate” shall have the meaning ascribed to such term in the
\n ———
\nReorganization Agreement.<\/p>\n
“Agreement” shall mean this Recapitalization Agreement, together with
\n ———
\nthe Disclosure Schedule and all exhibits referenced herein.<\/p>\n
“Ancillary Agreements” shall mean the Administrative Services
\n ——————–
\nAgreement, Wafer Fabrication Agreement, Assembly, Test, Mark and Pack Agreement,
\nIntellectual Property Cross-License Agreement, Patent Assignment Agreement,
\nReorganization Agreement and Shareholders’ Agreement.<\/p>\n
“Applicable Law” or “Applicable Laws” shall have the meaning ascribed
\n ————– —————
\nto such terms in the Reorganization Agreement.<\/p>\n
“Assembly, Test, Mark and Pack Agreement” shall mean the Assembly,
\n —————————————
\nTest, Mark and Pack Agreement between AMD and the Company, to be dated as of the
\nClosing Date.<\/p>\n
“Assumed Liabilities” shall have the meaning ascribed to such term in
\n ——————-
\nthe Reorganization Agreement.<\/p>\n
“Business” shall have the meaning ascribed to such term in the
\n ——–
\nReorganization Agreement.<\/p>\n
“Business Day” shall mean any day other than a Saturday, a Sunday or a
\n ————
\nday on which banking institutions in San Francisco, California are authorized or
\nobligated by law or executive order to be closed.<\/p>\n
“Code” shall mean the Internal Revenue Code of 1986, as it may be
\n —-
\namended from time to time.<\/p>\n
2<\/p>\n
“Confidentiality Agreement” shall mean the confidentiality agreement
\n ————————-
\ndated October 11, 1999, between AMD and LLC.<\/p>\n
“Contract” shall have the meaning ascribed to such term in the
\n ——–
\nReorganization Agreement.<\/p>\n
“CPD Assets” shall have the meaning ascribed to such term in the
\n ———-
\nReorganization Agreement.<\/p>\n
“CPD Books and Records” shall have the meaning ascribed to such term
\n ———————
\nin the Reorganization Agreement.<\/p>\n
“CPD Employees” shall mean all employees of AMD who upon Closing will
\n ————-
\nbe employed by the Company and any Inactive Employee, International Employee or
\nVisa Employee.<\/p>\n
“CPD Intellectual Property” shall have the meaning ascribed to such
\n ————————-
\nterm in the Reorganization Agreement.<\/p>\n
“CPD Inventory” shall have the meaning ascribed to such term in the
\n ————-
\nReorganization Agreement.<\/p>\n
“CPD Patents” shall have the meaning ascribed to such term in the
\n ———–
\nReorganization Agreement.<\/p>\n
“Disclosure Schedule” shall mean a schedule attached hereto and
\n ——————-
\ndelivered by AMD to LLC which sets forth exceptions to the representations and
\nwarranties contained in Article III hereof and certain other information called
\nfor by Article III hereof and other provisions of this Agreement.<\/p>\n
“Encumbrance” shall have the meaning ascribed to such term in the
\n ———–
\nReorganization Agreement.<\/p>\n
“ERISA” shall mean the Employee Retirement Income Security Act of
\n —–
\n1974, as amended.<\/p>\n
“ERISA Affiliate” of any Person means any other Person that, together
\n —————
\nwith such Person, would be treated as a single employer under Section 414 of the
\nCode.<\/p>\n
“Financial Statements” shall mean the unaudited balance sheet as at,
\n ——————–
\nand the unaudited income statement for the year ending, December 26, 1999 of the
\nBusiness.<\/p>\n
“Form 10-K” shall mean AMD’s Annual Report on Form 10-K of for the
\n ———
\nfiscal year ended December 26, 1999.<\/p>\n
“GAAP” shall mean United States generally accepted accounting
\n —-
\nprinciples.<\/p>\n
3<\/p>\n
“Governmental Authority” shall have the meaning ascribed to such term
\n ———————-
\nin the Reorganization Agreement.<\/p>\n
“HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act
\n ——-
\nof 1976, as amended, and all applicable regulations promulgated thereunder.<\/p>\n
“Inactive Employee” shall have the meaning ascribed to such term in
\n —————–
\nthe Reorganization Agreement.<\/p>\n
“Indebtedness for Borrowed Money” of any Person shall mean, at any
\n ——————————-
\ndate, without duplication, (i) all obligations of such Person for borrowed
\nmoney, (ii) all obligations of such Person, properly recordable under GAAP as a
\nliability on the financial statements of such Person, evidenced by bonds,
\ndebentures, notes, or other similar instruments, (iii) all Indebtedness for
\nBorrowed Money (as defined in clauses (i) and (ii) above) of others secured by a
\nlien on any asset of such Person, whether or not such Indebtedness for Borrowed
\nMoney is assumed by such Person, and (iv) all Indebtedness for Borrowed Money
\n(as defined in clauses (i) and (ii) above) of others guaranteed by such Person.<\/p>\n
“Intellectual Property” shall have the meaning ascribed to such term
\n ———————
\nin the Reorganization Agreement.<\/p>\n
“Intellectual Property Cross-License Agreement” shall mean the
\n ———————————————
\nIntellectual Property Cross-License Agreement between AMD and the Company, to be
\ndated as of the Closing Date.<\/p>\n
“Intellectual Property Laws” shall mean all Applicable Laws that
\n ————————–
\nrelate to or impose liability for infringement, misappropriation, dilution,
\ndisparagement, unauthorized disclosure, or theft of: utility patents, design
\npatents, trademarks, service marks, trade names, trade dress, domain names,
\nlogos, business and product names, slogans, and registrations; copyrights; mask
\nworks; inventions, processes, designs, formulae, trade secrets or know-how.<\/p>\n
“Intellectual Property Liabilities” shall mean any Liabilities related
\n ———————————
\nto products sold by AMD prior to the Closing Date, arising in connection with
\nthe Business or the CPD Assets, which arise under or relate to any Intellectual
\nProperty Laws.<\/p>\n
“International Employee” shall have the meaning ascribed to such term
\n ———————-
\nin the Reorganization Agreement.<\/p>\n
“Knowledge” shall mean, with respect to any Person, actual knowledge
\n ———
\nof any employee of such Person who is specified on Exhibit A hereto.<\/p>\n
“Liabilities” shall have the meaning ascribed to such term in the
\n ———–
\nReorganization Agreement.<\/p>\n
“Losses” shall mean, in respect of any obligation to indemnify any
\n ——
\nPerson pursuant to Section 10.2(a) of this Agreement or the determination of the
\nlimitations on liability <\/p>\n
4<\/p>\n
set forth in Section 10.3 of this Agreement, any and all actual losses, damages,
\nliabilities, obligations, judgments, settlements, awards, and offsets which the
\nIndemnified Party may suffer or incur (together, “Damages”), and reasonable out-
\n ——-
\nof-pocket costs, expenses and attorneys’ fees relating to Damages (including any
\nsuch reasonable costs, expenses and attorneys’ fees incurred in enforcing such
\nright of indemnification against any Indemnifying Party or with respect to any
\nappeal) and penalties, if any, but shall not include (a) any such amounts for
\nwhich a reserve or allowance was recorded in the Audited Financial Statements or
\n(b) incidental, indirect or consequential damages or damages for lost profits,
\nother than any such incidental, indirect or consequential damages or damages for
\nlost profits claimed by any third party against any indemnified party pursuant
\nto Article X.<\/p>\n
“Material Adverse Effect” shall mean a material adverse effect on the
\n ———————–
\nBusiness, other than any such effect resulting from (a) an adverse trend or
\ntrends in the market for the Company’s products or the integrated circuit
\nindustry as a whole or (b) general economic conditions.<\/p>\n
“Patent Assignment Agreement” shall mean the Patent Assignment
\n —————————
\nAgreement between AMD and the Company, to be dated as of the Closing Date.<\/p>\n
“Permits” shall have the meaning ascribed to such term in the
\n ——-
\nReorganization Agreement.<\/p>\n
“Permitted Encumbrances” shall have the meaning ascribed to such term
\n ———————-
\nin the Reorganization Agreement.<\/p>\n
“Person” shall have the meaning ascribed to such term in the
\n ——
\nReorganization Agreement.<\/p>\n
“Preferred Stock” shall mean the Company’s Series A Preferred Stock,
\n —————
\nno par value per share.<\/p>\n
“Reasonable Efforts” shall have the meaning ascribed to such term in
\n ——————
\nthe Reorganization Agreement.<\/p>\n
“Redemption Price” shall mean $95,000,000.
\n —————- <\/p>\n
“Reorganization Agreement” shall mean the Reorganization Agreement
\n ————————
\ndated as of the date hereof between AMD and the Company.<\/p>\n
“Retained Liabilities” shall have the meaning ascribed to such term in
\n ——————–
\nthe Reorganization Agreement.<\/p>\n
“Shareholders’ Agreement” shall mean the Shareholders’ Agreement among
\n ———————–
\nAMD, LLC and the Company, to be dated as of the Closing Date, in the form
\nattached hereto as Exhibit C.<\/p>\n
“Signing Date” shall mean the date of this Agreement.
\n ———— <\/p>\n
5<\/p>\n
“Wafer Fabrication Agreement” shall mean the Wafer Fabrication
\n —————————
\nAgreement between AMD and the Company, to be dated as of the Closing Date.<\/p>\n
“Visa Employee” shall have the meaning ascribed to such term in the
\n ————-
\nReorganization Agreement.<\/p>\n
1.2 Other Defined Terms. The following terms shall have the meanings
\n ——————-
\ndefined for such terms in the Sections set forth below:<\/p>\n
Term Section
\n —- ——-<\/p>\n
AMD Preamble
\n AMD Indemnified Parties 10.2(a)
\n AMD Saving Plan 8.4(f)(i)
\n Audited Financial Statements 7.8
\n Balance Sheet 3.15
\n Claim 10.2(b)
\n Claim Notice 10.2(b)
\n Closing 2.4
\n Closing Date 2.4
\n COBRA 8.4(m)
\n Common Stock Recitals
\n Company Preamble
\n Company Affiliated Group 3.13(a)
\n Company DC Plan 8.4(f)(ii)
\n Consent Payments 5.4
\n Contract Consents 5.4
\n Financing 4.6
\n Financing Commitments 4.6
\n Hire Date 8.4(a)
\n Indemnified Party 10.2(b)
\n Indemnifying Party 10.2(b)
\n Leased Personal Property 3.14(c)
\n LLC Preamble
\n LLC Indemnified Parties 10.2(a)
\n Material Contracts 3.5(a)
\n Owned Personal Property 3.14(a)
\n Placement Agent Recitals
\n Plans and Programs 3.12(b)
\n Post-Closing Periods 9.1(c)
\n Pre-Closing Periods 9.1(b)
\n Property Taxes 9.1(c)
\n Purchased Common Shares 2.2
\n Purchased Preferred Shares 2.2
\n Redeemed Common Shares 2.3<\/p>\n
6<\/p>\n
Term Section
\n —- ——-<\/p>\n
Redemption Recitals
\n Required Consents 3.5(b)
\n Securities Act 4.9(a)
\n Senior Secured Lender Recitals
\n Senior Secured Loan Recitals
\n Stock Purchase Price 2.2
\n Straddle Periods 9.1(c)
\n Structuring 5.11
\n Survival Period 10.1
\n Tax 3.13(a)
\n Tax Claim 9.2
\n Tax Loss 9.2
\n Tax Returns 3.13(a)
\n Taxpayers 3.13(a)
\n Third-Party Claim 10.2(b)
\n Transfer Taxes 11.4
\n Transferred Employees 8.4(a)
\n WARN Act 4.7<\/p>\n
7<\/p>\n
ARTICLE II.
\n REORGANIZATION, RECAPITALIZATION AND REDEMPTION<\/p>\n
2.1 Reorganization Agreement. AMD has heretofore operated the Business.
\n ————————
\nPrior to the execution of this Agreement, AMD and the Company have entered into
\nthe Reorganization Agreement pursuant to which (i) AMD will transfer to the
\nCompany the CPD Assets not previously transferred to the Company and (ii) the
\nCompany is being reorganized as set forth in the Reorganization Agreement. Upon
\nconsummation of all of the transactions contemplated under the Reorganization
\nAgreement, the Business shall be owned and conducted by the Company.<\/p>\n
2.2 Sale of the CPD Shares by AMD. Subject to the terms and conditions
\n —————————–
\nof this Agreement, at the Closing, AMD shall sell to LLC, and LLC shall purchase
\nfrom AMD, 90,000,000 shares of the Common Stock (the “Purchased Common Shares”)
\n ———————–
\nand 125,000 shares of the Preferred Stock (the “Purchased Preferred Shares”),
\n ————————–
\nfree and clear of all Encumbrances. The purchase price to be paid by LLC for
\nsuch shares shall be an aggregate of $280,000,000 (the “Stock Purchase Price”).
\n ——————– <\/p>\n
2.3 The Redemption. Subject to the terms and conditions of this
\n ————–
\nAgreement, at the Closing, AMD shall sell to the Company, and the Company shall
\nrepurchase from AMD, 55,162,202 shares of the Common Stock (the “Redeemed Common
\n —————
\nShares”), free and clear of all Encumbrances, for the Redemption Price.
\n——<\/p>\n
2.4 Payment of Creditors. At the Closing, AMD shall provide LLC with an
\n ——————–
\nestimate of accounts payable, sales commissions and royalties, in each case
\nwhich constitute Assumed Liabilities, of the Business as of the Closing Date,
\nand LLC shall provide AMD with a letter of credit in an amount equal to the
\naggregate of such estimate of accounts payable, sales commissions and royalties,
\nwhich AMD will be able to draw upon to pay off each such liability that is not
\npaid by the Company when such liability is due. Upon payment of all accounts
\npayable, sales commissions and royalties the letter of credit shall terminate.<\/p>\n
2.5 Closing. The Closing of the transactions contemplated herein (the
\n ——-
\n“Closing”) shall be held at 7:00 a.m., San Francisco City time, as soon as
\n ——-
\npracticable following the satisfaction or waiver of all of the conditions to
\nClosing set forth in Articles VI and VII hereof but no earlier than July 22,
\n2000 unless otherwise agreed by the parties hereto (the “Closing Date”) at the
\n ————
\noffices of Latham & Watkins, 135 Commonwealth Drive, Menlo Park, California.<\/p>\n
2.6 Conveyances at Closing.
\n ———————- <\/p>\n
(a) AMD and the Company Deliveries. To effect the transactions
\n ——————————
\ncontemplated hereby, at the Closing, AMD and the Company will deliver or cause
\nto be delivered to LLC:<\/p>\n
8<\/p>\n
(i) a complete set of all documents in connection with the
\n consummation of the transactions contemplated by the Reorganization
\n Agreement;<\/p>\n
(ii) the resignation of all directors of the Company;<\/p>\n
(iii) stock certificates representing the Purchased Common Shares and
\n the Purchased Preferred Shares; and<\/p>\n
(iv) such other instruments, documents and certificates as LLC or
\n its counsel may reasonably request to implement the transactions
\n contemplated hereby.<\/p>\n
(b) LLC Deliveries. To effect the transactions contemplated hereby, at
\n ————–
\n the Closing, LLC will deliver or cause to be delivered to AMD:<\/p>\n
(i) the payment of the Stock Purchase Price by wire transfer in
\n immediately available funds; and<\/p>\n
(ii) such other instruments, documents and certificates as AMD or
\n its counsel may reasonably request to implement the transactions
\n contemplated hereby.<\/p>\n
(c) AMD Deliveries. To effect the transactions contemplated hereby, at
\n ————–
\nthe Closing, AMD will deliver to the Company duly endorsed stock certificates
\nrepresenting the Redeemed Common Shares.<\/p>\n
(d) Company Deliveries. To effect the transactions contemplated hereby,
\n ——————
\nat the Closing, the Company will deliver to AMD the payment of the Redemption
\nPrice by wire transfer in immediately available funds.<\/p>\n
(e) Form of Instruments. To the extent that a form of any document to be
\n ——————-
\ndelivered hereunder is not attached as an Exhibit hereto or to the
\nReorganization Agreement, such documents shall be in form and substance, and
\nshall be executed and delivered in a manner, reasonably satisfactory to LLC, the
\nCompany and AMD.<\/p>\n
(f) Other Items. LLC and AMD shall deliver the other items described in
\n ———–
\nArticles VI and VII.<\/p>\n
ARTICLE III.
\n REPRESENTATIONS AND WARRANTIES OF AMD<\/p>\n
To induce LLC to enter into this Agreement, AMD hereby makes the following
\nrepresentations and warranties to LLC, except as otherwise set forth on the
\nDisclosure Schedule. Except for representations and warranties contained in this
\nArticle III, AMD makes no representations, express or implied, written or oral,
\nwith respect to AMD, the Company, the Business, the CPD Assets or otherwise.
\nWithout limiting the generality of the foregoing sentence, AMD makes no
\nrepresentation or warranty to LLC with respect to: (a) any projections,
\nestimates or budgets (or the likelihood of such projections, estimates or
\nbudgets being achieved) of future revenues, expenses, expenditures, results of
\noperations of or other matters related to the
\n 9<\/p>\n
Business or the Company; or (b) except as expressly covered by a representation
\nand warranty contained in this Article III, any other information or documents
\n(financial or otherwise) made available to LLC or its counsel, accountants or
\nadvisors with respect to the Company, the Business and\/or the CPD Assets. For
\npurposes of the following representations and warranties, references to AMD
\nshall be deemed to include the Company, as applicable, with respect to the CPD
\nAssets and Assumed Liabilities being transferred as described in the
\nReorganization Agreement.<\/p>\n
3.1 Organization of AMD and the Company. AMD is duly incorporated and
\n ———————————–
\nvalidly existing as a corporation in good standing under the laws of the State
\nof Delaware and has full corporate power and corporate authority to conduct the
\nBusiness as it is presently being conducted and to own and lease the properties
\nand assets of the Business. The Company is duly incorporated and validly
\nexisting as a corporation in good standing under the laws of the State of
\nCalifornia and has full corporate power and corporate authority to own and lease
\nits properties and assets.<\/p>\n
The Company is, or prior to the Closing will be, duly qualified to do
\nbusiness and is, or prior to the Closing will be, in good standing (or the
\nequivalent thereof) in each jurisdiction in the United States where the
\ncharacter of the properties owned or leased or the nature of the activities
\nconducted by the Company make such qualification necessary, except where the
\nfailure to be so qualified or in good standing will not have a Material Adverse
\nEffect. The Company does not own any securities or any other direct or indirect
\ninterest in any Person.<\/p>\n
3.2 Authorization. Each of AMD and the Company has the corporate power
\n ————-
\nand corporate authority to execute and deliver this Agreement and each of the
\nAncillary Agreements to which it is a party and to consummate the transactions
\ncontemplated hereby and thereby, and all requisite corporate action has been
\ntaken by each of AMD and the Company to authorize the execution, delivery and
\nperformance of this Agreement and each of the Ancillary Agreements to which it
\nis a party. This Agreement has been duly executed and delivered by each of AMD
\nand the Company and, assuming the due authorization, execution and delivery of
\nthis Agreement by LLC, is a valid and binding obligation of each of AMD and the
\nCompany, enforceable against each of AMD and the Company in accordance with its
\nterms, except as the foregoing may be limited by bankruptcy, insolvency,
\nreorganization, moratorium or other similar laws now or hereafter in effect
\nrelating to or affecting the rights or remedies of creditors, general principles
\nof equity (whether considered in an action at law or in equity) and the
\ndiscretion of the court before which any proceeding therefor may be brought.<\/p>\n
3.3 Intellectual Property.
\n ——————— <\/p>\n
(a) AMD owns, or is licensed or otherwise possesses legally enforceable
\nrights to transfer and use, all copyrights, copyright registrations, mask works
\n(registered and fixed but unregistered), trademarks, trade names and know how
\nmaterial to the operation of the Business as currently conducted. AMD owns the
\nCPD Patents, free and clear of all material Encumbrances. AMD has taken
\ncommercially reasonable measures to maintain the validity and enforceability of
\nthe CPD Patents in all material respects, including payment of all required
\nfees. <\/p>\n
10<\/p>\n
To the Knowledge of AMD, no material judicial or administrative proceeding of
\nany kind is pending or has been threatened against AMD involving (a) the
\nownership, validity, enforceability, infringement, misuse or misappropriation of
\nany CPD Patents or (b) the ownership, validity, enforceability, misuse, theft,
\nunauthorized use, disclosure or misappropriation of any CPD Intellectual
\nProperty. AMD has no Knowledge of the infringement or misappropriation of the
\nCPD Patents by a third party. AMD has not received written notice of any
\nmaterial infringement or material liability for the use of intellectual property
\nrights of others with respect to the CPD Intellectual Property within the last
\nthree (3) years. AMD has not granted any license or right to use, option,
\nrelease or covenant not to sue or non-assertion assurance to any third person
\nwith respect to, or granted any outstanding lien or security interest in, any of
\nthe CPD Patents where such action would have a Material Adverse Effect.<\/p>\n
(b) Section 3.3(b) of the Disclosure Schedule sets forth all material
\nregistered trademarks and service marks used by AMD in the Business as currently
\nconducted.<\/p>\n
(c) Section 3.3(c) of the Disclosure Schedule sets forth all material
\nunregistered trademarks, service marks, trade dress, and\/or trade names used by
\nAMD in the Business as currently conducted.<\/p>\n
(d) Section 3.3(d) of the Disclosure Schedule sets forth all material
\nregistered copyrights used by AMD in the Business as currently conducted.<\/p>\n
(e) Section 3.3(e) of the Disclosure Schedule sets forth all material
\nregistered mask works used by AMD in the Business as currently conducted.<\/p>\n
(f) Section 3.3(f) of the Disclosure Schedule sets forth all material
\nregistered domain names used by AMD in the Business as currently conducted.<\/p>\n
(g) To the Knowledge of AMD, no judicial or administrative proceeding of
\nany kind is pending or has been threatened against AMD with respect to the
\nBusiness involving rights to Intellectual Property of any third party. AMD has
\nnot received written notification of any infringement or liability of any kind
\nrelating to rights to Intellectual Property or patents of others with respect to
\nthe operation of the Business within the last three (3) years. AMD has no
\nKnowledge of infringement of the Intellectual Property or patents of others with
\nrespect to the operation of the Business.<\/p>\n
(h) AMD will maintain the confidentiality of any trade secrets transferred
\nto the Company and impose the same non-disclosure and confidentiality
\nobligations and processes used by AMD to maintain the confidentiality of AMD
\ntrade secrets.<\/p>\n
3.4 Absence of Certain Changes or Events. Since December 26, 1999, the
\n ————————————
\nBusiness has been conducted in the ordinary course of business and there has not
\nbeen any: <\/p>\n
(a) significant adverse change in the CPD Assets (including, without
\nlimitation, writing down the value of inventory or writing off notes or accounts
\nreceivable), the Assumed Liabilities, or in the financial condition or results
\nof operations of the Business, except <\/p>\n
11<\/p>\n
for (i) changes in the ordinary course of business and consistent with past
\npractice or (ii) changes contemplated hereby or relating to the transactions
\ncontemplated hereby;<\/p>\n
(b) sale, assignment or transfer of any CPD Asset which is material to the
\nBusiness, other than in the ordinary course of business;<\/p>\n
(c) capital expenditures or the incurrence of liability therefor by AMD
\ninvolving payments in excess of $1,000,000 individually or $5,000,000 in the
\naggregate on behalf of the Business;<\/p>\n
(d) material physical damage, destruction or loss (whether or not covered
\nby insurance) affecting any CPD Assets;<\/p>\n
(e) any cancellation, expiration, non-renewal or waiver of any right under
\nany Material Contract or material Permit, except in the ordinary course of
\nbusiness,<\/p>\n
(f) mortgage or pledge of, or any Encumbrance (other than Permitted
\nEncumbrances) placed on, any CPD Assets; or<\/p>\n
(g) any other fact, event or condition of any character that will have, or
\nwould reasonably be expected to have, a Material Adverse Effect or would
\nreasonably be expected to materially disrupt, interrupt, prevent or impair the
\nconduct of the Business.<\/p>\n
3.5 Contracts and Commitments.
\n ————————- <\/p>\n
(a) Section 3.5(a) of the Disclosure Schedule sets forth a complete list of
\neach of the following Contracts as of the date hereof (collectively, the
\n“Material Contracts”):
\n —————— <\/p>\n
(i) CPD Contract creating any partnership;<\/p>\n
(ii) CPD Contract (including purchase orders, franchise agreements
\n and undertakings or commitments to any governmental or regulatory
\n authority) not made in the ordinary course of business;<\/p>\n
(iii) Contracts of employment with CPD Employees (including without
\n limitation employment, change in control, golden parachute, severance or
\n similar agreements or arrangements and other CPD Contracts with CPD
\n Employees) and contracts for consulting services;<\/p>\n
(iv) CPD Contracts consisting of sales commitments for integrated
\n circuit products in excess of $100,000;<\/p>\n
(v) any other CPD Contract involving payments by AMD in excess of
\n $250,000 annually that are not cancelable on 30-days’ notice by AMD,
\n without payment of penalty or premium;<\/p>\n
12<\/p>\n
(vi) CPD Contract relating to, or evidences of, or guarantees of,
\n or providing security for, Indebtedness for Borrowed Money;<\/p>\n
(vii) material distribution, or similar contract relating to or
\n providing for the marketing and\/or distribution of the products of the
\n Business to which AMD is a party or by which AMD is bound;<\/p>\n
(viii) CPD Contract containing a covenant limiting the freedom of AMD
\n to engage in the Business or the transactions contemplated by the Ancillary
\n Agreements or to compete with any Person;<\/p>\n
(ix) Licenses by AMD of third-party Intellectual Property material
\n to the Business; or<\/p>\n
(x) Any other CPD Contract required by applicable law to be filed
\n by AMD with the U.S. Securities and Exchange Commission.<\/p>\n
(b) All of the Material Contracts on Section 3.5(a) of the Disclosure
\nSchedule as of the date hereof are in full force and effect and constitute the
\nlegal, valid and binding obligations of AMD and, to the Knowledge of AMD, of the
\nother parties thereto (except, in each case, as may be limited by bankruptcy,
\nreorganization, insolvency and similar laws of general application relating to
\nor affecting the enforcement of rights of creditors or the relief of debtors),
\nand to the Knowledge of AMD, no condition exists or event, act or omission has
\noccurred which, with or without notice, or lapse of time or both, would
\nconstitute a default or a basis of force majeure or other claim of excusable
\ndelay or nonperformance thereunder. Except for the consents of parties listed
\non Section 3.5(b) of the Disclosure Schedule (the “Required Consents”), no
\n —————–
\nconsent of any party to the Material Contracts is required in connection with
\nthe transactions contemplated by this Agreement and the Reorganization
\nAgreement. No other party to any Material Contract has notified AMD of the
\nassertion of its right to renegotiate the terms or conditions of any Material
\nContract, and, to the Knowledge of AMD, no such basis exists.<\/p>\n
3.6 No Conflict or Violation. Neither the execution and delivery of
\n ————————
\nthis Agreement or the Ancillary Agreements by AMD and the Company nor the
\nconsummation of the transactions contemplated by this Agreement or the Ancillary
\nAgreements by AMD and the Company will (i) violate, conflict with or result in
\nany breach or default under any term or provision or result in the acceleration
\nof any Liability or cancellation or termination of or under any Material
\nContract, (ii) result in the creation or imposition of any material Encumbrance
\non any CPD Asset, (iii) result in any violation of the provisions of the charter
\nor bylaws of AMD or the Company or (iv) result in any material violation by AMD
\nof any Applicable Law or prohibit consummation by AMD of the transactions
\ncontemplated by this Agreement.<\/p>\n
3.7 Consents and Approvals. Except (a) for the filing of premerger
\n ———————-
\nnotification reports under the HSR Act and (b) as set forth on Section 3.7 of
\nthe Disclosure Schedule, no material consent, approval or authorization of any
\ngovernmental or regulatory authority, or any other Person, is required to be
\nmade or obtained by AMD or the Company in <\/p>\n
13<\/p>\n
connection with the execution, delivery and performance of this Agreement and
\nthe consummation of the transactions contemplated hereby.<\/p>\n
3.8 Financial Statements. The Financial Statements have been delivered
\n ——————–
\nto LLC by AMD. The Financial Statements were, and the Audited Financial
\nStatements will be, prepared in all material respects in accordance with the
\nbooks and records of the Business and in accordance with GAAP and fairly present
\non a carve-out basis in all material respects the assets and liabilities and
\nresults of operations of the Business as of the dates indicated or for the
\nperiods indicated, in each case on the basis described in Note 1 to the Audited
\nFinancial Statements, subject, in the case of the Financial Statements, to
\nnormal year-end adjustments and the omission of footnotes.<\/p>\n
3.9 Litigation. Except as set forth in the Form 10-K or in AMD’s
\n ———-
\nquarterly report on Form 10-Q for the quarter ended April 2, 2000, to the
\nKnowledge of AMD, there is no material Action pending or threatened against,
\nrelating to or affecting (i) the Business, (ii) the CPD Assets or (iii) the
\ntransactions contemplated by this Agreement. Neither AMD nor the Company is in
\nmaterial default with respect to any judgment, order, writ, injunction or decree
\nof any court or governmental agency, and there are no unsatisfied judgments
\nagainst AMD or the Company, in each case relating to the Business.<\/p>\n
3.10 Compliance with Law. To the Knowledge of AMD, each of AMD and the
\n ——————-
\nCompany is, and for the period of the applicable statute of limitations has
\nbeen, in compliance with all Applicable Laws with respect to the Business,
\nexcept where the failure to comply would not have a Material Adverse Effect.<\/p>\n
3.11 No Brokers. Except for the services of Donaldson, Lufkin & Jenrette
\n ———-
\nand Salomon Smith Barney, which have been retained by AMD, neither AMD nor any
\nof its Affiliates has entered into or will enter into any contract, agreement,
\narrangement or understanding with any Person which will result in the obligation
\nof LLC to pay any finder’s fee, brokerage commission or similar payment in
\nconnection with the transactions contemplated hereby. AMD is solely responsible
\nfor any payment, fee or commission that may be due to Donaldson, Lufkin & Jenrette and Salomon Smith Barney in connection with the transactions
\ncontemplated hereby.<\/p>\n
3.12 Employee Benefit Plans.
\n ———————- <\/p>\n
(a) There are no employment contracts or change in control, golden
\nparachute, severance or similar agreements or arrangements between AMD or the
\nCompany and any of the CPD Employees. AMD will provide such information
\nconcerning the CPD Employees as LLC may reasonably request, subject to AMD’s
\npolicies in effect at the time of the request with respect to providing
\ninformation about its employees to other potential employers.<\/p>\n
(b) Section 3.12(b) of the Disclosure Schedule sets forth a true and
\naccurate list of all employee benefit plans and programs to which AMD is a party
\nand in which the CPD Employees participate immediately prior to the Signing Date
\n(the “Plans and Programs”). AMD has provided or made available to LLC copies of
\n ——————
\nthe Plans and Programs (and, if applicable, <\/p>\n
14<\/p>\n
related trust agreements) and all amendments thereto and written interpretations
\nthereof distributed or made available to participants or beneficiaries together
\nwith the most recent annual report (Form 5500 including, if applicable, Schedule
\nB thereto) and the most recent actuarial valuation report, if any, prepared in
\nconnection with any Plan or Program. None of the Plans and Programs are
\nmultiemployer plans (as defined in ERISA Section 3(37) or 4001(a)(3)) or
\nemployee pension benefit plans (as defined in ERISA Section 3(2)) subject to
\nTitle IV of ERISA.<\/p>\n
(c) Neither the Company nor any ERISA Affiliate of the Company maintains or
\ncontributes to, or within the past six years, has maintained or contributed to,
\nany plan or arrangement subject to Title IV of ERISA.<\/p>\n
(d) Each Plan or Program that is intended to be qualified under Section
\n401(a) of the Code and each trust created under any such Plan or Program to be
\nexempt from tax under Section 501(a) of the Code has received a favorable
\ndetermination letter with respect to such qualified status from the Internal
\nRevenue Service or will be amended as requested by the Internal Revenue Service
\nwithin the remedial amendment period prescribed under Section 401(b) of the Code
\nso as to obtain such favorable determination. AMD has provided or made
\navailable to LLC the most recent determination letter of the Internal Revenue
\nService relating to each such Plan or Program. Each Plan or Program has been
\nmaintained in substantial compliance with its terms and with the requirements
\nprescribed by any and all applicable statutes, orders, rules and regulations,
\nincluding but not limited to ERISA and the Code.<\/p>\n
(e) The Company does not have any current or projected liability in respect
\nof post-employment or post-retirement health or medical or life insurance
\nbenefits for retired, former or current employees of the Company, except as
\nrequired to avoid excise tax under Section 4980B of the Code.<\/p>\n
(f) No employee or former employee of the Company will become entitled to
\nany bonus, retirement, severance, job security or similar benefit or enhanced
\nsuch benefit (including acceleration of vesting or exercise of an incentive
\naward) as a result of the transactions contemplated hereby.<\/p>\n
3.13 Tax Matters. The following representations are made as of the date
\n ———–
\nhereof and as of the Closing Date:<\/p>\n
(a) Filing of Tax Returns. Each of (i) the Company and (ii) the affiliated
\n ———————
\ngroup of corporations within the meaning of Section 1504(a) of the Code of which
\nthe Company is a member and any similar state, local or foreign combined,
\nconsolidated or affiliated group of which the Company is a member (the “Company
\n ——-
\nAffiliated Groups,” and, collectively with the Company, the “Taxpayers”) has
\n—————– ———
\ntimely filed with the appropriate Taxing or other governmental authorities all
\nreturns, reports, estimates, information returns and statements (collectively,
\n“Tax Returns”) required to be filed in respect of Taxes on or before the Closing
\n ———–
\nDate. For purposes of this Agreement, “Tax” means (i) any net income,
\n —
\nalternative or add-on minimum tax, gross income, gross receipts, sales, use, ad
\nvalorem, value added, transfer, franchise, profits, license, registration,
\nrecording, documentary, conveyancing, gains, withholding on amounts paid to or
\nby AMD or the Company, payroll, employment, excise, severance, stamp,
\noccupation, premium, <\/p>\n
15<\/p>\n
property, environmental or windfall profit tax, custom duty or other tax,
\ngovernmental fee or other like assessment or charge of any kind whatsoever,
\ntogether with any interest, penalty, addition to tax or additional amount
\nimposed by any governmental authority responsible for the imposition of any such
\ntax (domestic or foreign), (ii) in the case of the Company, liability for the
\npayment of any amount of they type described in clause (i) as a result of being
\nor having been before the Closing Date a member of an affiliated, consolidated,
\ncombined or unitary group and (iii) liability for the payment of any amounts of
\nthe type described in (i) as a result of being party to any agreement or any
\nexpress or implied obligation to indemnify any other Person. All such Tax
\nReturns are correct and complete in all material respects.<\/p>\n
(b) Payment of Taxes. All Taxes of the Taxpayers, in respect of periods or
\n —————-
\nportions thereof ending on or prior the Closing Date, have been paid, or will
\nhave been paid, or an adequate reserve has been established therefor in
\nconformity with GAAP. All Taxes that the Taxpayers have been required to
\ncollect or withhold have been duly collected or withheld and, to the extent
\nrequired when due, have been or will be duly paid to the proper Taxing
\nauthority.<\/p>\n
(c) Encumbrances. There are no Encumbrances on any of the Assets of the
\n ————
\nCompany that arose in connection with any Tax, other than for current Taxes not
\nyet due and payable.<\/p>\n
(d) Audit History. There is no pending action, dispute or claim,
\n ————-
\nproceeding, investigation or audit concerning any Tax liability of the Taxpayers
\nfor any taxable period during which the Company was a member. No Tax Returns of
\nthe Company or of any Company Affiliated Group for any taxable period during
\nwhich the Company was a member have been audited or are currently the subject of
\naudit. There are no requests for rulings or determinations in respect of any
\nTax pending between the Company and any Taxing authority. Neither the Company
\nnor any Company Affiliated Group has granted any extension or waiver of the
\nstatute of limitations period applicable to any Tax Return, which period (after
\ngiving effect to such extension or waiver) has not yet expired.<\/p>\n
(e) Tax Elections. No new elections with respect to Taxes, or changes in
\n ————-
\ncurrent elections with respect to Taxes, affecting the Company shall be made
\nafter the date of this Agreement without LLC’s prior consent, which consent
\nshall not be unreasonably withheld. Neither the Company nor any Company
\nAffiliated Group on behalf of the Company (i) has made or will make a consent
\ndividend election under Section 565 of the Code; (ii) has consented at any time
\nunder Section 341(f)(1) of the Code to have the provisions of Section 341(f)(2)
\nof the Code apply to any disposition of the CPD Assets; (iii) has made an
\nelection, or is required, to treat any CPD Asset as owned by another Person
\npursuant to the provisions of Section 168(f) of the Internal Revenue Code of
\n1954, as amended and in effect immediately prior to the enactment of the Tax
\nReform Act of 1986, or as tax-exempt bond financed property or tax-exempt use
\nproperty within the meaning of Section 168 of the Code; or (iv) has made any of
\nthe foregoing elections or is required to apply any of the foregoing rules under
\nany comparable foreign, state or local Tax provision.<\/p>\n
16<\/p>\n
(f) Prior Affiliated Groups. The Company has never been a member of an
\n ———————–
\naffiliated group other than the Company Affiliated Groups the common parent of
\nwhich is AMD. The Company has no liability for the Taxes of any Person other
\nthan the Company (i) under Treasury Regulations Section 1.1502-6 (or any similar
\nprovision of state, local or foreign law), (ii) as a transferee or successor,
\n(iii) by contract or (iv) otherwise.<\/p>\n
(g) Tax Sharing Agreements. There are no, and at the Closing Date there
\n ———————-
\nwill be no, tax-sharing agreements or similar arrangements with respect to or
\ninvolving the Company, and, after the Closing Date, the Company shall not be
\nbound by any such tax-sharing agreements or similar arrangements or have any
\nliability thereunder for amounts due in respect of periods prior to the Closing
\nDate.<\/p>\n
(h) Partnerships and Single Member LLCs. The Company is not subject to any
\n ———————————–
\njoint venture, partnership, or other arrangement or contract which is treated as
\na partnership for federal income tax purposes and does not own a single member
\nlimited liability company which is treated as a disregarded entity.<\/p>\n
(i) FIRPTA. For purposes of withholding under Section 1445 of the Code,
\n ——
\nAMD is not a “foreign person” as defined in Section 1445(f)(3) of the Code.<\/p>\n
(j) Section 280G. There is no contract, agreement, plan or arrangement
\n ————
\ncovering any person providing services in respect of the Business that,
\nindividually or in the aggregate, could give rise to the payment of any amount
\nthat would result in the imposition of an excise tax under Section 4999 of the
\nCode or would not be deductible pursuant to Section 280G or 162(m) of the Code.<\/p>\n
(k) Section 467 Rental Agreements. There are no Section 467 rental
\n —————————–
\nagreements for purposes of Section 467 of the Code and the Treasury Regulations
\nthereunder with respect to CPD Assets or the Assumed Liabilities.<\/p>\n
3.14 Personal Property.
\n —————– <\/p>\n
(a) Section 3.14(a) of the Disclosure Schedule sets forth a list of all
\nmaterial machinery, equipment, furniture, fixtures, and other items of tangible
\npersonal property that are owned and used by AMD primarily in the Business (the
\n“Owned Personal Property”).
\n ———————– <\/p>\n
(b) All of the Owned Personal Property is owned by AMD free and clear of
\nany Encumbrances, except for Permitted Encumbrances.<\/p>\n
(c) Section 3.14(c) of the Disclosure Schedule sets forth a list of all
\nmaterial machinery, equipment, furniture, fixtures, and other items of tangible
\npersonal property that are leased by AMD and used primarily in the Business (the
\n“Leased Personal Property”), the leases for which are being assumed by the
\n ————————
\nCompany pursuant to the Reorganization Agreement.<\/p>\n
17<\/p>\n
(d) All of the Owned Personal Property and Leased Personal Property is
\nowned or leased by AMD. The Owned Personal Property and the Leased Personal
\nProperty is, considered in the aggregate, in good operating condition, subject
\nonly to ordinary wear and tear.<\/p>\n
3.15 Inventory. The CPD Inventory consisting of finished goods set forth
\n ———
\non the unaudited balance sheet of the Business at December 26, 1999 (the
\n“Balance Sheet”) is, and the CPD Inventory consisting of finished goods as of
\n ————-
\nthe Closing shall be, in good and marketable condition and salable in the normal
\ncourse of the Business, as currently conducted. The CPD Inventory on the Balance
\nSheet is valued in accordance with GAAP and the historical inventory valuation
\npolicies of the Business at the lower of cost or market, and allowances have
\nbeen established on the date of the Balance Sheet for slow moving, obsolete or
\nunusable inventories.<\/p>\n
3.16 Permits. Section 3.16 of the Disclosure Schedule sets forth a list of
\n ——-
\nall Permits issued to AMD and AMD has furnished to LLC a copy of each of such
\nPermits, and each such copy is correct and complete and includes any and all
\nmodifications thereof. The Permits are in full force and effect; AMD is not in
\nmaterial violation of any of the Permits; to the Knowledge of AMD, no
\nproceedings for the suspension or cancellation of any of the Permits is pending
\nor threatened; to the Knowledge of AMD, no condition exists which (with or
\nwithout notice, the passage of time or both) would constitute a material
\nviolation of any of the Permits; and to the Knowledge of AMD, the Permits
\nconstitute all material governmental licenses, permits, consents, approvals or
\ncertificates required to be obtained or held by AMD in connection with the
\noperation of the Business as presently conducted.<\/p>\n
3.17 Labor Relations.
\n ————— <\/p>\n
(a) Neither AMD nor the Company is a party to any collective bargaining
\nagreement related to the Business, and none of the CPD Employees is a party to
\nany collective bargaining agreement.<\/p>\n
(b) AMD, with respect to the CPD Employees, is in compliance in all
\nmaterial respects with all Applicable Laws regarding employment practices, terms
\nand conditions of employment, and wages and hours; there is no unfair labor
\npractice complaint against AMD pending before the National Labor Relations Board
\nor any similar labor agency that has been delivered to AMD with respect to the
\nBusiness; and there is no labor strike, dispute, slowdown, representation
\nquestion or stoppage pending or threatened against or involving the Business.<\/p>\n
3.18 Insurance. AMD maintains policies of insurance which insure the CPD
\n ———
\nAssets and the Business in commercially reasonable amounts for occurrences
\nnormally insured against. There are no claims by AMD pending or, to the
\nKnowledge of AMD, threatened with respect to the CPD Assets or the Business
\nunder said policies or disputes with underwriters, and all premiums due and
\npayable have been paid and all such policies are in full force and effect in
\naccordance with their respective terms.<\/p>\n
3.19 Capitalization of the Company. The Company is authorized to issue
\n —————————–
\n750,000 shares of Common Stock and no shares of Preferred Stock. As of the date
\nhereof, there <\/p>\n
18<\/p>\n
are 25,000 shares of Common Stock issued and outstanding and no shares of
\nPreferred Stock issued and outstanding. As of the Closing Date, the Company will
\nbe authorized to issue 200,000,000 shares of Common Stock and 200,000 shares of
\nPreferred Stock. Following the transactions contemplated by the Reorganization
\nAgreement, there will be 155,162,002 shares of Common Stock issued and
\noutstanding and 138,888 shares of Preferred Stock outstanding. All outstanding
\nshares of Common Stock are owned by AMD free and clear of all Encumbrances. As
\nof the date hereof there are, and at all times prior to the Closing there will
\nbe, no outstanding options, conversion rights, warrants or other rights in
\nexistence to acquire or to require the Company to issue, purchase or acquire any
\nshares of the capital stock or other securities of the Company, other than
\npursuant to the Reorganization Agreement. The issued and outstanding shares of
\ncapital stock of the Company have been duly authorized and validly issued and
\nare fully paid and nonassessable.<\/p>\n
3.20 Necessary Assets. AMD has made a good faith attempt to provide that
\n —————-
\nupon the consummation of the transactions contemplated by this Agreement and the
\nAncillary Agreements, the tangible assets and properties of the Company as of
\nthe Closing Date (including rights under the Ancillary Agreements) will include
\nall of the material tangible assets and properties necessary for the conduct of
\nthe Business as presently conducted.<\/p>\n
3.21 Product Liability and Recalls.
\n —————————– <\/p>\n
(a) To the Knowledge of AMD, there is, and for the past 12 months there
\nhas been, no pending or threatened claim, action, suit, proceeding, arbitration
\nor investigation against AMD with respect to the Business for injury to person
\nor property of employees or any third parties suffered as a result of the sale
\nof any product, performance of any service by the Business, including claims
\narising out of the alleged defective or unsafe nature of its products or
\nservices.<\/p>\n
(b) To the Knowledge of AMD, there is no pending or overtly threatened
\nrecall or investigation of any product sold by the Business.<\/p>\n
3.22 Related Party Transactions. None of AMD, senior management of the
\n ————————–
\nBusiness, or any of AMD’s Affiliates (which are not natural persons) either (i)
\nowns, directly or indirectly, on an individual or joint basis, any material
\ninterest in, or serves as an officer or director of, any customer, competitor or
\nsupplier of the Business or organization which has a Material Contract (in each
\ncase as to any material interest or Material Contract of the Business which
\nshall survive the Closing Date) or (ii) has any Material Contract with the
\nCompany which is not on arms-length terms (in each case as to any Material
\nContract which shall survive the Closing Date).<\/p>\n
3.23 Accounts Receivable. The accounts receivable of the Company at the
\n ——————-
\nClosing will represent good faith claims of the Company against debtors for
\nsales or other charges arising on or before the Closing. The accounts receivable
\nset forth on the Balance Sheet arose in the ordinary course of business; were
\nnot, as of the date of the Balance Sheet subject to any material discount,
\ncontingency, claim of offset or recoupment or counterclaim; and represented, as
\nof the date of the Balance Sheet, good faith claims against debtors for sales or<\/p>\n
19<\/p>\n
other charges. Reserves shown on the Balance Sheet were adequate as of the date
\nof the Balance Sheet and were calculated on a basis consistent with GAAP.<\/p>\n
ARTICLE IV.<\/p>\n
REPRESENTATIONS AND WARRANTIES OF LLC<\/p>\n
To induce AMD to enter into this Agreement, LLC hereby makes the following
\nrepresentations and warranties to AMD.<\/p>\n
4.1 Organization of LLC. LLC is duly organized and validly existing as a
\n ——————-
\nlimited liability company in good standing under the laws of the State of
\nDelaware and has full power and authority to conduct its business as it is
\npresently being conducted and to own and lease its properties.<\/p>\n
4.2 Authorization. LLC has the power and authority to execute and deliver
\n ————-
\nthis Agreement and each of the Ancillary Agreements to which it is a party and
\nto consummate the transactions contemplated hereby and thereby, and all
\nrequisite corporate action has been taken by LLC to authorize the execution,
\ndelivery and performance of this Agreement and each of the Ancillary Agreements
\nto which it is a party. This Agreement has been duly executed and delivered by
\nLLC and, assuming the due execution of this Agreement by AMD, is a valid and
\nbinding obligation of LLC, enforceable against LLC in accordance with its terms,
\nexcept as the foregoing may be limited by bankruptcy, insolvency,
\nreorganization, moratorium or other similar laws now or hereafter in effect
\nrelating to or affecting the rights and remedies of creditors, general
\nprinciples of equity (whether considered in an action at law or in equity) and
\nthe discretion of the court before which any proceeding therefor may be brought.<\/p>\n
4.3 Consents and Approvals. No consent, approval or authorization of any
\n ———————-
\nGovernmental Authority or any other Person is required to be made or obtained by
\nLLC or any of its Affiliates in connection with the execution, delivery and
\nperformance of this Agreement and the consummation of the transactions
\ncontemplated hereby other than the filings required under the HSR Act.<\/p>\n
4.4 No Brokers. Except for the services of Morgan Stanley Dean Witter,
\n ———-
\nwhich has been retained by LLC, and except for fees not to exceed $30,000,000 in
\nthe aggregate, which will be paid by the Company immediately following the
\nClosing, neither LLC nor any of its Affiliates has entered into or will enter
\ninto any agreement, arrangement or understanding with any Person which will
\nresult in the obligation of LLC, AMD or the Company to pay any finder’s fee,
\nbrokerage commission or similar payment in connection with the transactions
\ncontemplated hereby.<\/p>\n
4.5 No Conflict or Violation. Neither the execution and delivery of this
\n ————————
\nAgreement nor the Ancillary Agreements nor the consummation of the transactions
\ncontemplated hereby or thereby will result in (a) a violation of or a conflict
\nwith any provision of the charter or other organizational documents of LLC, (b)
\na breach of, or a default under, any term or provision of any contract or
\nagreement to which LLC is a party, which breach or default would prevent LLC
\nfrom consummating the transactions contemplated hereby, or (c) a violation by
\nLLC of any <\/p>\n
20<\/p>\n
statute, rule, regulation, ordinance, code, order, judgment, writ, injunction,
\ndecree or award, which violation would prevent LLC from consummating the
\ntransactions contemplated hereby.<\/p>\n
4.6 Financing Arrangements. Prior to the date hereof, LLC has delivered
\n ———————-
\nto AMD true and correct copies of the commitment letter and certain related
\ndocuments set forth in Exhibit B from the financing sources identified therein,
\nwhich provide for the financing of the transactions contemplated hereby (the
\n“Financing Commitments”). The Financing Commitments are binding commitments and
\n ———————
\nhave not been amended or modified or withdrawn or rescinded in any respect; and
\nAMD is not aware of any fact, event or circumstance which would have a
\ndetrimental effect on the ability to consummate the financing contemplated by
\nthe Financing Commitments. The funds committed under the Financing Commitments,
\ntogether with the funds to be paid by LLC to purchase the Purchased Common
\nShares and the Purchased Preferred Shares, are sufficient to enable the Company
\nand LLC to pay the Redemption Price and the Stock Purchase Price, as applicable,
\nto pay all related fees and expenses of LLC in connection with the transactions
\ncontemplated hereunder and to provide for the anticipated working capital needs
\nof the Company following the consummation of the transactions contemplated
\nhereunder (the financing necessary to provide such funds being hereinafter
\nreferred to as the “Financing”). The Financing Commitments are in full force and
\n ———
\neffect as of the date hereof. There are no conditions precedent or other
\ncontingencies related to the funding of the full amount of the Financing other
\nthan as set forth in or contemplated by the Financing Commitments. All fees
\nrequired to be paid by LLC on or prior to the date hereof in respect of the
\nFinancing Commitments have been paid. A true and correct schedule of sources and
\nuses of the funds to be received in the Financing are set forth in Exhibit B.<\/p>\n
4.7 WARN Act. LLC is not planning or contemplating, and has not made or
\n ——–
\ntaken, any decisions or actions concerning the Business after the Closing that
\nwould require the service of notice under the Worker Adjustment and Retraining
\nAct of 1988 (the “WARN Act”).
\n ——– <\/p>\n
4.8 Litigation. To the knowledge of LLC, there are no Actions pending or
\n ———-
\nthreatened (i) against LLC or any of its Affiliates which if adversely
\ndetermined would materially hinder or impair the ability of LLC to perform its
\nobligations under this Agreement or (ii) that seek to enjoin or obtain damages
\n(which damages could reasonably be expected to have a material adverse change in
\nor effect upon LLC) in respect of the consummation of the transactions
\ncontemplated hereby. None of LLC or any of its Affiliates is subject to any
\noutstanding orders, rulings, judgments or decrees that would have a material
\nadverse effect on the ability of LLC to perform its obligations under this
\nAgreement.<\/p>\n
4.9 Securities Matters. (a) LLC is aware of the business affairs and
\n ——————
\nfinancial condition of the Business, and has acquired sufficient information
\nabout the Company and the Business to reach an informed and knowledgeable
\ndecision to acquire the Purchased Common Shares and the Purchased Preferred
\nShares. LLC is purchasing the Purchased Common Shares and the Purchased
\nPreferred Shares for its own account for investment purposes only and not with a
\nview to, or for the resale in connection with, any “distribution” thereof for
\npurposes of the Securities Act of 1933, as amended (the “Securities Act”).
\n ————– <\/p>\n
21<\/p>\n
(b) LLC understands that the Purchased Common Shares and the Purchased
\nPreferred Shares have not been registered under the Securities Act in reliance
\nupon a specific exemption therefor, which exemption depends upon, among other
\nthings, the bona fide nature of LLC’s investment intent as expressed herein.<\/p>\n
(c) LLC further understands that the Purchased Common Shares and the
\nPurchased Preferred Shares must be held indefinitely unless subsequently
\nregistered under the Securities Act or unless an exemption from registration is
\notherwise available. In addition, LLC understands that the certificates
\nevidencing the Purchased Common Shares and the Purchased Preferred Shares will
\nbe imprinted with the legend referred to in the Shareholders’ Agreement.<\/p>\n
(d) LLC is aware of the provisions of Rule 144, promulgated under the
\nSecurities Act, which, in substance, permit limited public resale of “restricted
\nsecurities” acquired, directly or indirectly, from the issuer thereof (or from
\nan affiliate of such issuer), in a non-public offering subject to the
\nsatisfaction of certain conditions, if applicable, including, among other
\nthings: (i) the availability of certain public information about the Company;
\n(ii) the resale occurring not less than one year after the party has purchased
\nand paid for the securities to be sold; (iii) the sale being made through a
\nbroker in an unsolicited “broker’s transaction” or in transactions directly with
\na market maker (as said term is defined under the Securities Exchange Act of
\n1934, as amended) and the amount of securities being sold during any three-month
\nperiod not exceeding the specified limitations stated therein.<\/p>\n
(e) LLC represents that it is an “accredited investor” as that term is
\ndefined in Rule 501 of Regulation D under the Securities Act or any successor
\nregulation thereunder.<\/p>\n
ARTICLE V.<\/p>\n
ACTIONS BY AMD AND LLC
\n PRIOR TO THE CLOSING<\/p>\n
5.1 Maintenance of Business. AMD covenants that, prior to the Closing,
\n ———————–
\nexcept as may be agreed to in writing by AMD and LLC, it shall conduct the
\nBusiness, in all material respects, according to its ordinary and usual course
\nof business and consistent with AMD’s prior practices. Without limiting the
\ngenerality of the foregoing, AMD shall: (a) maintain in effect and fully perform
\nall of its obligations under the Material Contracts in accordance with the terms
\nthereof; (b) give prompt notice to LLC of any notice given or received by AMD of
\nany default or breach or alleged default or breach under any of the Material
\nContracts and of any claim or threat, of which AMD may have Knowledge, to
\ncommence any action, suit, proceeding, or investigation against AMD with respect
\nto the Business; (c) protect and maintain in effect the CPD Intellectual
\nProperty in accordance with past practices; (d) maintain in full force and
\neffect all insurance policies currently in effect with respect to the CPD
\nAssets, or policies that provide coverage that is comparable to such insurance
\npolicies; (e) not hire or fire employees of the Business other than in the
\nordinary course of business; and (f) use all Reasonable Efforts to consummate
\nthe transactions contemplated by the Reorganization Agreement in accordance with
\nthe terms of the Reorganization Agreement.<\/p>\n
22<\/p>\n
5.2 Certain Prohibited Transactions. AMD covenants that except as may be
\n ——————————-
\nrequired by contract or law, and except as contemplated by Section 5.2 of the
\nDisclosure Schedule, it shall use its Reasonable Efforts not to, without the
\nprior written approval of LLC (other than pursuant to the Reorganization
\nAgreement):<\/p>\n
(a) mortgage, pledge or allow any Encumbrance (other than Permitted
\nEncumbrances) on any CPD Assets;<\/p>\n
(b) create, incur, assume or guarantee any Indebtedness for Borrowed
\nMoney that would be an Assumed Liability;<\/p>\n
(c) except in the ordinary course of business, sell, assign or transfer
\nany of the CPD Assets;<\/p>\n
(d) make any capital expenditure or incur any commitment or liability
\ntherefor, individually or in the aggregate, involving payments in excess of
\n$1,000,000 individually or $5,000,000 in the aggregate on behalf of the
\nBusiness;<\/p>\n
(e) enter into or terminate any Material Contract with respect to the
\nBusiness outside the ordinary course of business or amend, modify or agree to
\namend or modify any Material Contract outside the ordinary course of business;<\/p>\n
(f) except as set forth on Section 5.2 of the Disclosure Schedule, enter
\ninto any new employment or management agreement with any CPD Employee;<\/p>\n
(g) issue, sell, pledge, dispose of or encumber, or authorize the
\nissuance, sale, pledge, disposition or encumbrance of, any shares of capital
\nstock of any class, or any options, warrants, convertible securities or other
\nrights of any kind to acquire any shares of capital stock, or any other
\nownership interest in the Company, other than to AMD;<\/p>\n
(h) amend any of the Ancillary Agreements; or<\/p>\n
(i) enter into any agreement or commitment to do any of the actions set
\nforth in (a) – (h) above.<\/p>\n
5.3 Access. Prior to the Closing, AMD shall provide LLC with reasonable
\n ——
\naccess during normal business hours to the CPD Assets, to Building 312 and to
\nAMD’s employees, officers, agents and consultants, books and records
\ncompensation and employee benefit plan documents, and such other information, in
\neach case relating to the Business and the CPD Employees subject to its existing
\npolicies with respect to providing information about its employees to other
\npotential employers, as LLC may reasonably request. LLC shall use its Reasonable
\nEfforts to minimize any disruption to AMD’s business in connection with the
\nconduct of the process contemplated herein, and AMD shall receive reasonable
\nadvance notice of and shall have the right to participate in, any discussions
\nLLC might have with any federal or state regulatory authorities about AMD or the
\nBusiness. Notwithstanding anything in this Section 5.3 to the contrary, under no
\ncircumstances shall AMD be required to provide to LLC or <\/p>\n
23<\/p>\n
its representatives, access to its Tax Returns or any information or materials
\nrequired to be kept confidential pursuant to agreements with third parties or by
\nlaw or subject to entering into appropriate agreements that preserve the
\nprivilege, any privileged attorney-client communications or work product of AMD.<\/p>\n
5.4 Consents and Reasonable Efforts. As soon as practicable, LLC and AMD
\n ——————————-
\nshall make all filings required under the HSR Act. In addition, LLC and AMD will
\neach furnish all information as may be required by any state regulatory agency
\nproperly asserting jurisdiction or by the Federal Trade Commission and the
\nUnited States Department of Justice under the HSR Act in order that the
\nrequisite approvals for the transactions contemplated hereby be obtained or to
\ncause any applicable waiting periods to expire. AMD and the Company shall each
\npay half of the $45,000 initial filing fee under the HSR Act. AMD shall use its
\nReasonable Efforts to obtain prior to the Closing Date the Required Consents,
\nand any other consents, approvals, authorizations and agreements of and to give
\nall notices and make all other filings with, any third parties, including
\nGovernmental Authorities, necessary to authorize, permit or approve the
\nconsummation of the transactions contemplated hereby. In addition, subject to
\nthe terms and conditions herein provided, each of the parties hereto covenants
\nand agrees to use its Reasonable Efforts to take, or cause to be taken, all
\naction or do, or cause to be done, all things necessary, proper or appropriate
\nto consummate and make effective the transactions contemplated hereby and to
\ncause the fulfillment of the parties’ obligations hereunder. AMD and the Company
\nshall also use their Reasonable Efforts (before, and as reasonably necessary
\nafter, the Closing) to obtain consents (the “Contract Consents”) to assign the
\n —————–
\ncontracts set forth on Schedule 5.4 pursuant to the Reorganization Agreement in
\nsuch a manner as to reasonably minimize any increases in ongoing royalty
\npayments pursuant to such contracts. AMD shall pay the first $500,000 of any
\nConsent Payments, the Company shall pay the second $500,000 of any Consent
\nPayments, and AMD shall pay any Consent Payments in excess of $1,000,000. For
\npurposes of this Section, “Consent Payments” shall mean any one-time payments
\n —————-
\nto obtain the Contract Consents (but excluding ongoing payments, such as royalty
\npayments).<\/p>\n
5.5 Supplement to Schedules. After the date hereof, AMD shall, from time
\n ———————–
\nto time prior to or at the Closing, by notice to LLC, supplement or amend any
\nSection of the Disclosure Schedule, including without limitation, one or more
\nsupplements or amendments thereto, to correct any matter which would constitute
\na breach of any representation or warranty set forth herein. Such supplemental
\nor amended Schedule shall not be deemed to cure any breach of such
\nrepresentation or warranty for the purposes of Article VII hereof. If, however,
\nthe Closing occurs, such supplemental or amended Schedule shall be effective to
\ncure and correct for all purposes any breach of any representation or warranty
\nthat would have existed by reason of AMD not having made such supplement or
\namendment.<\/p>\n
5.6 Financing. LLC shall use its Reasonable Efforts to have the Company
\n ———
\nenter into definitive financing agreements with respect to the Financing, and to
\ndo all such acts and things reasonably necessary to consummate the Financing.<\/p>\n
5.7 Exclusivity. Unless and until this Agreement is terminated pursuant
\n ———–
\nto Section 11.1, neither AMD nor any of its Affiliates, officers, directors,
\nemployees or agents will <\/p>\n
24<\/p>\n
(a) solicit, initiate, or encourage the submission of any proposal or offer from
\nany person relating to any (i) liquidation, dissolution, or recapitalization,
\n(ii) merger or consolidation, (iii) acquisition or purchase of securities or
\nassets, or (iv) similar transaction or business combination, in each case
\ninvolving all or any material portion of the Business; or (b) participate in any
\ndiscussion or negotiations regarding, furnish any information with respect to,
\nassist or participate in, or agree to or endorse in any other manner any effort
\nor attempt by any Person to do or seek any of the foregoing.<\/p>\n
5.8 Company Directors. Immediately following LLC’s acquisition of the
\n —————–
\nPurchased Common Shares and the Purchased Preferred Shares, but prior to the
\nRedemption, LLC shall cause two representatives of LLC to be appointed as the
\nsole members of the Company’s board of directors and shall cause such
\nindividuals to approve the Senior Secured Loan and the Redemption.<\/p>\n
5.9 Solvency Opinion. LLC shall use its Reasonable Efforts to provide
\n —————-
\ninformation reasonably requested by AMD to enable AMD and the Company to obtain
\nan opinion addressed to the Board of Directors of the Company and AMD which
\nprovides the Company and AMD with reasonable assurance that the transactions
\ncontemplated by this Agreement do not result in a violation of California
\nfraudulent conveyance laws or Section 548 of the U.S. Bankruptcy Code.<\/p>\n
5.10 Accounts Receivable. AMD will deliver to LLC, as soon as reasonably
\n ——————-
\npracticable following the date hereof, a complete and accurate aging list of the
\naccounts receivable of the Company as of December 26, 1999 and April 2, 2000 and
\nwill deliver a complete and shall use its Reasonable Efforts to deliver to LLC
\nan accurate aging list of the accounts receivable of the Company as of June 30,
\n2000 prior to, or as soon as reasonably practicable after, the Closing Date.<\/p>\n
5.11 Cooperation in Structuring Subsidiaries. In establishing the
\n —————————————
\nsubsidiaries and branches and in completing the transfers enumerated in Sections
\n2.2 through 2.8 of the Reorganization Agreement (the “Structuring”), AMD and LLC
\n ———–
\nshall use their Reasonable Efforts to complete the Structuring in a tax
\nefficient manner for both parties.<\/p>\n
5.12 Schedule Relating to CPD Patents. As soon as reasonably practicable
\n ——————————–
\nafter the Signing Date, AMD shall provide LLC with a schedule of all significant
\nlicenses, rights to use, options, releases, covenants not to sue, non-assertion
\nassurances and outstanding liens or security interests that AMD has granted to
\nany third person with respect to any of the CPD Patents.<\/p>\n
5.13 Sublicense. AMD shall sublicense the Company to the licenses granted
\n ———-
\nunder the Patent License Agreement between Lucent Technologies GRL Corp. and
\nAdvanced Micro Devices, Inc., effective January 1, 1998, and under the PLA
\nreferenced therein to the fullest extent permitted under Article 4.02(b)
\nthereof. The Company shall make quarterly royalty payments to AMD based on the
\nCompany’s quarterly net revenues and the actual royalty rate set forth in such
\nagreement, and shall in no event be liable for royalty payments in excess of<\/p>\n
25<\/p>\n
$337,000 a year. The Company shall pay such royalty payments to AMD no later
\nthan 45 days following the end of each quarter.<\/p>\n
5.14 IBM License. AMD and the Company shall, as soon as practicable after
\n ———–
\nthe Closing Date, jointly request in writing that IBM grant a license to the
\nCompany that licenses the Company for a field commensurate in breadth with the
\nNewco Exclusive Field (as defined in the Intellectual Property Cross-License
\nAgreement) pursuant to Section 2.8 of the License Agreement between IBM and AMD,
\neffective January 1, 1997.<\/p>\n
ARTICLE VI.<\/p>\n
CONDITIONS TO THE OBLIGATIONS OF AMD<\/p>\n
The obligations of AMD to consummate the transactions contemplated hereby
\non the Closing Date are subject to the satisfaction or waiver (in the discretion
\nof AMD), on or prior to the Closing Date, of each of the following conditions:<\/p>\n
6.1 Representations, Warranties and Covenants. All representations and
\n —————————————–
\nwarranties of LLC contained in this Agreement shall be true and correct
\n(disregarding all exceptions therein for materiality and material adverse
\neffects) as of the date of this Agreement and as of the Closing Date as if such
\nrepresentations and warranties were made at and as of the Closing Date, with
\nsuch exceptions in each case as would not have a material adverse effect on LLC,
\nand LLC shall have performed in all material respects all agreements and
\ncovenants required hereby to be performed by it prior to or at the Closing Date.<\/p>\n
6.2 Consents. All consents, approvals and waivers from Governmental
\n ——–
\nAuthorities and other Persons set forth on Schedule 6.2 shall have been
\nobtained.<\/p>\n
6.3 No Injunction or Restraints. No temporary restraining order,
\n —————————
\npreliminary or permanent injunction or other order, decree or judgment issued by
\na Governmental Authority of competent jurisdiction shall be in effect and have
\nthe effect of making the transactions contemplated by this Agreement illegal or
\notherwise prohibiting the sale of the Business; provided, however, that the
\nprovisions of this Section shall not be available to AMD if it does not use its
\nReasonable Efforts to resist, resolve or lift such injunction or other order.<\/p>\n
6.4 HSR Act. The applicable waiting period, including any extension
\n ——-
\nthereof, under the HSR Act shall have expired or otherwise been terminated.<\/p>\n
6.5 Reorganization Agreement. The transactions contemplated by the
\n ————————
\nReorganization Agreement shall have been consummated in substantially the manner
\ncontemplated by the Reorganization Agreement.<\/p>\n
6.6 Execution of Ancillary Agreements. Each of the Ancillary Agreements
\n ———————————
\nshall have been duly executed and delivered by each party thereto other than AMD
\nand the Company.<\/p>\n
26<\/p>\n
6.7 California Redemption Matters. The Senior Secured Lender, pursuant
\n —————————–
\nto and for purposes of California General Corporation Law Section 506(b), shall
\nhave consented to the transactions contemplated by this Agreement.<\/p>\n
ARTICLE VII.<\/p>\n
CONDITIONS TO THE OBLIGATIONS
\n OF LLC<\/p>\n
The obligations of LLC to consummate the transactions contemplated hereby
\nare subject to the satisfaction or waiver (in the discretion of LLC), on or
\nprior to the Closing Date, of each of the following conditions:<\/p>\n
7.1 Representations, Warranties and Covenants. All representations and
\n —————————————–
\nwarranties of AMD contained in this Agreement shall be true and correct
\n(disregarding all exceptions therein for materiality and material adverse
\neffects) as of the date of this Agreement and as of the Closing Date as if such
\nrepresentations and warranties were made at and as of the Closing Date, with
\nsuch exceptions in each case as would not have a Material Adverse Effect, and
\nAMD shall have performed in all material respects all agreements and covenants
\nrequired hereby to be performed by it prior to or at the Closing Date.<\/p>\n
7.2 Consents. All (a) Required Consents and (b) other consents, approvals
\n ——–
\nand waivers from Governmental Authorities and other Persons necessary to permit
\nLLC to consummate the transactions contemplated hereby or necessary to avoid a
\nbreach of, default under or termination of any Material Contract or Permit shall
\nhave been obtained, unless the failure to obtain any such Required Consent or
\nother consent, approval or waiver would not have a Material Adverse Effect. All
\nconsents or approvals set forth on Section 7.2 of the Disclosure Schedule shall
\nhave been obtained.<\/p>\n
7.3 No Injunction or Restraints. No temporary restraining order,
\n —————————
\npreliminary or permanent injunction or other order, decree or judgment issued by
\na Governmental Authority of competent jurisdiction shall be in effect and have
\nthe effect of making the transactions contemplated by this Agreement illegal or
\notherwise prohibiting the sale of the Business; provided, however, that the
\nprovisions of this Section shall not be available to LLC if it does not use its
\nReasonable Efforts to resist, resolve or lift such injunction or other order.<\/p>\n
7.4 HSR Act. The applicable waiting period, including any extension
\n ——-
\nthereof, under the HSR Act shall have expired or otherwise been terminated.<\/p>\n
7.5 Execution of Ancillary Agreements. Each of the Ancillary Agreements
\n ———————————
\nshall have been duly executed and delivered by each party thereto other than
\nLLC.<\/p>\n
7.6 Reorganization Agreement. The transactions contemplated by the
\n ————————
\nReorganization Agreement shall have been consummated in substantially the manner
\ncontemplated by the Reorganization Agreement.<\/p>\n
27<\/p>\n
7.7 Financing. The conditions to the funding contemplated by the
\n ———
\nFinancing Commitments with respect to the Financing shall have been satisfied in
\nfull or waived, and the cash contemplated by such Financing Commitments shall
\nhave been provided or made available to the Company and\/or LLC.<\/p>\n
7.8 Delivery of Audited Financial Statements. AMD shall have delivered to
\n —————————————-
\nLLC the audited balance sheet of the Business as of December 26, 1999, and
\naudited income statement and statement of cash flows of the Business for the
\nyear ended December 26, 1999, each prepared in accordance with GAAP on a carve-
\nout basis (the “Audited Financial Statements”).
\n —————————-<\/p>\n
7.9 Delivery of Tax Forms. AMD shall have delivered to LLC at the Closing
\n ———————
\na certificate in form and substance reasonably satisfactory to LLC, duly
\nexecuted and acknowledged, certifying any facts that would exempt the
\ntransactions contemplated hereby from withholding pursuant to the provisions of
\nthe Foreign Investment in Real Property Tax Act.<\/p>\n
ARTICLE VIII.<\/p>\n
ACTIONS BY AMD AND LLC AFTER THE CLOSING<\/p>\n
8.1 Books and Records. AMD, the Company and LLC agree that so long as any
\n —————–
\nCPD Books and Records, to the extent that they pertain to the operations of the
\nBusiness prior to the Closing Date, remain in existence and available, each
\nparty (at its expense) shall have the right to inspect and to make copies of the
\nsame upon reasonable written notice at any time during business hours for any
\nproper purpose.<\/p>\n
8.2 Further Assurances. On and after the Closing Date, AMD, the Company
\n ——————
\nand LLC will take all appropriate action and execute all documents, instruments
\nor conveyances of any kind which may be reasonably necessary or advisable to
\ncarry out any of the provisions hereof. In addition, AMD and LLC agree to notify
\nthe other party of any audit, notice, assessment or other action affecting Taxes
\nrelating to the transactions contemplated by this Agreement.<\/p>\n
8.3 WARN Act. LLC agrees that it will not take any action which causes
\n ——–
\nthe notice provisions of the WARN Act to be applicable to AMD or the Company in
\nconnection with the transactions contemplated by this Agreement.<\/p>\n
8.4 Employees and Employee Benefits.
\n ——————————-<\/p>\n
(a) Effective as of the Closing Date, LLC will, in connection with its
\nacquisition of the Business, cause the Company to employ each CPD Employee (the
\n“Transferred Employees”) at the same or substantially comparable total
\n ———————
\ncompensation (including base salary and bonus but excluding stock-based
\ncompensation and any stay bonus or retention payments) as in effect immediately
\nprior to the Closing. Such Transferred Employees shall become employees of the
\nCompany effective at 12:01 a.m. Pacific Standard Time on the Closing Date,
\nexcept as set forth in Section 8.4(b) or (c) (such date of hire by the Company
\nreferred to herein as the “Hire Date”).
\n ——— <\/p>\n
28<\/p>\n
(b) LLC agrees to cause the Company to offer each Inactive Employee
\nemployment under the terms applicable to Transferred Employees when the Company
\nis notified that such person will return to work. If the offer is accepted,
\nsuch person shall be treated as a Transferred Employee for all purposes under
\nthis Agreement. Until any such employee returns to active employment with the
\nCompany, AMD shall be responsible for such employee’s salary and benefits
\nincluding, without limitation, disability benefits.<\/p>\n
(c) LLC agrees to cause the Company to offer each International
\nEmployee and Visa Employee employment under the terms applicable to Transferred
\nEmployees as soon as practicable following the Closing Date. If the offer is
\naccepted, such person shall be treated as a Transferred Employee for all
\npurposes under this Agreement. Until such date, the parties agree to enter into
\nan appropriate secondment agreement or other reasonable arrangement for the
\navailability of such International Employees and Visa Employees to the Company.<\/p>\n
(d) During the period between the date hereof and the Closing Date,
\nAMD will use its Reasonable Efforts to ensure that certain AMD employees
\nmutually agreed upon by AMD and LLC are available for interview by LLC (acting
\non behalf of the Company) for possible employment with the Company following the
\nClosing Date, and the Company (with LLC’s consent), in its discretion, may make
\noffers of employment to any of such employees.<\/p>\n
(e) The Company shall not assume, and AMD shall retain all
\nobligations to fund or otherwise shall provide all benefits in respect of or
\npayable under, AMD’s Plans and Programs. No assets or liabilities of any of
\nAMD’s Plans and Programs shall be transferred from such Plans and Programs to
\nany plan maintained or established by the Company, except for the AMD Flexible
\nBenefits Plan and the flexible spending accounts under such plan or as set forth
\nunder Section 8.4(f).<\/p>\n
(f) (i) No later than the Closing Date, effective as of the Closing
\nDate, AMD shall amend its defined contribution plan in which Transferred
\nEmployees participate (the “AMD Saving Plan”) to cause the account balances of
\n —————
\neach Transferred Employee thereunder to vest as of each employee’s respective
\nHire Date and to cause their active participation in the AMD Saving Plan to
\ncease as of their respective Hire Dates.<\/p>\n
(ii) Unless LLC (acting on behalf of the Company) elects the
\noption set forth in subsection (iii) of this Section no later than the Closing
\nDate, AMD shall take any steps necessary to permit the Transferred Employees to
\nreceive a distribution of their accrued benefits from the AMD Saving Plan as a
\nresult of transactions contemplated by this Agreement, provided the terms of
\nsuch plan would permit such a distribution. On or following the Closing Date,
\nthe savings plan of the Company or one of its Affiliates (the “Company DC Plan”)
\n —————
\nshall (if elected by the Transferred Employees) accept individual rollovers in
\ncash and, if permitted, promissory notes reflecting participants’ loans under
\nthe AMD Saving Plan of Transferred Employees’ distributions from the AMD Saving
\nPlan, subject to the terms and conditions of the Company DC Plan and applicable
\nlaw. The Company’s obligations under this subsection (ii) are contingent upon
\nreceipt by the Company of a favorable determination letter or AMD’s<\/p>\n
29<\/p>\n
certification to the Company, in a manner reasonably acceptable to the Company,
\nthat the AMD Saving Plan is qualified under the applicable provisions of the
\nCode.<\/p>\n
(iii) LLC (on behalf of the Company) may elect at its option no
\nlater than the Closing Date, in lieu of the distribution provided for in
\nsubsection (ii) of this Section, as soon as practicable following receipt by AMD
\nand the Company of favorable determination letters relating to the AMD Saving
\nPlan or Company DC Plan being qualified under the applicable provision of the
\nCode, to have AMD cause the trustee of the AMD Saving Plan to transfer assets
\nrepresenting the full account balances of the Transferred Employees, together
\nwith the appropriate net investment return (including unrealized appreciation or
\ndepreciation) thereon, if applicable, reduced by any necessary benefit or
\nwithdrawal payments made in respect of Transferred Employees prior to the actual
\ndate of transfer, to the trustee of the Company DC Plan. The assets to be
\ntransferred from the trust under the AMD Saving Plan pursuant to this Section
\n8.4(f) shall be in cash or, to the extent mutually agreed to by AMD and the
\nCompany, a combination of cash, securities and other property; provided,
\nhowever, that any outstanding loans attributable to the accounts of the
\nTransferred Employees shall be transferred in kind, if transferred, the actual
\namount transferred from the trust under the AMD Saving Plan shall be adjusted to
\nreflect any normal and reasonable administrative expenses properly attributable
\nto the accounts of the Transferred Employees during the period following the
\nClosing Date. At the time the assets that are held in the trust with respect to
\nthe Transferred Employees under the AMD Saving Plan are paid to the trust under
\nthe Company DC Plan, the Company DC Plan shall assume all liabilities of the AMD
\nSaving Plan for the applicable benefits so transferred, and such transfer shall
\nbe in full discharge of all obligations of the AMD Saving Plan in respect
\nthereof. If elected, this transfer shall take place as soon as practicable.
\nDuring the period following the Closing Date and preceding the transfer of
\nassets and liabilities pursuant to this Section 8.4(f)(iii), (1) AMD shall take
\nsuch action as is necessary to prevent a default by any Transferred Employee
\nwith an outstanding loan from the AMD Saving Plan unless and until such
\nTransferred Employee fails to make a timely payment on such loan and (2) the
\nCompany will cooperate with and assist AMD or its designee in the continued
\nadministration of the AMD Saving Plan, including, subject to the consent of the
\nTransferred Employee, collecting and remitting to the trustee of the AMD Saving
\nPlan payroll deductions relating to any outstanding loans. Notwithstanding the
\nabove, the amount transferred to the trust under the Company DC Plan shall in no
\nevent be less than the amount necessary to satisfy the requirements of Section
\n414(1) of the Code and ERISA. If the Company elects such option, on or
\nimmediately prior to the Closing Date, the Company shall (i) establish or
\ndesignate one or more of the Company DC Plan, and furnish AMD with the most
\nrecent favorable determination letter from the Internal Revenue Service relating
\nto the Company DC Plan or certification, in a manner reasonably acceptable to
\nAMD, that the Company DC Plan is qualified under applicable provisions of the
\nCode as promptly as practicable, (ii) take any necessary action to qualify the
\nCompany DC Plan under the applicable provisions of the Code and (iii) make all
\nfilings and submissions to appropriate governmental agencies required of it in
\nconnection with a transfer of assets as described herein.<\/p>\n
(g) LLC shall cause the Company to take all action reasonably
\nnecessary and appropriate to provide that Transferred Employees shall, effective
\nas of the Hire Date (but subject to subsections (i) and (j)), be entitled to
\nparticipate in plans or programs established or <\/p>\n
30<\/p>\n
amended by the Company that provide coverages and benefits which in the
\naggregate are substantially comparable to the coverages and benefits provided by
\nthe Plans and Programs of AMD in which such Transferred Employees participated
\nimmediately prior to the Closing Date.<\/p>\n
(h) To the extent the Company is unable to establish health and\/or
\ndental plans and programs in accordance with this Section, the parties mutually
\nagree to cooperate to execute an arrangement pursuant to which AMD will use its
\nReasonable Efforts to provide such health and\/or dental benefits to Transferred
\nEmployees for a transitional period not to exceed sixty (60) days following the
\nClosing Date at a cost consistent with the historical costs associated with such
\nbenefit plans plus certain administrative fees. The cost of such coverage and
\nfees shall promptly be paid to AMD by the Company.<\/p>\n
(i) Subject to restrictions and limitations imposed by Applicable
\nLaw, LLC shall cause the Company to (i) make participation in employee welfare
\nbenefit plans available to Transferred Employees on the Hire Date or as soon as
\npracticable thereafter and (ii) cause its employee welfare benefit plans and
\nprograms to provide coverage to the Transferred Employees without regard to any
\nwaiting period, evidence and requirement of insurability, preexisting condition,
\nactively at work requirement or exclusion or limitation (except to the extent
\nand in the manner any such waiting period, evidence and requirement of
\ninsurability, preexisting condition, actively at work requirement or exclusion
\nor limitation applies immediately prior to the Closing).<\/p>\n
(j) Subject to restrictions and limitations imposed by Applicable
\nLaw, LLC agrees to cause the Company to (i) for purposes of determining
\neligibility to become a participant in its employee pension benefit plans and
\nprograms and its employee welfare benefit plans and programs, to treat a
\nTransferred Employee’s service with AMD or any of its predecessors or affiliates
\nsince last date of hire through the Hire Date as service with the Company, (ii)
\nfor purposes of determining vesting in its employee pension benefit plans and
\nprograms, to treat a Transferred Employee’s service with AMD or any of its
\npredecessors or affiliates since last date of hire through the Hire Date as
\nservice with the Company and (iii) for purposes of vacations, seniority and
\nother programs and benefits which consider service, to treat a Transferred
\nEmployee’s service with AMD or any of its predecessors or affiliates since last
\ndate of hire through the Hire Date as service with the Company.<\/p>\n
(k) AMD agrees to provide LLC and the Company with such records as
\nLLC may reasonably request regarding service of and participation by the CPD
\nEmployees prior to the Hire Date in AMD’s Plans and Programs.<\/p>\n
(l) No provision in this Agreement shall create any third party
\nbeneficiary rights in any CPD Employee or Transferred Employee (or any
\nbeneficiaries, dependents, or collective bargaining representatives thereof),
\nwith respect to the terms and conditions of employment of any such CPD Employee
\nor Transferred Employee, including, but not limited to, the type or level of
\ncompensation or benefits provided by LLC, the Company or AMD.<\/p>\n
(m) The Company shall be liable for continuation of health care
\ncoverage required by Code Section 4980B and ERISA Sections 601 through 608
\n(“COBRA”) with respect to any “qualifying event” (as defined in Section
\n —–
\n4980B(f)(3) of the Code) with respect to a <\/p>\n
31<\/p>\n
Transferred Employee (and covered family members of a Transferred Employee)
\noccurring after such employee’s respective Hire Date, including termination. AMD
\nshall be liable for health care continuation required by COBRA for any of its
\nemployees who are not Transferred Employees.<\/p>\n
(n) AMD agrees that it will pay any and all amounts due with respect
\nto any accrued vacation balance as of the Closing Date and accrued personal paid
\nabsences as of the Closing Date to (i) any Transferred Employee on the Closing
\nDate and (ii) any Inactive Employee, Visa Employee or International Employee on
\nthe date that such Inactive Employee, Visa Employee or International Employee
\nbecomes a Transferred Employee.<\/p>\n
8.5 Additional Audited Financial Statements.
\n ————————————— <\/p>\n
AMD shall use its Reasonable Efforts to deliver to LLC an audited
\nbalance sheet of the Business as of December 27, 1998 and audited income
\nstatements and statement of cash flows of the Business for the years ended
\nDecember 28, 1997 and December 27, 1998, each prepared in accordance with GAAP,
\nby September 30, 2000.<\/p>\n
8.6 Noncompetition.
\n ————– <\/p>\n
(a) AMD agrees that, for the period from the Closing to the date
\nwhich is the second anniversary of the Closing Date, neither AMD nor any of
\nAMD’s controlled Affiliates will, directly or indirectly, for its own benefit or
\nas agent of another, carry on or own, manage or operate, participate in, or
\ncontrol the management or operation of, or allow its name to be used in, the
\nCommunications Products Business (i) in the State of California, (ii) in the
\nState of Texas and (iii) in the United States of America. For purposes of this
\nSection 8.6, the “Communications Products Business” shall mean the design,
\nmanufacture and sale of (1) communications infrastructure equipment including,
\nbut not limited to, Subscriber Line Interface Circuits (SLIC), Subscriber Line
\nAudio processing Circuits (SLAC), and integrated circuits designed for and
\ndedicated to the communication of voice or voice and data over public and
\nprivate communications networks, (2) integrated circuits designed for and
\ndedicated to communication of voice or voice and data over cordless telephones,
\n(3) integrated circuits designed for and dedicated to communication of voice or
\nvoice and data over wireless telephones (specifically excluding data only
\ninternet access devices); and (4) integrated circuits designed for Digital
\nSubscriber Line (DSL) equipment intended for ATU-C applications.<\/p>\n
(b) Nothing contained herein shall (i) limit AMD (A) from acquiring
\n(including through a merger) or investing in any business, development
\narrangement or joint venture whose primary activities do not constitute a
\nCommunications Products Business, or (B) from, directly or indirectly, holding
\nor making investments in securities of any business listed on a national
\nsecurities exchange, admitted to trading in an automated quotations market
\ntraded generally on the over-the-counter market, so long as AMD’s direct or
\nindirect holdings do not exceed 5% of the outstanding equity securities thereof,
\nor (ii) apply to the activities of any Person merging with or into AMD, or
\nacquiring, directly or indirectly, the equity securities of, or control of, AMD,
\nprovided that such activities have been conducted prior to such merger or
\nacquisition by such Person.<\/p>\n
32<\/p>\n
(c) AMD recognizes and agrees that compliance with the covenant
\ncontained in this Section 8.6 is necessary to protect LLC and the Company and
\nthat a breach by AMD of any of the covenants set forth in this Section 8.6 could
\ncause irreparable harm to LLC, that LLC’s remedies at law in the event of such
\nbreach would be inadequate, and that, accordingly, in the event of such breach,
\na restraining order or injunction or both may be issued against AMD, in addition
\nto any other rights and remedies which are available to LLC. If this Section 8.6
\nis more restrictive than permitted by the law of any jurisdiction in which LLC
\nseeks enforcement hereof, this Section 8.6 shall be limited to the extent
\nrequired to permit enforcement under such laws. In particular, the parties
\nintend that the covenants in the preceding portions of this Section 8.6 shall be
\nconstrued as a series of separate covenants, one for each location specified.
\nExcept for geographic coverage, each such separate covenant shall be deemed
\nidentical in terms. If, in any judicial proceeding, a court shall refuse to
\nenforce any of the separate covenants deemed included in this Section 8.6, then
\nsuch unenforceable covenant shall be deemed eliminated from these provisions for
\nthe purpose of those proceedings to the extent necessary to permit the remaining
\nseparate covenants to be enforced. If any court of competent jurisdiction shall
\ndetermine the foregoing covenant to be unenforceable with respect to the term or
\nthe scope of the subject matter or geography covered thereby, then such covenant
\nshall nevertheless be enforceable by such court against the other party upon
\nsuch shorter term or within such lesser scope as may be determined by such court
\nto be reasonable and enforceable.<\/p>\n
8.7 Distributor Price Adjustments. The Company will, within 15 days
\n —————————–
\nafter the end of the month in which the Closing occurs, provide AMD with a
\nstatement of distributor price adjustments for the period on and before the
\nClosing Date. AMD will promptly pay the Company the amount of the distributor
\nprice adjustments for the period on and before the Closing Date.<\/p>\n
8.8 Required Consents. To the extent that any Required Consent is not
\n —————–
\nobtained on or before the Closing Date, AMD will use its Reasonable Efforts for
\na reasonable period of time following the Closing to obtain such Required
\nConsent as soon as practicable after the Closing Date.<\/p>\n
ARTICLE IX.
\n TAX MATTERS<\/p>\n
9.1 Tax Returns Through the Closing Date; Cooperation.
\n ————————————————- <\/p>\n
(a) AMD shall include the income of the Company on AMD’s consolidated
\nfederal income Tax Returns for all periods through the Closing Date and timely
\npay any federal income Taxes attributable to such income. All such Tax Returns
\n(i) will be filed when due in accordance with all applicable laws and (ii) will
\nbe true and complete in all material respects. The Company shall furnish Tax
\ninformation to AMD for inclusion in AMD’s federal consolidated income Tax Return
\nfor the period that includes the Closing Date in accordance with AMD’s past
\ncustom and practice. The income of the Company shall be apportioned to the
\nperiod up to and including the Closing Date and the period after the Closing
\nDate by closing the books of the Company as of the end of the Closing Date.<\/p>\n
33<\/p>\n
(b) AMD shall prepare and file with the appropriate authorities all
\nTax Returns of the Company not covered by Section 9.1(a) hereof for all taxable
\nperiods of the Company ending on or prior to the Closing Date (“Pre-Closing
\n ———–
\nPeriods”), and shall timely pay all Taxes due with respect to such Tax Returns.
\n——-
\nAll such Tax Returns (i) will be filed when due in accordance with all
\napplicable laws and (ii) will be true and complete in all material respects.<\/p>\n
(c) LLC shall cause the Company to prepare and file with the
\nappropriate authorities all Tax Returns of the Company for all taxable periods
\nbeginning after the Closing Date (“Post-Closing Periods”) and all complete
\n ——————–
\ntaxable periods that include, but do not end on, the Closing Date (“Straddle
\n ——–
\nPeriods”), and shall timely pay all Taxes due with respect to such Tax Returns;
\n——-
\nprovided, however, that (i) LLC shall not permit the Company to file a Tax
\nReturn in respect of a Straddle Period without AMD’s prior written consent,
\nwhich shall not be unreasonably withheld, and (ii) AMD shall reimburse the
\nCompany for any Taxes owed by the Company with respect to the portion of any
\nStraddle Period related to the Pre-Closing Period. For purposes of allocating
\nTaxes to the portion of any Straddle Period related to the Pre-Closing Period,
\nto the extent permitted by law and administrative practice, the Straddle Period
\nshall be treated as closing on (and including) the Closing Date. In the case of
\nany Taxes that are payable for a Straddle Period that is not treated under the
\npreceding sentence as closing on the Closing Date, the portion of such Tax
\nrelated to the Pre-Closing Period shall be deemed to be: (i) in the case of
\nreal, personal and intangible property Taxes (“Property Taxes”) of the Company
\n ————–
\nfor the Pre-Closing Period, the amount of such Tax for the Straddle Period shall
\nbe equal to the amount of such Property Taxes for the entire Straddle Period
\nmultiplied by a fraction, the numerator of which is the number of days during
\nthe Straddle Period that are in the Pre-Closing Period and the denominator of
\nwhich is the number of days in the Straddle Period, and (ii) the Taxes of the
\nCompany other than Property Taxes for the Pre-Closing Period shall be computed
\nas if such taxable period ended as of the close of business on the Closing Date.<\/p>\n
(d) AMD, the Company, and LLC shall reasonably cooperate and shall
\ncause their respective Affiliates, officers, employees, agents, auditors and
\nrepresentatives reasonably to cooperate, in preparing and filing all Tax Returns
\nrelating to Taxes, including maintaining and making available to each other all
\nrecords necessary in connection with Taxes and in resolving all disputes and
\naudits with respect to all taxable periods relating to Taxes. In that
\nconnection, as soon as practicable, but in any event within 45 days after it is
\nrequested by LLC or AMD after the Closing Date, the other party will deliver to
\nthe requesting party such information and data concerning the pre-Closing
\noperations of the Company and make available such knowledgeable employees of the
\nCompany as such requesting party may reasonably request, including providing
\ninformation and data required by the requesting party’s customary tax and
\naccounting questionnaires, in order to enable the requesting party to complete
\nand file all forms and reports which it may be required to file as to the
\noperations of the Company through the Closing Date or to otherwise enable the
\nrequesting party to satisfy its internal accounting, tax and other legitimate
\nrequirements. In addition to the foregoing, AMD and LLC agree, and LLC agrees to
\ncause the Company (i) to use the respective party’s Reasonable Efforts to
\nproperly retain and maintain all records related to Taxes of the Company for all
\nPre-Closing Periods until such time as the other party agrees (which agreement
\nshall not be unreasonably withheld) that such retention and maintenance is no
\nlonger necessary (but in no event shall such retention be required for more <\/p>\n
34<\/p>\n
than five years), and (ii) to allow LLC and AMD, as the case may be, and their
\nrespective agents and representatives (and agents and representatives of their
\naffiliates), at times and dates mutually acceptable to the parties, to inspect,
\nreview and make copies of such records as the requesting party may deem
\nnecessary and appropriate from time to time, such activities to be conducted
\nduring normal business hours and at the requesting party’s expense.<\/p>\n
9.2 Tax Indemnification.
\n ——————- <\/p>\n
(a) AMD hereby indemnifies each LLC Indemnified Party against and
\nagrees to hold each LLC Indemnified Party harmless from any (w) Tax of the
\nCompany described in clause (i) of the definition of Tax related to a Pre-
\nClosing Period or the pre-Closing portion of any Straddle Period, (x) Tax
\ndescribed in clause (ii) or (iii) of the definition of Tax, (y) Tax of the
\nCompany resulting from a breach of the provisions of Section 3.13 or Article IX,
\nand (z) liabilities, costs, expenses (including, without limitation, reasonable
\nexpenses of investigation and attorneys’ fees and expenses), losses, damages,
\nassessments, settlements or judgments arising out of or incident to the
\nimposition, assessment or assertion of any Tax described in (w), (x) or (y), and
\nany liability as transferee (the sum of (w), (x), (y), and (z) being referred to
\nherein as a “Tax Loss”).<\/p>\n
(b) With respect to any claim that is made by any taxing authority
\nwhich, if successful, might result in an indemnity payment to LLC or any of its
\naffiliates indemnified hereunder (a “Tax Claim”) (other than a Tax Claim
\n ———
\nrelating to Taxes of the Company for a Straddle Period), AMD shall, at its sole
\nexpense control all proceedings, including but not limited to audits, taken in
\nconnection with such Tax Claim (including selection of counsel) and, without
\nlimiting the foregoing, may in its sole discretion pursue or forego any and all
\nadministrative appeals, proceedings, hearings and conferences with any taxing
\nauthority with respect thereto, and may, in its sole discretion, either pay the
\nTax claimed and sue for a refund where applicable law permits such refund suits
\nor contest the Tax Claim in any permissible manner; provided, however, that AMD
\nshall not take any position or enter into any settlement with respect to any
\nsuch proceeding which materially adversely affects the tax liability of LLC, any
\nof its Affiliates, or, on or after the Closing Date, the Company (including but
\nnot limited to the basis of the Company in the CPD Assets and the allocation of
\nsuch basis), without the prior written consent of LLC. With respect to any such
\nTax Claims as to which AMD asserts control, AMD shall not assert that such Tax
\nClaim (or portion thereof) is not within the ambit of Section 9.2(a). AMD and
\nLLC shall jointly control all proceedings taken in connection with any Tax Claim
\nrelating to Taxes of the Company for a Straddle Period. In no case shall LLC,
\nthe Company, or any of their respective officers, directors, employees,
\nstockholders, agents or representatives settle or otherwise compromise any Tax
\nClaim without AMD’s written consent, which shall not be unreasonably withheld.
\nNeither party shall settle a Tax Claim relating to Taxes of the Company for any
\nStraddle Period without the other party’s prior written consent, which shall not
\nbe unreasonably withheld. LLC, the Company, and each of their respective
\nAffiliates shall cooperate with AMD in contesting any Tax Claim, which
\ncooperation shall include, without limitation, the retention and (upon AMD’s
\nreasonable request) the provision to AMD of records and information which are
\nreasonably relevant to such Tax Claim, and making employees available on a
\nmutually convenient basis to provide additional information or <\/p>\n
35<\/p>\n
explanation or any material provided hereunder or to testify at proceedings
\nrelating to such Tax Claim.<\/p>\n
(c) Upon payment by any LLC Indemnified Party of any Tax Loss, AMD
\nshall discharge its obligation to indemnify LLC Indemnified Party against such
\nTax Loss by payment to LLC an amount equal to the amount of such Tax Loss;
\nprovided, however, that if LLC provides AMD with written notice of a Tax Loss at
\nleast 60 days prior to the date on which the relevant Tax Loss is required to be
\npaid by any LLC Indemnified Party, AMD shall discharge its obligation to
\nindemnify LLC against Tax Loss by paying, as directed by LLC, an amount equal to
\nthe amount of such Tax Loss. Any payment pursuant to this Section 9.2 shall be
\nmade not later than 60 days after receipt by AMD of written notice from LLC in
\naccordance with the foregoing proviso or stating that any Tax Loss has been
\nincurred by a LLC Indemnified Party and the amount thereof and of the indemnitee
\npayment requested. The payment by a LLC Indemnified Party of any Tax Loss shall
\nnot relieve AMD of its obligation under this Section 9.2.<\/p>\n
(d) Any claim of any LLC Indemnified Party (other than LLC) under
\nthis Section may be made and enforced by LLC on behalf of such LLC Indemnified
\nParty.<\/p>\n
9.3 Refunds. AMD shall be entitled to any refunds or credits
\n ——-
\n(including any interest paid or credited with respect thereto) in respect of any
\nliability for any Tax of AMD or any of its Affiliates (including, without
\nlimitation, the Company), for any Tax periods or portion thereof ending on or
\nbefore the Closing Date (including any Taxes allocated to such period under
\nSection 9.1(c) hereof) or for which AMD is otherwise liable under this
\nAgreement. The Company shall be entitled to any refunds or credits (including
\nany interest paid or credited with respect thereto) in respect of any liability
\nfor any Tax of the Company or any of its Affiliates, for any Tax periods or
\nportion thereof beginning after the Closing Date (including any Taxes allocated
\nto such period under Section 9.1(c) hereof) and for which AMD does not have an
\nindemnification obligation under this Agreement. Each party shall cause any
\namount to which the other party is entitled under this Section 9.3, but which is
\nreceived or credited to the party not so entitled or any of such party’s
\nAffiliates, at any time after the Closing Date, to be paid to the party so
\nentitled in immediately available funds promptly after receipt (or, if the
\namount of the credit or refund is applied against any other liability of the
\nparty not so entitled, within ten days of the notice of such application).<\/p>\n
9.4 Conduct of Business on Closing Date. On the Closing Date, LLC
\n ———————————–
\nshall cause the Company to conduct its business in the ordinary course in
\nsubstantially the same manner as presently conducted and shall not permit the
\nCompany to effect any extraordinary transactions (other than any such
\ntransactions expressly required by applicable law or by this Agreement) (or any
\nAncillary Agreement) that could result in Tax liability for the Company in
\nexcess of the Tax liability associated with the conduct of its business in the
\nordinary course.<\/p>\n
9.5 Tax Sharing Agreements. AMD shall cause the provisions of any Tax
\n ———————-
\nsharing agreement between AMD and any of its Affiliates (other than the
\nCompany), on the one hand, and the Company, on the other hand, to be terminated
\non or before the Closing Date.<\/p>\n
36<\/p>\n
9.6 Changes to Elections, Etc. Without the prior written consent of
\n ————————-
\nLLC, none of AMD, the Company and any Affiliate of AMD shall, to the extent it
\nmay affect or relate to the Company, make or change any Tax election, change any
\nannual Tax accounting period, adopt or change any method of Tax accounting, file
\nany amended Tax Return, enter into any closing agreement, settle any Tax claim
\nor assessment, surrender any right to claim a Tax refund, consent to any
\nextension or waiver of the limitations period applicable to any Tax claim or
\nassessment or take or omit to take any other action, if any such action or
\nomission would have the effect of materially increasing the Tax liability of the
\nCompany, LLC or any Affiliate of LLC in respect of any Post-Closing Period.
\nWithout AMD’s prior written consent, LLC shall not cause or permit the Company
\nand any other Affiliate of LLC to make or change any Tax election, change any
\nannual Tax accounting period, adopt or change any method of Tax accounting, file
\nany amended Tax Return, enter into any closing agreement, settle any Tax Claim
\nor assessment, surrender any right to claim a Tax refund, consent to any
\nextension or waiver of the limitations period applicable to any Tax claim or
\nassessment or take or omit to take any other action, if such action or omission
\nwould have the effect of materially increasing the Tax liability or materially
\nreducing any Tax asset of AMD or any of its Affiliates in respect of any Pre-
\nClosing Period.<\/p>\n
9.7 Characterization as Price Adjustment. All amounts paid pursuant
\n ————————————
\nto this Agreement by one party to another party (other than interest payments)
\nshall be treated by such parties as an adjustment to the Stock Purchase Price.<\/p>\n
9.8 Allocation of Sales Price. Within sixty days after the Closing
\n ————————-
\nDate, LLC shall provide AMD with its proposed allocation of the sale price to
\nthe CPD Assets. LLC and AMD agree to cooperate in good faith to reach an agreed
\nallocation of federal income tax basis to the CPD Assets. LLC and AMD shall file
\nall Tax Returns in a manner which is consistent with the federal income tax
\ntreatment of the transaction set forth herein or determined pursuant to this
\nprovision.<\/p>\n
9.9 Texas Transfer Tax Matters. LLC and AMD intend to treat the
\n ————————–
\ntransactions contemplated by this Agreement and the Ancillary Agreements as an
\n“occasional sale” within the meaning of section 151.304 of the Texas Limited
\nSales, Excise and Use Tax Act, and AMD will treat such transactions consistently
\ntherewith on the return required to be filed it for Texas Limited Sales, Excise
\nand Use Tax purposes for the taxable period to which such transactions relate.<\/p>\n
9.10 Tax Treatment. LLC and AMD agree that the transactions
\n ————
\ncontemplated by this Agreement and the Reorganization Agreement are intended to
\nconstitute a taxable sale of the CPD Assets by AMD and agree to treat such
\ntransactions consistently therewith for all income tax purposes, unless
\notherwise required by an applicable taxing authority (which requirement is not
\ninitiated by AMD).<\/p>\n
37<\/p>\n
ARTICLE X.
\n INDEMNIFICATION; SURVIVAL OF
\n REPRESENTATIONS, ETC.<\/p>\n
10.1 Survival of Representations, Etc. The covenants, representations
\n ——————————–
\nand warranties contained herein shall survive the Closing Date until, and claims
\nbased upon or arising out of such representations and warranties, as well as any
\nclaims based upon or arising out of any covenants and agreements herein or made
\nhereunder, may be asserted at any time before, 5:00 p.m. Pacific Time on the
\nfirst anniversary of the Closing Date, at which time, such covenants,
\nagreements, representations and warranties shall expire and terminate, provided,
\nhowever, that (i) the representations and warranties of AMD respecting Taxes set
\nforth in Section 3.13 shall survive the Closing for the applicable statute of
\nlimitations, at which time such representations and warranties shall expire and
\nterminate; (ii) the obligation of AMD to indemnify LLC for any loss arising out
\nof any Retained Liabilities pursuant to Section 10.2(a)(i), shall survive the
\nClosing without limitation as to time; (iii) the obligation of LLC to indemnify
\nAMD for any loss arising out of the Assumed Liabilities or for the ownership and
\noperation of the Business or the Company from and after the Closing, in each
\ncase pursuant to Section 10.2(a)(ii), shall survive the Closing without
\nlimitation as to time; (iv) the obligation of AMD to indemnify LLC for any loss
\narising out of Intellectual Property Liabilities pursuant to Section
\n10.2(a)(i)(C) shall survive the Closing without limitation as to time; and (v)
\nthe covenants and agreements of AMD or LLC under this Agreement to be performed
\nafter Closing Date shall survive the Closing, to the extent specifically
\nprovided herein (as applicable, the “Survival Period”). The termination of the
\n —————
\nrepresentations, warranties, covenants and agreements provided herein shall not
\naffect the rights of a party in respect of any claim made by such party in a
\nwriting received by the other party prior to the expiration of the Survival
\nPeriod, nor shall it affect the rights of a party in respect of any claim made
\nby such party at any time hereafter in respect of any Assumed Liabilities or
\nRetained Liabilities. Notwithstanding anything to the contrary in this
\nAgreement, indemnification for breaches of representations, warranties,
\ncovenants and agreements related to Taxes shall be covered exclusively by
\nArticle IX of this Agreement.<\/p>\n
10.2 Indemnification.
\n ————— <\/p>\n
(a) General.
\n ——- <\/p>\n
(i) Subject to Section 10.1, subsequent to the Closing
\n Date, AMD shall indemnify LLC, its Affiliates, and each of their respective
\n partners, officers, directors, employees, stockholders and agents (the
\n “LLC—Indemnified Parties”) against, and hold each of LLC Indemnified
\n ————————-
\n Parties harmless from, any Losses incurred by any such LLC Indemnified
\n Party, that are incident to, arise out of, are in connection with, or are
\n related to, whether directly or indirectly, (A) the breach of any warranty,
\n representation, covenant or agreement of AMD contained in this Agreement,
\n (B) the Retained Liabilities (other than those described in clause (m) of
\n the definition of Retained Liabilities) or (C) Intellectual Property
\n Liabilities.<\/p>\n
38<\/p>\n
(ii) Subject to Section 10.1, subsequent to the Closing Date,
\n LLC shall indemnify AMD, its Affiliates, and each of their respective
\n partners, officers, directors, employees, stockholders and agents (the “AMD
\n —
\n Indemnified Parties”) against, and hold each of AMD Indemnified Parties
\n ——————-
\n harmless from, any Losses incurred by such AMD Indemnified Party, that are
\n incident to, arise out of, are in connection with, or are related to,
\n whether directly or indirectly, (A) the breach of any warranty,
\n representation, covenant or agreement of LLC contained in this Agreement,
\n (B) the Assumed Liabilities (except for those Liabilities with respect to
\n which any LLC Indemnified Party is entitled to indemnification from AMD
\n pursuant to Section 10.2(a)(i)(A)) or (C) the ownership and operation of
\n the Business or the Company from and after the Closing.<\/p>\n
(b) Procedure For Claims. If a claim for Losses (a “Claim”) is to be
\n ——————– —–
\nmade by a Person entitled to indemnification hereunder, the Person claiming such
\nindemnification (the “Indemnified Party”) shall give written notice (a “Claim
\n —————– —–
\nNotice”) to the indemnifying Person (the “Indemnifying Party”) as soon as
\n—— ——————
\npracticable after the Indemnified Party becomes aware of any fact, condition or
\nevent which may give rise to Losses for which indemnification may be sought
\nunder this Section 10.2. The failure of any Indemnified Party to give timely
\nnotice hereunder shall not affect rights to indemnification hereunder, except to
\nthe extent that the Indemnifying Party demonstrates actual damage caused by such
\nfailure. In the case of a Claim involving the assertion of a claim by a third
\nparty (whether pursuant to a lawsuit or other legal action or otherwise, a
\n“Third-Party Claim”), (A) the Indemnifying Party shall be entitled, if it so
\n ——————
\nelects, at its own cost, risk and expense, (1) to take control of the defense
\nand investigation of such Third-Party Claim and (2) to pursue the defense
\nthereof by appropriate actions or proceedings, including, without limitation, to
\nemploy and engage attorneys of its own choice reasonably acceptable to the
\nIndemnified Party to handle and defend the same, and (B) the Indemnifying Party
\nshall be entitled (but not obligated), if it so elects, to compromise or settle
\nsuch claim, which compromise or settlement shall be made only with the written
\nconsent of the Indemnified Party, such consent not to be unreasonably withheld.
\nIn the event the Indemnifying Party elects to assume control of the defense and
\ninvestigation of such lawsuit or other legal action in accordance with this
\nSection 10.2(b), the Indemnified Party may, at its own cost and expense,
\nparticipate in the investigation, trial and defense of such Third-Party Claim.
\nIf the Indemnifying Party fails to assume the defense of such Third-Party Claim
\nin accordance with this Section 10.2 within 30 calendar days after receipt of
\nthe Claim Notice, the Indemnified Party against which such Third-Party Claim has
\nbeen asserted shall (upon delivering notice to such effect to the Indemnifying
\nParty) have the right to undertake, at the Indemnifying Party’s cost, risk and
\nexpense, the defense, compromise and settlement of such Third-Party Claim on
\nbehalf of and for the account of the Indemnifying Party; provided that such
\nThird-Party Claim shall not be compromised or settled without the written
\nconsent of the Indemnifying Party, which consent shall not be unreasonably
\nwithheld. In the event the Indemnifying Party assumes the defense of the claim,
\nthe Indemnifying Party shall keep the Indemnified Party reasonably informed of
\nthe progress of any such defense, compromise or settlement, and in the event the
\nIndemnified Party assumes the defense of the claim, the Indemnified Party shall
\nkeep the Indemnifying Party reasonably informed of the progress of any such
\ndefense, compromise or settlement. The Indemnifying Party shall be liable for
\nany settlement of any Third-Party Claim effected pursuant to and in accordance
\nwith this Section 10.2 and for any final judgment (subject to any right of<\/p>\n
39<\/p>\n
appeal), and the Indemnifying Party agrees to indemnify and hold harmless each
\nIndemnified Party from and against any and all Losses by reason of such
\nsettlement or judgment.<\/p>\n
10.3 Threshold; Limitations on Liability.
\n ———————————– <\/p>\n
(a) Except as provided in Sections 10.3(c) and 10.3(d), LLC
\nIndemnified Parties shall not be entitled to recover for any Losses pursuant to
\nthis Article X until such time as the Losses claimed by LLC Indemnified Parties
\nin the aggregate exceed $6,000,000, and then only to the extent of such excess.<\/p>\n
(b) Except as provided in Section 10.3(c), the maximum aggregate
\namount of Losses for which AMD Indemnifying Parties shall be liable pursuant to
\nthis Article X shall be $60,000,000.<\/p>\n
(c) The thresholds and limitations set forth in this Section 10.3
\nshall not apply with respect to any Claim by an Indemnified Party with respect
\nto: (i) the Retained Liabilities (in the case of a Claim by a LLC Indemnified
\nParty); or (ii) the breach of any covenant or agreement to be performed after
\nthe Closing.<\/p>\n
(d) With respect to the obligation of AMD Indemnifying Parties to
\nindemnify LLC Indemnified Parties for any Intellectual Property Liabilities
\npursuant to Section 10.2(a)(i)(C), the maximum amount of Losses for which AMD
\nIndemnifying Parties shall be liable pursuant to this Article X shall be
\n$10,000,000. The threshold set forth in Section 10.3(a) shall not apply in the
\ncase of a Claim by an LLC Indemnified Party with respect to any Intellectual
\nProperty Liabilities.<\/p>\n
10.4 Insurance Proceeds. To the extent that any Claim is covered by
\n ——————
\ninsurance held by the Indemnified Party, such Indemnified Party shall be
\nentitled to indemnification pursuant to this Article X only with respect to the
\namount of Losses that are in excess of the cash proceeds received by such
\nIndemnified Party pursuant to such insurance. If such Indemnified Party receives
\nsuch cash insurance proceeds prior to the time such Claim is paid, then the
\namount payable by the Indemnifying Party pursuant to such Claim shall be reduced
\nby the amount of such insurance proceeds. If such Indemnified Party receives
\nsuch cash insurance proceeds after such Claim is paid, then upon receipt by the
\nIndemnified Party of any cash proceeds pursuant to such insurance with respect
\nto such Claim, such Indemnified Party shall repay any portion of such amount
\nwhich was previously paid by the Indemnifying Party to the Indemnified Party in
\nsatisfaction of such Claim.<\/p>\n
10.5 Indemnification as Exclusive Remedy. Subsequent to the Closing,
\n ———————————–
\nwith respect to any matter as to which indemnification is provided pursuant to
\nArticle IX or X of this Agreement, such indemnification shall be the sole remedy
\navailable to the indemnified party. Notwithstanding the foregoing, the parties
\nhereto may exercise their rights under this Agreement and applicable law to
\nequitable remedies, including, without limitation, specific performance and
\ninjunction.<\/p>\n
40<\/p>\n
ARTICLE XI.
\n MISCELLANEOUS<\/p>\n
11.1 Termination. This Agreement may be terminated and the
\n ———–
\ntransactions contemplated hereby abandoned (a) by mutual agreement of AMD and
\nLLC or (b) by either AMD or LLC if the conditions to such parties’ obligations
\nset forth in Articles VI and VII, as the case may be, have not been satisfied
\n(unless waived by the party entitled to the benefit thereof), and the Closing
\nhas not occurred on or before September 30, 2000 without liability of either
\nparty hereto; provided, however, that no party shall be released from liability
\nhereunder if this Agreement is terminated and the transactions abandoned by
\nreason of the failure of such party to have performed its obligations hereunder.
\nIn the event that a condition precedent to a party’s obligations is not
\nsatisfied, nothing contained herein shall be deemed to require any party to
\nterminate this Agreement, rather than to waive such condition precedent and
\nproceed with the transactions contemplated hereby. Except as provided above, if
\nthis Agreement is terminated and the transactions contemplated hereby are not
\nconcluded as described above, this Agreement will become void and of no further
\nforce and effect; provided, however, that the Confidentiality Agreement shall
\nsurvive any termination of this Agreement.<\/p>\n
11.2 Assignment. This Agreement shall be binding upon and inure to
\n ———-
\nthe benefit of the heirs, personal representatives, successors and assigns of
\nthe parties. No party hereto may assign or transfer any of its rights or
\nobligations under this Agreement, except with the prior written consent of the
\nother parties hereto, except that the Company shall be entitled to assign its
\nrights hereunder to or for the account of the Senior Secured Lender solely and
\nspecifically for the purpose of securing the Financing, which assignment shall
\nnot affect the Company’s obligations under this Agreement.<\/p>\n
11.3 No Third Party Beneficiaries; No Recourse. This Agreement is for
\n —————————————–
\nthe sole benefit of the parties and nothing herein expressed or implied shall
\ngive or be construed to give any person or entity other than the parties any
\nlegal or equitable rights hereunder. The directors, officers and stockholders of
\nthe parties hereto and their Affiliates shall not any personal liability or
\nobligation arising under this Agreement or the Ancillary Agreements or any
\ntransaction contemplated hereby or thereby solely by reason of their capacity as
\nsuch.<\/p>\n
11.4 Costs and Expenses. Except as otherwise specifically provided
\n ——————
\nherein, all costs and expenses incurred by or on behalf of AMD, the Company and
\nLLC, including, without limitation, all fees and expenses of agents,
\nrepresentatives, counsel and accountants employed in connection with the
\nauthorization, preparation, execution, and performance of this Agreement or
\nother matters relating thereto shall be borne solely by the party that incurred
\nthe same and the other party shall have no liability with respect thereof. AMD
\nand the Company shall each pay half of (i) all fees to effect the transfer of
\nthe CPD Intellectual Property from AMD to the Company, (ii) all fees of Ernst & Young incurred in connection with Ernst & Young’s audit of the financial
\nstatements of the Business for the years ended December 28, 1997, December 27,
\n1998 and December 26, 1999 and (iii) all fees incurred in connection with the
\nsolvency opinion referred to in Section 5.9 of this Agreement. The Company’s
\nobligations for such payments shall be obligations of the Company following the
\nClosing.<\/p>\n
41<\/p>\n
All excise, sales, use, value added, registration stamp, recording,
\ndocumentary, conveyancing, franchise, property, transfer, gains and similar
\nTaxes, levies, charges and fees (collectively, “Transfer Taxes”) incurred in
\n ————–
\nconnection with the transactions contemplated by this Agreement and the
\nReorganization Agreement shall be shared equally by AMD and the Company. LLC,
\nthe Company and AMD shall cooperate in providing each other with any appropriate
\nresale exemption certifications and other similar documentation. The party that
\nis required by applicable law to make the filings, reports, or returns with
\nrespect to any applicable Transfer Taxes shall do so, and the other parties
\nshall cooperate with respect thereto as necessary.<\/p>\n
11.5 Notices. Unless otherwise provided herein, any notice, request,
\n ——-
\ninstruction or other document to be given hereunder by any party to the others
\nshall be in writing and effective when delivered in person or by courier or
\nnationally recognized overnight delivery service (with a receipt obtained
\ntherefor), or by facsimile transmission (with an executed copy mailed as
\ndescribed below), or effective on the date receipt is acknowledged when mailed
\nby certified mail, postage prepaid, return receipt requested, as follows:<\/p>\n
If to AMD (or the Advanced Micro Devices, Inc.
\n Company prior to the One AMD Place
\n Closing): P.O. Box 3453
\n Sunnyvale, California 94088-3453
\n Facsimile: (408) 774-7399
\n Attention: General Counsel <\/p>\n
With a copy to: Latham & Watkins
\n 135 Commonwealth Drive
\n Menlo Park, California 94025
\n Facsimile: (650) 463-2600
\n Attention: Christopher L. Kaufman<\/p>\n
If to LLC (or the BraveTwo Acquisition, L.L.C.
\n Company after c\/o Francisco Partners, L.P.,
\n the Closing): One Maritime Plaza, Suite 2500
\n San Francisco, California 94111
\n Attention: General Counsel
\n Facsimile: (415) 986-1320 <\/p>\n
With a copy to: Davis Polk & Wardwell
\n 1600 El Camino Real
\n Menlo Park, California 94025
\n Attention: William M. Kelly
\n Facsimile: (650) 752-2111<\/p>\n
or to such other place and with such other copies as either party may designate
\nas to itself by written notice to the others.<\/p>\n
42<\/p>\n
11.6 Choice of Law. This Agreement shall be construed, interpreted
\n ————-
\nand the rights of the parties determined in accordance with the internal laws of
\nthe State of California, applicable to contracts to be wholly-performed within
\nCalifornia by California residents, without regard to the conflict of law
\nprinciples thereof.<\/p>\n
11.7 Entire Agreement; Amendments and Waivers. This Agreement,
\n —————————————-
\ntogether with the Disclosure Schedule and all exhibits hereto, the Ancillary
\nAgreements and the Confidentiality Agreement, constitutes the entire agreement
\namong the parties pertaining to the subject matter hereof and supersedes all
\nprior agreements, understandings, negotiations and discussions, whether oral or
\nwritten, of the parties. No supplement, modification or waiver of this Agreement
\nshall be binding unless executed in writing by all parties. No waiver of any of
\nthe provisions of this Agreement shall be deemed or shall constitute a waiver of
\nany other provision hereof (whether or not similar), nor shall such waiver
\nconstitute a continuing waiver unless otherwise expressly provided.<\/p>\n
11.8 Counterparts. This Agreement may be executed in one or more
\n ————
\ncounterparts, each of which shall be deemed an original, but all of which
\ntogether shall constitute one and the same instrument.<\/p>\n
11.9 Invalidity. In the event that any one or more of the provisions
\n ———-
\ncontained in this Agreement or in any other instrument referred to herein,
\nshall, for any reason, be held to be invalid, illegal or unenforceable in any
\nrespect, such invalidity, illegality or unenforceability shall not affect any
\nother provision of this Agreement or any other such instrument.<\/p>\n
11.10 Headings; Interpretation. The headings of the Articles and
\n ————————
\nSections herein are inserted for convenience of reference only and are not
\nintended to be a part of or to affect the meaning or interpretation of this
\nAgreement. The parties have participated jointly in the negotiation and drafting
\nof this Agreement. In the event an ambiguity or question of intent or
\ninterpretation arises, this Agreement shall be construed as if drafted jointly
\nby the parties and no presumption or burden of proof shall arise favoring or
\ndisfavoring any party by virtue of the authorship of any of the provisions of
\nthis Agreement.<\/p>\n
11.11 Publicity. The initial press releases with respect to the
\n ———
\nexecution of this Agreement shall be reasonably acceptable to LLC and AMD.
\nThereafter, so long as this Agreement is in effect, neither LLC, AMD nor any of
\ntheir respective Affiliates shall issue or cause the publication of any press
\nrelease or other announcement with respect to this Agreement or the other
\ntransactions contemplated hereby without the prior consultation of the other
\nparty, except as may be required by law or by any listing agreement with a
\nnational securities exchange.<\/p>\n
43<\/p>\n
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
\nor have caused this Agreement to be duly executed on their respective behalf by
\ntheir respective officers thereunto duly authorized, as of the day and year
\nfirst above written.<\/p>\n
ADVANCED MICRO DEVICES, INC.<\/p>\n
By: \/s\/ Thomas M. McCoy
\n ————————————–
\n Name: Thomas M. McCoy
\n Title: Senior Vice President<\/p>\n
BRAVETWO ACQUISITION, L.L.C.<\/p>\n
By: \/s\/ Benjamin H. Ball
\n ————————————–
\n Name: Benjamin H. Ball
\n Title: Manager <\/p>\n
BOLDCO, INC.<\/p>\n
By: \/s\/ Thomas M. McCoy
\n ————————————–
\n Name: Thomas M. McCoy
\n Title: President<\/p>\n
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