{"id":43365,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/communication-products-division-reorganization-agreement.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"communication-products-division-reorganization-agreement","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/communication-products-division-reorganization-agreement.html","title":{"rendered":"Communication Products Division Reorganization Agreement &#8211; Advanced Micro Devices Inc. and Boldco Inc."},"content":{"rendered":"<pre>\n                           REORGANIZATION AGREEMENT\n\n                                by and between\n\n                         ADVANCED MICRO DEVICES, INC.,\n\n                                      and\n\n                                 BOLDCO, INC.\n\n                           dated as of May 21, 2000\n\n \n                           REORGANIZATION AGREEMENT\n\n          This REORGANIZATION AGREEMENT dated as of the 21\/st\/ day of May, 2000\n(the 'Agreement') by and between Advanced Micro Devices, Inc., a Delaware\ncorporation ('AMD'), and BoldCo, Inc., a California corporation (the 'Company').\n\n                                   RECITALS\n\n          A.  AMD engages through its Communication Products Division ('CPD') in\nthe design, development, manufacture and sale of telecommunication products for\npublic communications infrastructure systems, customer premise equipment and\ncordless telephony applications.\n\n          B.  AMD believes that it is in the best interests of the Business that\nthe business, assets and operations of CPD be reorganized so that it is a\n'stand-alone' business.\n\n          C.  In furtherance of such reorganization, prior to the date hereof,\nthe transfers set forth in Section 2.1 were consummated.\n\n          D.  The purpose of this Agreement is to finalize the reorganization of\nthe operations of CPD as hereinafter provided.\n\n          NOW, THEREFORE, in consideration of the premises and the mutual\ncovenants, conditions, representations, warranties and agreements hereinafter\nset forth, the parties hereby agree as follows:\n\n                                  ARTICLE I.\n                                  DEFINITIONS\n\n     1.1  Previously Defined Terms.  Each term defined in the first paragraph\n          ------------------------                                           \nhereof and the Recitals shall have the meaning set forth above whenever used\nherein.\n\n     1.2  General Definitions.  Whenever used herein, the following terms shall\n          -------------------                                                  \nhave the meaning set forth below:\n\n          'Action' shall mean any action, order, writ, injunction, judgment or\ndecree, suit, litigation, proceeding, labor dispute, arbitral action or\ninvestigation.\n\n          'Affiliate' means a Person that directly or indirectly through one or\nmore intermediaries controls, is controlled by or is under common control with\nthe Person specified.\n\n          'AMD's Books and Records' means the books and records (including\ncomputerized records, ledgers, files and software) owned by AMD and its\nAffiliates that relate to the Retained Business and are necessary to operate the\nRetained Business, or are required by law to be retained by AMD, including,\nwithout limitation, all files relating to any Action being retained by AMD as a\nRetained Liability, original corporate minute books, stock ledgers and corporate\nseals, and all licenses, leases, agreements and filings relating to AMD or the\nRetained Business.\n\n                                       1\n\n \n          'Ancillary Agreement' or 'Ancillary Agreements' means the agreements\nset forth in Section 3.3(a), individually or collectively, respectively.\n\n          'Applicable Law' or 'Applicable Laws' shall mean, with respect to any\nPerson, any domestic, foreign, federal, state or local statute, law, ordinance,\nrule, regulation, order, writ, injunction, directive, judgment, decree, permit,\nauthorization or opinion or any other requirement of law (including common law),\nall as in effect as of the Effective Date, of any Governmental Authority\napplicable to such Person or any of its Affiliates or any of their respective\nproperties, assets, officers, directors, employees, consultants or agents (in\nconnection with such officer's, director's, employee's, consultant's or agent's\nactivities on behalf of such Person or any of its Affiliates).\n\n          'Assumed Liabilities' means all of the Liabilities primarily related\nto the Business; provided, that Assumed Liabilities shall not include the\nRetained Liabilities.\n\n          'Assumption Agreement' has the meaning ascribed to such term in\nSection 2.1(a).\n\n          'Available Employees' shall mean the employees of AMD set forth on\nSchedule 1.2(g).\n--------------- \n\n          'Business' means the business and operations of CPD, as conducted by\nAMD immediately prior to the Effective Date.\n\n          'Closing' has the meaning ascribed to such term in Section 3.1.\n\n          'Company Shares' means the 138,888 shares of the Series A Preferred\nStock issued by the Company to AMD at Closing.\n\n          'Contract' shall mean any written agreement, understanding,\narrangement, contract, lease, note, loan, evidence of indebtedness, purchase\norder, letter of credit, indenture, security or pledge agreement, franchise\nagreement, undertaking, practice, covenant not to compete, employment agreement,\nlicense, instrument, obligation or commitment to which AMD is a party that\nrelates primarily to, and is necessary for the conduct of, the Business,\ntogether with those contracts set forth on Schedule 1.2(b).\n                                           --------------- \n\n          'CPD Accounts Receivable' means all net accounts receivable related to\nthe Business.\n\n          'CPD Assets' means the following assets, properties and rights which\nare used in and necessary for the conduct of the Business (excluding Retained\nAssets, and as modified in the ordinary course of business between the date\nhereof and the Effective Date):\n\n               (A) the CPD Intellectual Property, including, but not limited to:\n\n                    (i)  the registered trademarks or service marks set forth on\n               Schedule 1.2(a)(i);\n               ------------------ \n\n                                       2\n\n \n                    (ii)  the unregistered trademarks, service marks, trade\n               dress and\/or trade names set forth on Schedule 1.2(a)(ii);\n                                                     ------------------- \n\n                    (iii) the registered copyrights set forth on Schedule\n                                                                  --------\n               1.2(a)(iii);\n               ----------- \n\n                    (iv)  the registered mask works set forth on Schedule\n                                                                 --------\n               1.2(a)(iv); and\n               ----------     \n\n                    (v)   the registered domain names set forth on Schedule\n                                                                   --------\n               1.2(a)(v)\n               ---------\n\n               (B) Permits, including all applications therefor, to the extent\nsuch Permits are transferable;\n\n               (C) the CPD Inventory;\n\n               (D) the Contracts, including those set forth on Schedule 1.2(b),\n                                                               ---------------\nand right under the shared contracts set forth on Schedule 1.2(c);\n                                                  --------------- \n\n               (E) the personal property set forth on Schedule 1.2(d);\n                                                      --------------- \n\n               (F) the personal property leases set forth on Schedule 1.2(e);\n                                                             --------------- \n\n               (G) the patents set forth on Schedule 1.2(f) (the 'CPD Patents');\n                                                             ----------------- \n\n               (H) the CPD Books and Records;\n\n               (I) the CPD Accounts Receivable; and\n\n               (J) all litigation and claim files (whether on paper, computer\n     disk, tape or other storage media) related to claims, actions, suits,\n     proceedings, or investigations pending or threatened against the Business\n     or the Company or any properties or rights of the Business or the Company,\n     in each case which constitutes an Assumed Liability.\n\n          'CPD Books and Records' means the books and records (including\ncomputerized records, files and software) owned by AMD that relate primarily to\nthe Business and are necessary to operate the Business, including, without\nlimitation, all licenses, leases, agreements and filings relating to the\nBusiness (but not including AMD's Books and Records).\n\n          'CPD Intellectual Property' means the Intellectual Property owned by\nAMD that relates solely to the Business and is necessary to operate the\nBusiness.\n\n          'CPD Inventory' means the inventory owned by AMD and used exclusively\nin connection with the Business, consisting of finished goods and work in\nprocess (i) which has progressed beyond the point in the manufacturing process\nwhere the inventory would be saleable to the Company under the terms of the\nWafer Fabrication Agreement in the form attached hereto as Exhibit F; (ii)\n                                                           ---------      \nconsisting of unsorted wafers exfactory under the Logic Foundry Agreement\nbetween AMD and UMC, dated as of March 17, 1998 and (iii) consisting of sorted\nwafers exfactory under either the Wafer Supply Agreement between AMD and Sony\nMicroelectronics, \n\n                                       3\n\n \ndated as of April 3, 1995 or the Wafer Supply Agreement to be entered into by\nthe Company and Sony Microelectronics.\n\n          'Effective Date' has the meaning ascribed to such term in Section 3.1.\n\n          'Encumbrance' means, with respect to any CPD Asset, any mortgage,\npledge, encumbrance, title defect, security interest, hypothecation, adverse\nclaim, easement, right of way, including without limitation any lease, chattel\nmortgage, conditional sales contract, collateral security arrangement and other\ntitle or interest retention arrangement.\n\n          'Environmental Conditions' shall mean the state of the environment,\nincluding natural resources (e.g., flora and fauna), soil, surface water, ground\nwater, any present or potential drinking water supply, subsurface strata, or\nambient air, relating to or arising out of the use, handling, storage,\ntreatment, recycling, generation, release, spilling, leaking, pumping, pouring,\nemptying, discharging, injecting, escaping, leaching, disposal, dumping, or\nthreatened release of Hazardous Substances by AMD, or by its agents,\nrepresentatives, employees, or independent contractors when acting in such\ncapacity on behalf of AMD.\n\n          'Environmental Laws' shall mean all Applicable Laws that relate to or\nimpose liability or standards of conduct concerning the protection,\ninvestigation or restoration of the environment or natural resources including,\nwithout limitation:  (i) all requirements pertaining to reporting, licensing,\npermitting, controlling, investigating or remediating emissions, discharges,\nreleases or threatened releases of hazardous substances, chemical substances,\npollutants, contaminants or toxic substances, materials or wastes, whether\nsolid, liquid or gaseous in nature, into the air, surface water, groundwater or\nland; (ii) all requirements relating to the manufacture, processing, generation,\ndistribution, use, treatment, storage, disposal, transports or handling of\nhazardous substances, chemical substances, pollutants, contaminants or toxic\nsubstances, materials or wastes, whether solid, liquid or gaseous in nature; and\n(iii) the Resource Conservation and Recovery Act, the Comprehensive\nEnvironmental Response, Compensation and Liability Act, the Clean Air Act, the\nWater Pollution Control Act, the Safe Drinking Water Act (each as amended as of\nthe Effective Date) and all requirements promulgated pursuant to any of these or\nanalogous state or local statutes.\n\n          'Environmental Liabilities' means any and all Liabilities arising in\nconnection with or in any way relating to AMD (or any predecessor of AMD or any\nprior owner of all or part of its business and assets), any property now or\npreviously owned, leased or operated by such AMD, the Business (as currently or\npreviously conducted), or the CPD Assets which (i) arise under or relate to any\nEnvironmental Laws or Environmental Conditions and (ii) relate to actions\noccurring or conditions existing on or prior to the Effective Date.\n\n          'Governmental Authority' means any foreign, domestic, federal, state\nor local governmental authority, quasi-governmental authority, instrumentality,\ncourt, government or self-regulatory organization, commission, tribunal or\norganization or any regulatory, administrative or other agency, or any political\nor other subdivision, department or branch of any of the foregoing.\n\n                                       4\n\n \n          'Hazardous Substances' shall mean all pollutants, contaminants,\nchemicals, wastes, and any other carcinogenic, ignitable, corrosive, reactive,\ntoxic or otherwise hazardous substances or materials (whether solids, liquids or\ngases) subject to regulation, control or remediation under Environmental Laws,\nincluding without limitation all flammable, explosive and radioactive materials,\nPCBs, pesticides, herbicides, asbestos, sludge, slag, acids, metals, solvents,\nwaste waters, petroleum products or by-products and urea-formaldehyde\ninsulation.\n\n          'Inactive Employee' means any employee of AMD set forth on Schedule\n                                                                     --------\n1.2(g) who is not actively employed as of the Closing as a result of being on\n------                                                                       \nlong-term disability.\n\n          'Intellectual Property' means all trademarks, service marks, trade\nnames, trade dress, domain names, logos, business and product names, slogans,\nand registrations and applications for registration or renewal thereof;\ncopyrights and registrations or renewals thereof; mask works and registrations\nthereof; inventions, processes, designs, formulae, trade secrets, know-how,\nconfidential and technical information; all other intellectual property and\nproprietary rights; copies and tangible embodiments thereof (in whatever form or\nmedium, including electronic media); and licenses of any of the foregoing;\nprovided, however, that Intellectual Property shall not include the CPD Patents.\n\n          'International Employee' means any employee of AMD set forth on\nSchedule 1.2(g) who is primarily employed outside the United States.\n---------------                                                     \n\n          'Liabilities' shall mean any and all debts, liabilities and\nobligations, absolute or contingent, matured or unmatured, liquidated or\nunliquidated, accrued or unaccrued, known or unknown, whenever arising,\nincluding all costs and expenses relating thereto, and including, without\nlimitation, those debts, liabilities and obligations arising under any law,\nrule, regulation, Action, threatened Action, order or consent decree of any\ngovernmental entity or any award of any arbitrator of any kind, and those\narising under any contract, commitment or undertaking.\n\n          'Permits' means all material licenses, permits, orders, consents,\napprovals, registrations, authorizations, qualifications and filings with and\nunder all federal, state, local or foreign laws and governmental or regulatory\nbodies and all industry or other nongovernmental self-regulatory organizations,\nin each case, primarily related to, or necessary to operate, the Business as\ncurrently conducted by AMD.\n\n          'Permitted Encumbrances' means (i) Encumbrances for current taxes not\nyet due and payable, (ii) purchase money security interests, (iii) liens imposed\nby law, such as materialmen's, mechanics', workers', repairmen's, employees',\ncarriers', vendors', warehousemen's and other like liens arising in the ordinary\ncourse of business in respect of obligations that are not yet due and payable or\nwill be paid by AMD in the ordinary course following the Effective Date or (iv)\nEncumbrances that are insignificant, individually and in the aggregate, to the\noperation of the Business.\n\n          'Person' means an individual, a partnership, a corporation, a limited\nliability company, a trust, an unincorporated organization, a government or any\ndepartment or agency thereof or any other entity.\n\n                                       5\n\n \n          'Reasonable Efforts' means the obligated party is required to make a\ndiligent, reasonable and good faith effort to accomplish the applicable\nobjective.  Such obligation, however, does not require any expenditure of funds\nor the incurrence of any liability, in either case which is unreasonable in\nlight of the related objective, nor does it require that the obligated party act\nin a manner which would otherwise be contrary to prudent business judgment in\nlight of the objective attempted to be achieved.  The fact that the objective is\nnot actually accomplished is not dispositive evidence that the obligated party\ndid not in fact utilize its Reasonable Efforts in attempting to accomplish the\nobjective.\n\n          'Retained Assets' means the assets of AMD and its Affiliates other\nthan the CPD Assets, including without limitation all cash (other than cash used\nto meet the minimum capital requirements of the foreign subsidiaries referred to\nin Sections 2.3 through 2.8, which amounts shall be paid to AMD by the Company\nfollowing the Closing).\n\n          'Retained Business' shall mean the businesses conducted by AMD and its\nAffiliates other than the Business.\n\n          'Retained Liabilities' means any of the following liabilities or\nobligations of AMD or its Affiliates, whether or not related to the Business and\nwhether direct or indirect, known or unknown, or absolute or contingent:\n\n          (a) any liabilities or obligations incurred by AMD or its Affiliates\nin connection with the conduct of  the Retained Business;\n\n          (b) any workers' compensation claims related to the operation of the\nBusiness prior to the Closing and all obligations and liabilities under any\nemployee plan or benefit arrangement of AMD or its Affiliates in respect of each\nemployee or former employee (including any beneficiary thereof) who is not a\nTransferred Employee and all liabilities and obligations in respect of benefits\naccrued as of the Effective Date by Transferred Employees under any employee\nplan or benefit arrangement of AMD or its Affiliates;\n\n          (c) any Liability resulting from any default or nonperformance by AMD\nprior to the Effective Date under any Contract;\n\n          (d) any Liability in any pending or threatened litigation or\ngovernmental proceeding, in either case, to which AMD or any of its Affiliates\nis a party prior to the Closing;\n\n          (e) any Liability pertaining solely to a Retained Asset;\n\n          (f) Environmental Liabilities;\n\n          (g) obligations, as of the Effective Date, which are (1) obligations\nfor borrowed money; (2) obligations evidenced by notes, bonds, debentures or\nsimilar instruments; or (3) obligations in the nature of guarantees of the\nobligations described in clauses (1) or (2) of any Person, keep well agreements\nor similar obligations, except to the extent expressly assumed by the Company;\n\n                                       6\n\n \n          (i) any liabilities or obligations related to indemnification or other\nprovision under any contract or other agreement pursuant to which any sale or\ndisposition was made of any business or product line formerly owned or operated\nby AMD or any predecessor but not presently so owned or operated;\n\n          (j) any Transferred Employee Liabilities;\n\n          (k) any liabilities or obligations of AMD or any of its Affiliates for\nindemnification of any present or former director or officer of (or other person\nserving in a fiduciary capacity at the request of) AMD or its Affiliates based\non actual or alleged breach of fiduciary duty of such person prior to Closing;\n\n          (l) any liabilities or obligations incurred on or prior to the\nEffective Date related to intercompany trade payables or intercompany debt;\n\n          (m) any (x) Tax of the Company or AMD described in clause (i) of the\ndefinition of Tax related to all taxable periods ending on or prior to the\nEffective Date or the pre-Closing portion of all complete taxable periods that\ninclude, but do not end on, the Closing and (y) Tax described in clause (ii) or\n(iii) of the definition of Tax, and any liability as transferee.  For purposes\nof this Agreement, 'Tax' means (i) any net income, alternative or add-on minimum\n                    ---                                                         \ntax, gross income, gross receipts, sales, use, ad valorem, value added,\ntransfer, franchise, profits, license, registration, recording, documentary,\nconveyancing, gains, withholding on amounts paid to or by AMD or the Company,\npayroll, employment, excise, severance, stamp, occupation, premium, property,\nenvironmental or windfall profit tax, custom duty or other tax, governmental fee\nor other like assessment or charge of any kind whatsoever, together with any\ninterest, penalty, addition to tax or additional amount imposed by any\ngovernmental authority responsible for the imposition of any such tax (domestic\nor foreign), (ii) in the case of the Company, liability for the payment of any\namount of the type described in clause (i) as a result of being or having been\nbefore the Effective Date a member of an affiliated, consolidated, combined or\nunitary group and (iii) liability for the payment of any amounts of the type\ndescribed in (i) as a result of being party to any agreement or any express or\nimplied obligation to indemnify any other Person; and\n\n          (n) any liabilities incurred for sales commissions to be paid to sales\nrepresentatives selling products of the Business with respect to periods prior\nto the Effective Date for which the corresponding accounts receivable upon which\nsuch sales commissions liabilities have been incurred have been collected by\nAMD.\n\n          'Series A Preferred Stock' means the Series A Preferred Stock of the\nCompany.\n\n          'Transferred Employee Liabilities' means with respect to Transferred\nEmployees (i) liabilities incurred for payroll and payroll taxes with respect to\nperiods prior to the Effective Date and (ii) liabilities incurred for retention\nand incentive bonuses under programs implemented by AMD with respect to periods\nprior to the Effective Date.\n\n          'Transferred Employees' shall mean the employees of AMD set forth on\nSchedule 1.2(g) but excluding Available Employees, Inactive Employees,\n---------------                                                       \nInternational Employees and Visa Employees.\n\n                                       7\n\n \n          'Visa Employee' means any employee of AMD set forth on Schedule 1.2(g)\n                                                                 ---------------\nwho is so designated on such Schedule.\n\n     1.3  Interpretation.  Unless the context of this Agreement otherwise\n          --------------                                                 \nrequires, (a) words of any gender shall be deemed to include each other gender,\n(b) words using the singular or plural number shall also include the plural or\nsingular number, respectively, and (c) reference to 'hereof', 'herein', 'hereby'\nand similar terms shall refer to this entire Agreement.\n\n                                  ARTICLE II.\n                                   TRANSFERS\n\n     2.1  Prior Transfers.  Prior to the date of this Agreement or at such other\n          ---------------                                                       \ntime as set forth in this Section 2.1, as part of the reorganization of the\noperations of CPD as a stand-alone business, the following transactions have\nbeen or will be consummated:\n\n          (a) In connection with the transactions contemplated herein, AMD\nassumed and agreed to perform, pay and discharge all Liabilities and obligations\nof the Company arising on or prior to May 21, 2000 and that relate to activities\nthe Company engaged in on or prior to May 21, 2000.  AMD and the Company\nexecuted and delivered the Assumption Agreement (the 'Assumption Agreement'), a\ntrue and correct copy of which is attached hereto as Exhibit A and incorporated\n                                                     ---------                 \nby reference herein.\n\n          (b) AMD contributed to the Company, free and clear of any Encumbrances\n(other than Permitted Encumbrances) such of the CPD Assets owned by or held by\nAMD and set forth on Schedule 2.1(b) hereto.  In connection with the\n                     ---------------                                \ntransactions referred to in this Section 2.1(b), AMD and the Company executed\nand delivered the transfer documents (the 'Transfer Documents'), true and\ncorrect copies of which are attached hereto as Exhibit B and incorporated by\n                                               ---------                    \nreference herein.\n\n          (c) The Company and AMD shall execute and deliver such other transfer\ndocuments as are necessary and appropriate to consummate the transactions\ncontemplated in this Section 2.1.\n\n     2.2  Closing.\n          ------- \n\n          (a) At the Closing on the Effective Date (i) AMD shall transfer,\nassign, convey and license to the Company, free and clear of any Encumbrances\n(other than Permitted Encumbrances), the CPD Assets (to the extent not\npreviously transferred pursuant to the Transfer Documents and excluding CPD\nAssets being transferred pursuant to Sections 2.3 through 2.8); (ii) the Company\nshall assume, agree to perform, and in due course pay and discharge, the Assumed\nLiabilities (excluding Assumed Liabilities being transferred pursuant to\nSections 2.3 through 2.8); and (iii) AMD shall use its Reasonable Efforts to\ncause the Transferred Employees, Inactive Employees, International Employees and\nVisa Employees to become employees of the Company (or of an appropriate\nsubsidiary of the Company).  The Inactive Employees, International Employees and\nVisa Employees will not become employees of the Company (or of an appropriate\nsubsidiary of the Company) on the Effective Date but may become employees of the\nCompany (or of an appropriate subsidiary of the Company) at a future date.  Such\ntransactions shall be effected pursuant to transfer documents in forms\nreasonably agreed to by \n\n                                       8\n\n \nthe parties. The Company shall not assume or pay and AMD hereby agrees that it\nshall continue to be responsible for the Retained Liabilities.\n\n          (b) At the Closing on the Effective Date, in consideration of the\ntransfers of the CPD Assets made pursuant to this Article II, the Company shall\nissue to AMD:  (i) the Company Shares; and (ii) a warrant to purchase 11,000,000\nshares of the Company's common stock in the form attached hereto as Exhibit C\n                                                                    ---------\n(the 'Common Warrant').\n\n     2.3  Germany.\n          ------- \n\n          (a) As soon as practicable after the execution of this Agreement, the\nCompany shall use its Reasonable Efforts to incorporate or acquire a shelf\ncompany in the form of a GmbH wholly owned by the Company (the 'Germany\nSubsidiary').\n\n          (b) At the Closing or as soon as reasonably practicable thereafter,\n(i) AMD shall cause Advanced Micro Devices GmbH to transfer, assign, convey and\ndeliver to the Germany Subsidiary, free and clear of any Encumbrances (other\nthan Permitted Encumbrances), such of the CPD Assets and Assumed Liabilities\nthat relate to the operations of the Business in Germany owned or held by\nAdvanced Micro Devices GmbH.  Such transactions shall be effected pursuant to\ntransfer documents reasonably satisfactory to AMD and the Company.\n\n     2.4  France.\n          ------ \n\n          (a) As soon as practicable after the execution of this Agreement, the\nCompany shall use its Reasonable Efforts to incorporate or acquire a shelf\ncompany in the form of a Sarl, Eurl, or SAS wholly owned by the Company (the\n'France Subsidiary').\n\n          (b) At the Closing or as soon as practicable thereafter, (i) AMD shall\ncause Advanced Micro Devices S.A. to transfer, assign, convey and deliver to the\nFrance Subsidiary, free and clear of any Encumbrances (other than Permitted\nEncumbrances), such of the CPD Assets and Assumed Liabilities that relate to the\noperations of the Business in France owned or held by Advanced Micro Devices\nS.A..  Such transactions shall be effected pursuant to transfer documents\nreasonably satisfactory to AMD and the Company.\n\n     2.5  Italy.\n          ----- \n\n          (a) As soon as practicable after the execution of this Agreement, the\nCompany shall use its Reasonable Efforts to incorporate or acquire a shelf\ncompany in the form of an Srl owned 99.9% by the Company and .1% by CPD\nInternational (as defined below) (the 'Italy Subsidiary').\n\n          (b) At the Closing or as soon as reasonably practicable thereafter,\n(i) AMD shall cause Advanced Micro Devices S.p.A. to transfer, assign, convey\nand deliver to the Italy Subsidiary, free and clear of any Encumbrances (other\nthan Permitted Encumbrances), such of the CPD Assets and Assumed Liabilities\nthat relate to the operations of the Business in Italy owned or held by Advanced\nMicro Devices S.p.A.  Such transaction shall be effected pursuant to transfer\ndocuments reasonably satisfactory to AMD and the Company.\n\n                                       9\n\n \n     2.6  United Kingdom.\n          -------------- \n\n          (a) As soon as practicable after the execution of this Agreement, the\nCompany shall use its Reasonable Efforts to incorporate or acquire a shelf\ncompany in the form of a limited company, wholly owned by the Company (the 'UK\nSubsidiary').\n\n          (b) At the Closing or as soon as reasonably practicable thereafter,\n(i) AMD shall cause Advanced Micro Devices (U.K.) Limited to transfer, assign,\nconvey and deliver to the UK Subsidiary, free and clear of any Encumbrances\n(other than Permitted Encumbrances), such of the CPD Assets and Assumed\nLiabilities that relate to the operations of the Business in England owned or\nheld by Advanced Micro Devices (U.K.) Limited.  Such transaction shall be\neffected pursuant to transfer documents reasonably satisfactory to AMD and the\nCompany.\n\n     2.7  Japan.\n          ----- \n\n          (a) As soon as practicable after the execution of this Agreement, the\nCompany shall use its Reasonable Efforts to incorporate or acquire a shelf\ncompany in the form of a KK, wholly owned by the Company (the 'Japan\nSubsidiary').\n\n          (b) At the Closing or as soon as reasonably practicable thereafter,\n(i) AMD shall cause AMD Japan Ltd. to transfer, assign, convey and deliver to\nthe Japan Subsidiary, free and clear of any Encumbrances (other than Permitted\nEncumbrances), such of the CPD Assets and Assumed Liabilities that relate to the\noperations of the Business in Japan owned or held by AMD Japan Ltd.  Such\ntransaction shall be effected pursuant to transfer documents reasonably\nsatisfactory to AMD and the Company.\n\n     2.8  Barbados.\n          -------- \n\n          (a) As soon as practicable after the execution of this Agreement, the\nCompany shall use its Reasonable Efforts to incorporate or acquire a shelf\ncompany in the form of a corporation, wholly owned by the Company (the 'Barbados\nSubsidiary').\n\n          (b) AMD shall (i) timely and properly file an election pursuant to\nsection 927(f) of the Code to treat the Barbados Subsidiary as a foreign sales\ncorporation within the meaning of section 922 of the Code, and (ii) take any\nother actions necessary in order to ensure that the Barbados Subsidiary\nqualifies as a foreign sales corporation within the meaning of section 922 of\nthe Code for its initial taxable year.\n\n     2.9  United States.\n          ------------- \n\n          (a) Promptly after the execution of this agreement, the Company shall\nuse its Reasonable Efforts to cause to be incorporated a Delaware corporation\nwholly owned by the Company ('CPD International').\n\n          (b) The Company shall use its Reasonable Efforts to cause CPD\nInternational to establish branches in Hong Kong, China, Taiwan, Singapore,\nKorea and Sweden prior to the Closing, and shall use its Reasonable Efforts to\ntake all actions to ensure that such branches are \n\n                                       10\n\n \nproperly organized including but not limited to ensuring that proper\nregistration, licenses, permits and minimal capital requirements are met.\n\n     2.10 Foreign Subsidiaries.  AMD will use Reasonable Efforts to cause the\n          --------------------                                               \nCompany to establish the subsidiaries and branches and to complete the transfers\nenumerated in Sections 2.3 through 2.8 on or before the Effective Date.  If,\nhowever, the Company is unable to establish one or more of the subsidiaries or\nbranches or complete one or more of the transfers by the Effective Date, AMD\nwill enter into one or more services agreements with the Company, in forms to be\nreasonably agreed upon by the parties, such that the Company can continue to\noperate in each of the locations specified in Sections 2.3 through 2.8 in\nsubstantially the manner in which it was operating before the Effective Date\nuntil such time that a transfer can reasonably be completed.\n\n                                 ARTICLE III.\n                        CLOSING AND CLOSING DELIVERIES\n\n     3.1  Effective Date.  The term 'Closing' as used herein shall refer to the\n          --------------                                                       \nactual transfers, assignments, conveyances and deliveries contemplated by\nArticle II as taking place at the Closing.  The Closing shall take place as soon\nas reasonably practical following the date upon which the conditions precedent\nset forth in Section 5.1 are satisfied or such other effective time as the\nparties may agree (the 'Effective Date').\n\n     3.2  Deliveries at Closing.\n          --------------------- \n\n          (a) With respect to the transactions contemplated by Article II:\n\n              (i) AMD shall deliver to the Company the following:\n\n                   (A) the transfer documents and all such deeds, bills of sale,\nlease assignments and other contract assignments and other documents and\ninstruments of sale, transfer, assignment, conveyance and deliverance as may be\nnecessary and appropriate to implement the intended transfers contemplated by\nArticle II; and\n\n                   (B) such other documents and instruments as may be reasonably\nnecessary to implement the transfers contemplated hereby.\n\n              (ii) The Company shall deliver to AMD the following:\n\n                   (A) an Assumption Agreement in the form agreed to by the\nparties, pursuant to which the Company covenants and agrees to assume the\nAssumed Liabilities;\n\n                   (B) transfer documents and such other documents and\ninstruments as may be reasonably necessary to implement the transfers and\nassumption of the Assumed Liabilities;\n\n                   (C)  the Company Shares; and\n\n                   (D)  the Common Warrant.\n\n                                       11\n\n \n              (iii)  The consents and approvals of the Governmental Authorities\nand other Persons listed on Schedule 3.2(a) hereto shall be obtained, subject to\n                            ---------------                                     \nany changes in applicable law after the date hereof.\n\n     3.3  Ancillary Agreements.\n          -------------------- \n\n          (a) At the Closing, AMD and the Company shall enter into, execute and\ndeliver the following additional documents:\n\n              (i)   an Administrative Services Agreement in the form attached\nhereto as Exhibit D;\n          --------- \n\n              (ii)  a Wafer Fabrication Agreement in the form attached hereto as\nExhibit E;\n--------- \n\n              (iii) an Assembly, Test, Mark and Pack Agreement in the form\nattached hereto as Exhibit F;\n                   --------- \n\n              (iv)  a Patent Assignment Agreement in the form attached hereto as\nExhibit G; and\n---------     \n\n              (v)   a Intellectual Property Cross-License Agreement in the form\nattached hereto as Exhibit H.\n                   --------- \n\n     3.4  Cooperation.  Each of AMD and the Company shall, at the request of the\n          -----------                                                           \nother party, prior to, on and after the Closing, cooperate with one another by\nfurnishing any additional information, executing and delivering any additional\ndocuments and\/or instruments and doing any and all such other things as may be\nreasonably required to consummate or otherwise implement the transactions\ncontemplated by this Agreement.\n\n                                  ARTICLE IV.\n                PRE-CLOSING FILINGS, CONSENTS AND OTHER MATTERS\n\n     4.1  Governmental Filings.  The parties hereto covenant and agree with each\n          --------------------                                                  \nother to (a) promptly file, or cause to be promptly filed, with any Governmental\nAuthority all such notices, applications (including applications for permits,\nlicenses and other similar instruments), forms or other documents as may be\nnecessary to consummate the transactions contemplated hereby and to permit the\nCompany to operate that portion of the Business transferred to it, including,\nwithout limitation, the consents, approvals of the Governmental Authorities and\napplications for permits and licenses set forth on Schedule 3.2(a) hereto and\n                                                   ---------------           \n(b) thereafter diligently pursue all such consents, approvals and applications.\n\n     4.2  Consent of Third Parties.  AMD shall use its Reasonable Efforts to\n          ------------------------                                          \nobtain prior to the Closing any consents, approvals, authorizations and\nagreements of and to give all notices and make all other filings with, any third\nparties, including Governmental Authorities, necessary to authorize, permit or\napprove the consummation of the transactions contemplated hereby or to continue\nin effect and to assure that the Company shall be entitled to all of the\nmaterial benefits of the Contracts set forth on Schedule 4.2 hereto (the\n                                                ------------            \n'Material Contracts'), including without \n\n                                       12\n\n \nlimitation: (i) as required, the consent of third parties to the assignment to,\nand assumption by, the Company of the Material Contracts; and (ii) the consent\nof any Governmental Authority to the assignment to the Company of the Permits.\nThe Company and AMD shall cooperate with each other with respect thereto.\n\n     4.3  Shared Contracts.  (a) At the request of the Company, AMD shall, and\n          ----------------                                                    \nshall cause its Affiliates to, use its Reasonable Efforts to make available to\nthe Company  (or its designated Affiliates) the benefits and rights under the\nShared Contracts which are as equivalent as practicable to the benefits and\nrights enjoyed by AMD under each such contract, to the extent such benefits\nrelate to the Business; provided, however, that the Company shall assume and\ndischarge (or reimburse AMD for) the obligations and liabilities under the\nrelevant Shared Contracts associated with the benefits and rights so made\navailable to the Company.\n\n          (b)  At the request of AMD, the Company shall, and shall cause its\nAffiliates to, use its Reasonable Efforts to make available to AMD (or its\ndesignated Affiliates) the benefits and rights under the Shared Contracts which\nare as equivalent as practicable to the benefits and rights enjoyed by the\nCompany under each such contract, to the extent such benefits relate to the\nRetained Business, provided, however, that AMD shall assume and discharge (or\nreimburse the Company for) the obligations and liabilities under the relevant\nShared Contracts associated with the benefits and rights so made available to\nAMD.\n\n          (c)  'Shared Contract' shall mean, for the purposes of Section 4.3(a),\nall arrangements, contracts, leases and other agreements set forth on Schedule\n                                                                      --------\n1.2(c).\n------ \n\n     4.4  Entity Classification.  If an election pursuant to Treasury Regulation\n          ---------------------                                                 \nsection 301.7701-3 is required for an entity listed on Schedule 4.4 to be\n                                                       ------------      \nclassified for U.S. federal income tax purposes in the manner set forth on\nSchedule 4.4, AMD shall cause such entity to make such an election as promptly\n------------                                                                  \nas possible and where possible in such a manner that the election is effective\non the date of the formation of such entity.  For such time as any such entity\nis an Affiliate of AMD, AMD shall not permit any entity to make an election\npursuant to Treasury Regulation section 301.7701-3 that would cause such entity\nto be classified other than in the manner set forth in Schedule 4.4.\n                                                       ------------ \n\n     4.5  Available Employees.  The Company may solicit to hire or hire any of\n          -------------------                                                 \nthe Available Employees.  To the extent the Company hires any Available\nEmployees, such Available Employees shall be deemed Transferred Employees\nhereunder.\n\n                                  ARTICLE V.\n                             CONDITIONS PRECEDENT\n\n     5.1  Conditions to Closing.\n          --------------------- \n\n          The obligations of the parties hereto to close the transactions\nhereunder are subject to the following conditions precedent:\n\n          (a) No investigation, action, suit or proceeding by any Governmental\nAuthority, and no action, suit proceeding by any other Person, shall be pending\non the Effective Date which challenges, or might reasonably result in a\nchallenge to, this Agreement or any of the \n\n                                       13\n\n \ntransactions contemplated hereby, or which claims, or might reasonably give rise\nto a claim for, damages in a material amount as a result of the consummation of\nthis Agreement.\n\n          (b) All documents and instruments to be executed and delivered\npursuant to this Agreement, including, without limitation, the documents and\ninstruments to be delivered pursuant to Article III, shall be reasonably\nsatisfactory to the parties hereto to whom such documents are to be delivered.\n\n          (c) AMD and the Company shall have agreed to the form of each of the\nAncillary Agreements.\n\n          (d) All required consents and approvals of any Governmental Authority\nand the consents and approvals of any other Persons and all permits, licenses\nand similar instruments set forth on Schedule 3.2(a) hereto shall have been\n                                     ---------------                       \nobtained and be in full force and effect as of the Effective Date and such\nconsents, approvals, permits, licenses and other instruments shall not impose\nany restrictions, limitations or conditions which would have a material adverse\neffect on the financial condition or results of operations of the Business.\n\n                                  ARTICLE VI.\n                                  TERMINATION\n\n     6.1  Termination.  This Agreement shall be terminated upon the occurrence\n          -----------                                                         \nof either of the following:\n\n          (a) if the Closing shall not have occurred on or before September 30,\n2000, unless AMD elects to extend such date; or\n\n          (b) upon mutual agreement of AMD and the Company.\n\n \n                                 ARTICLE VII.\n                                 MISCELLANEOUS\n\n\n     7.1  Further Actions.\n          ------------------\n\n          (a) The parties hereto agree to use Reasonable Efforts to take all\nactions and to do all things necessary, proper or advisable to consummate the\ntransactions contemplated hereby at or prior to the Closing.\n\n          (b) AMD shall, and shall cause its Affiliates to, use Reasonable\nEfforts to enter into such agreements and other arrangements (including\nsublicenses and subleases) with the appropriate parties as are necessary to\nensure that the Company and its subsidiaries after the Closing own or hold the\nassets, properties and rights (together with the benefits provided under the\nAncillary Agreements) of CPD sufficient to operate the Business as operated on\nthe date hereof.\n\n                                       14\n\n \n          (c) The Company shall pay or cause to be paid the fees and expenses\n(including the contribution of minimum capital requirements) incurred in\nconnection with the establishment of the entities referred to in Sections 2.3\nthrough 2.8 or, following the Closing, shall reimburse AMD for any such amounts,\nwhich amounts shall not constitute Retained Liabilities.\n\n     7.2  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:\n\n\n           If to AMD:                         Advanced Micro Devices, Inc.\n                                              One AMD Place\n                                              P.O. Box 3453\n                                              Sunnyvale, California 94088-3453\n                                              Facsimile:  (408) 774-7399\n                                              Attention:  General Counsel\n                                      \n           With a copy to:                    Latham &amp; Watkins\n                                              135 Commonwealth Drive\n                                              Menlo Park, California 94025\n                                              Facsimile:  (650) 463-2600\n                                              Attention:  Christopher L. Kaufman\n                                      \n           If to the Company                  BraveTwo Acquisition, L.L.C.\n           following the Closing:             c\/o Francisco Partners, L.P.,\n                                              One Maritime Plaza, Suite 2500\n                                              Francisco, California 94111\n                                              Attention:  General Counsel\n                                              Facsimile:  (415) 986-1320\n                                      \n           With a copy to:                    Davis Polk &amp; Wardwell\n                                              1600 El Camino Real\n                                              Menlo Park, California 94025\n                                              Attention:  William M. Kelly\n                                              Facsimile:  (650) 752-2111\n                                       \n\nor to such other place and with such other copies as either party may designate\nas to itself by written notice to the others.\n\n     7.3  Entire Agreement.  The agreement of the parties, which is comprised of\n          ----------------                                                      \nthis Agreement, the Exhibits and the Schedules hereto and the documents referred\nto herein, sets forth the entire agreement and understanding between the parties\nand supersedes any prior agreement or understanding, written or oral, relating\nto the subject matter of this Agreement.\n\n                                       15\n\n \n     7.4  Assignment; Binding Effect; Severability.  This Agreement may not be\n          ----------------------------------------                            \nassigned by any party hereto without the written consent of the other party\nhereto, except that the Company may assign this Agreement and its rights and\nobligations hereunder to or for the account of lenders providing financing to\nthe Company solely and specifically for the purpose of securing such financing.\nThis Agreement shall be binding upon and inure to the benefit of and be\nenforceable by the successors, legal representatives and permitted assigns of\neach party hereto.  The provisions of this Agreement are severable, and in the\nevent that any one or more provisions are deemed illegal or unenforceable, the\nremaining provisions shall remain in full force and effect unless the deletion\nof such provision shall cause this Agreement to become materially adverse to any\nparty, in which event the parties shall use Reasonable Efforts to arrive at an\naccommodation which best preserves for the parties the benefits and obligations\nof the offending provision.\n\n     7.5  Governing Law.  This Agreement shall be construed, interpreted and the\n          -------------                                                         \nrights of the parties determined in accordance with the laws of the State of\nCalifornia, as applied to agreements among California residents entered into and\nwholly to be performed within the State of California (without reference to any\nchoice of law rules that would require the application of the laws of any other\njurisdiction).\n\n     7.6  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.\n\n     7.7  Headings.  The headings of the Articles and Sections herein are\n          --------                                                       \ninserted for convenience of reference only and are not intended to be a part of\nor to affect the meaning or interpretation of this Agreement.\n\n     7.8  Amendment and Waiver.  The parties may by mutual agreement amend this\n          --------------------                                                 \nAgreement in any respect, and any party, as to such party, may (a) extend the\ntime for the performance of any of the obligations of any other party, (b) waive\nany inaccuracies in representations by any other party, (c) waive compliance by\nany other party with any of the agreements contained herein and performance of\nany obligations by such other party, and (d) waive the fulfillment of any\ncondition that is precedent to the performance by such party of any of its\nobligations under this Agreement.  To be effective, any such amendment or waiver\nmust be in writing and be signed by the party against whom enforcement of the\nsame is sought.\n\n     7.9  U.S. Currency.  Unless otherwise stated, all dollars specified in this\n          -------------                                                         \nAgreement, and the Exhibits and Schedules attached or referred to herein, shall\nbe in U.S. dollars.\n\n \n\n                            [signature page follows]\n\n                                       16\n\n \n     IN WITNESS WHEREOF, each of AMD and the Company has caused this\nReorganization Agreement to be duly executed on its behalf by its duly\nauthorized officer as of the day and year first written above.\n\n                                       ADVANCED MICRO DEVICES, INC., a \n                                       Delaware corporation\n\n\n                                       \/s\/ Thomas M. McCoy\n                                       ----------------------------\n                                       Name:  Thomas M. McCoy\n                                            -----------------------\n                                       Title: Senior Vice President\n                                             ----------------------\n\n\n\n                                       BOLDCO, INC., a California corporation\n\n\n\n                                       \/s\/ Thomas M. McCoy\n                                       ----------------------------\n                                       Name:  Thomas M. McCoy\n                                            -----------------------\n                                       Title: President\n                                             ----------------------\n\n                                       17\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6576],"corporate_contracts_industries":[9512],"corporate_contracts_types":[9622,9628],"class_list":["post-43365","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-advanced-micro-devices-inc","corporate_contracts_industries-technology__semiconductors","corporate_contracts_types-planning","corporate_contracts_types-planning__separation"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43365","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43365"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43365"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43365"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43365"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}