\n11.2 Tax Covenants………………………………………….. 56
\n11.3 Refunds……………………………………………….. 56
\n11.4 Tax Benefits…………………………………………… 57
\n11.5 Returns and Reports…………………………………….. 58
\n11.6 Disputes………………………………………………. 60
\n11.7 Section 338 Election……………………………………. 60
\n11.8 Termination of Tax Sharing Agreements…………………….. 61
\n11.9 Price Adjustment……………………………………….. 62
\n11.10 Survival………………………………………………. 62<\/p>\n ARTICLE XII<\/p>\n
PUBLICITY\/CONFIDENTIALITY<\/p>\n
12.1 Publicity and Reports…………………………………… 62
\n12.2 Confidentiality………………………………………… 62<\/p>\n
ARTICLE XIII<\/p>\n
DEFINITIONS<\/p>\n
13.1 General Provisions……………………………………… 64
\n13.2 Specific Provisions…………………………………….. 64<\/p>\n
ARTICLE XIV<\/p>\n
GENERAL<\/p>\n
14.1 Amendments; Waivers…………………………………….. 77
\n14.2 Exhibits and Schedules; Integration………………………. 77
\n14.3 Reasonable Efforts……………………………………… 78
\n14.4 Further Assurances……………………………………… 78
\n14.5 Governing Law………………………………………….. 78
\n14.6 No Assignment………………………………………….. 79
\n14.7 Headings………………………………………………. 79
\n14.8 Counterparts…………………………………………… 79
\n14.9 Parties in Interest…………………………………….. 79
\n14.10 Performance by Subsidiaries……………………………… 80
\n14.11 Notices……………………………………………….. 80
\n14.12 Expenses………………………………………………. 81
\n14.13 Attorneys’ Fees………………………………………… 81
\n14.14 Representation By Counsel; Interpretation…………………. 82
\n14.15 Severability…………………………………………… 82
\n<\/c><\/c><\/s><\/table>\n
TABLE OF CONTENTS
\n (continued)
\n Page<\/p>\n
14.16 Dispute Resolution; Agreement to Arbitrate………………… 82<\/p>\n
TABLE OF CONTENTS<\/p>\n
SCHEDULES<\/p>\n
Disclosure Schedule<\/p>\n
1.2 Outstanding Stock Options
\n2.1(a) Subsidiaries; Capitalization; Ownership
\n2.1(b) Directors and Executive Officers
\n2.2 Contracts to Acquire Equity Securities
\n2.3(b) Material Changes
\n2.3(c)(vi) Material Liabilities
\n2.5 Material Contracts
\n2.6(e) Material Contract Changes
\n2.6(h) Compensation Arrangements
\n2.7(a) Assets, Properties and Rights
\n2.7(b) Real Property
\n2.8(b)(i) Intellectual Property
\n2.8(b)(ii) and
\n (iii) Intellectual Property Licenses and Agreements
\n2.8(c) Intellectual Property Claims
\n2.8(d) Infringement Claims
\n2.9 Seller Approvals and Permits
\n2.10 Legal Proceedings
\n2.11 Insurance
\n2.16 Company Plans
\n2.17 Bank Accounts
\n2.21 Customers
\n3.2 Buyer Approvals and Permits
\n5.5 Intercompany Agreements
\n5.6 Other Sale Expenses
\n5.8 Real Property Leases
\n8.2 Real Property Leases to be Assigned
\n13.2 Knowledge<\/p>\n
STOCK PURCHASE AGREEMENT<\/p>\n
This STOCK PURCHASE AGREEMENT dated as of April 21, 1999 by and
\nbetween Lattice Semiconductor Corporation, a Delaware corporation (“Buyer”), and
\nAdvanced Micro Devices, Inc., a Delaware corporation (“Seller”). Certain
\ncapitalized terms used in this Agreement are defined in Section 13.2 hereof.<\/p>\n
W I T N E S S E T H
\n ——————-<\/p>\n
WHEREAS, Seller owns and will own as of the Closing Date all of the
\nissued and outstanding capital stock (the “Stock”) of Vantis Corporation, a
\nDelaware corporation (“Company”); and<\/p>\n
WHEREAS, Seller desires to sell, and Buyer desires to purchase, the
\nStock on the terms and conditions hereinafter set forth.<\/p>\n
NOW THEREFORE, in consideration of the mutual promises and covenants
\ncontained herein and intending to be legally bound, Buyer and Seller do hereby
\nagree as follows:<\/p>\n
ARTICLE I<\/p>\n
PURCHASE AND SALE\/COMPANY OPTIONS\/CLOSING<\/p>\n
1.1 Transfer of the Stock by Seller. (a) Subject to the terms and
\n ——————————-
\nconditions of this Agreement, Seller agrees to sell, assign and transfer good
\nand valid title and interest in and to the Stock free and clear of all
\nEncumbrances and deliver the certificate(s) representing the Stock, to Buyer at
\nthe Closing. The certificate(s) shall be properly endorsed for transfer to, or
\naccompanied by a duly executed stock power in favor of, Buyer.<\/p>\n
(b) Purchase of the Stock by Buyer; Purchase Price; Amount
\n ——————————————————
\nPayable at Closing. Subject to the terms and conditions of this Agreement, Buyer
\n——————
\nagrees to purchase all of the right, title and interest in and to the Stock from
\nSeller and to pay to Seller the Purchase Price. The “Purchase Price” shall be
\n$500,000,000 (Five Hundred Million Dollars) (the “Base Price”) adjusted by the
\nClosing Equity Adjustment Amount (which may be a negative number). At the
\nClosing, Buyer shall pay the Estimated Purchase Price (determined in accordance
\nwith Section 1.4) to Seller by wire transfer of funds immediately available in
\nthe City of San Francisco.<\/p>\n
1.2 Company Options. On the Closing Date, the Company Stock Option
\n —————
\nPlans and each outstanding option to purchase shares of Company common stock
\nunder the Company Stock Option Plans (the “Company Options”) as of the Closing
\nDate will be assumed by Buyer and each Company Option shall become an option to
\npurchase shares of Buyer common stock, as determined below. In addition, Buyer
\nwill honor the provisions of the Company Options respecting vesting and
\nexercisability and shall treat the consummation of the transactions contemplated
\nhereby as a “Change in Control” for purposes thereof, all upon the same terms
\nand conditions as set forth therein. All of the terms and conditions of each
\nCompany Option in effect immediately prior to the assumption shall continue in
\nfull force and effect under the assumed option, except that, (i) as appropriate,
\nreferences to Company under such option shall be deemed to be references to
\nBuyer, (ii) each Company Option shall be exercisable (or shall become
\nexercisable in accordance with its terms) for that number of whole shares of
\nBuyer common stock equal to the product of (a) the number of shares of Company
\ncommon stock that were issuable upon exercise of the Company Option immediately
\nprior to the Closing Date and (b) the Exchange Ratio (as defined below), rounded
\nup to the nearest whole number of shares of<\/p>\n
2<\/p>\n
Buyer common stock, and (c) the per share exercise price for the shares of Buyer
\ncommon stock issuable upon exercise of such assumed Company Option shall be
\nequal to the quotient determined by dividing (A) the exercise price per share of
\nthe Company Option immediately prior to the Closing Date by (B) the Exchange
\nRatio, rounded up to the nearest whole cent. The Exchange Ratio shall mean the
\nquotient determined by dividing the Company Per Share Value by the Buyer Per
\nShare Value. The Company Per Share Value shall equal the quotient determined by
\ndividing the Purchase Price by the fully diluted number of shares of Company
\ncommon stock outstanding immediately prior to the close of this transaction
\n(reflecting all shares subject to the Company Options, without applying the
\ntreasury method). The Buyer Per Share Value shall equal the average of the
\nclosing sales prices as reported on the Nasdaq National Market for a share of
\nBuyer common stock for the five most recent trading days that the Buyer common
\nstock is traded ending three days prior to the date on which the execution of
\nthis Agreement is publicly announced. Company and Seller shall take all actions
\nnecessary to provide that upon the Closing Date, all outstanding Company Options
\ncan be automatically assumed by Buyer. Schedule 1.2 sets forth a list as of the
\n ————
\ndate hereof of all holders of Company Options, including, with respect to each
\nCompany Option, the number of shares of Company common stock subject to each
\nsuch Company Option, the exercise price per share, the termination date, and the
\nvesting schedule. As soon as reasonably practicable, but in no event more than
\nthe later of 90 days after the Closing Date and 14 days after final
\ndetermination of the Closing Equity Adjustment Amount pursuant to Section 1.5,
\nBuyer will issue to each person who immediately prior to the Closing Date was a
\nholder of Company Options a document evidencing the foregoing assumption of such
\noption by Buyer.<\/p>\n
3<\/p>\n
1.3 The Closing. The Closing shall take place at the offices of
\n ———–
\nO’Melveny & Myers LLP, Embarcadero Center West, 275 Battery Street, San
\nFrancisco, California 94111-3305, as soon as practicable after all conditions
\nspecified in Articles VI, VII and VIII have been satisfied or waived in
\naccordance with this Agreement, but not later than the fifth business day
\nfollowing the date that all conditions specified in Articles VI, VII and VIII
\nhave been satisfied or waived in accordance with this Agreement, or at such
\nother place or on such other date as Seller and Buyer may mutually agree.<\/p>\n
1.4 Determination of Estimated Closing Equity Adjustment Amount.
\n ———————————————————–
\nThe “Estimated Purchase Price” shall be the Base Price as adjusted by the
\nEstimated Closing Equity Adjustment Amount (as defined below) (which shall not
\nexceed a positive $5,000,000 and which may be a negative number). Not later than
\nfive business days prior to the Closing Date, Seller shall deliver to Buyer a
\nwritten notice setting forth Seller’s good faith estimate (applying the Agreed
\nAccounting Principles) as of the Closing Date of the Closing Equity Adjustment
\nAmount (the “Estimated Closing Equity Adjustment Amount”) and, based thereon,
\nSeller’s calculation of the Estimated Purchase Price, which shall be binding on
\nBuyer and Seller as the Estimated Purchase Price hereunder absent manifest
\nerror. Such notice shall be accompanied by the estimated balance sheet used to
\nprepare the Estimated Closing Equity Adjustment Amount, including (in reasonable
\ndetail) an explanation of the methods used (including estimates of cash flows
\nand income) to “roll forward” the estimated line items set forth therein from
\nthe immediately preceding month’s end balance sheet and related statements of
\nresults of operations and cash flows, copies of which shall also accompany the
\nnotice. Seller shall make, upon Buyer’s request, its appropriate personnel and
\nrecords available to Buyer’s internal and external <\/p>\n
4<\/p>\n
accountants for purposes of explaining the assumptions and estimates used in the
\npreparation of the Estimated Closing Equity Adjustment Amount.<\/p>\n
1.5 Determination of Closing Equity Adjustment Amount.
\n ————————————————- <\/p>\n
(a) Following the Closing, the parties shall observe the
\nprocedures set forth in this Section 1.5 to determine the Closing Equity
\nAdjustment Amount. Promptly, but in any event not later than five business days
\nafter the final determination thereof in accordance herewith, (i) in the event
\nthat the difference between the Closing Equity Adjustment Amount and the
\nEstimated Closing Equity Adjustment Amount (i.e., the Closing Equity Adjustment
\nAmount minus the Estimated Closing Equity Adjustment Amount) is positive, Buyer
\nshall pay to Seller by wire transfer of immediately available funds to an
\naccount specified by Seller an amount equal to such difference plus interest
\nthereon from the Closing Date to the date of payment thereof at the Agreed Rate,
\nor (ii) in the event that the difference between the Closing Equity Adjustment
\nAmount and the Estimated Closing Equity Adjustment Amount (i.e., the Closing
\nEquity Adjustment Amount minus the Estimated Closing Equity Adjustment Amount)
\nis negative, Seller shall pay to Buyer by wire transfer of immediately available
\nfunds to an account specified by Buyer an amount equal to such difference plus
\ninterest thereon from the Closing Date to the date of payment thereof at the
\nAgreed Rate.<\/p>\n
(b) Within sixty days after the Closing Date, Buyer shall
\nprepare and deliver to Seller a notice setting forth its determination of the
\nClosing Equity Adjustment Amount (the “Initial Closing Equity Statement”) and
\nsetting forth in reasonable detail the basis for such determination. Such notice
\nshall be accompanied by the consolidated balance sheet of the Company used to
\nprepare the Initial Closing Equity Statement (the “Initial Balance Sheet”),<\/p>\n
5<\/p>\n
together with the related estimated statement of results of operation and cash
\nflows for the period from December 28, 1998 to the Closing Date used to prepare
\nthe Initial Balance Sheet. During the sixty days next following Seller’s receipt
\nof the Initial Closing Equity Statement, Seller and its representatives will be
\npermitted to review Buyer’s working papers relating to the Initial Closing
\nEquity Statement as well as all of the books and records relating to the
\noperations and finances of the Business with respect to the period up to and
\nincluding the Closing Date, and Buyer shall make reasonably available in Buyer’s
\noffices the individuals responsible for the preparation of the Initial Closing
\nEquity Statement in order to respond to the reasonable inquiries of Seller
\nrelating thereto.<\/p>\n
(c) If Seller disagrees with Buyer’s calculation of the
\nClosing Equity Adjustment Amount, then not later than sixty days following
\nSeller’s receipt of the Initial Closing Equity Statement, Seller shall so notify
\nBuyer in writing (the “Notice of Disagreement”), setting forth in reasonable
\ndetail the basis for such disagreement, the dollar amounts involved and Seller’s
\ngood faith calculation of the Closing Equity Adjustment Amount. Such notice
\nshall be accompanied by the consolidated balance sheet of the Company used to
\nprepare the Notice of Disagreement (the “Protest Balance Sheet”), together with
\nthe related statement of results of operations and cash flows used to prepare
\nthe Protest Balance Sheet. If no Notice of Disagreement is received by Buyer
\nwithin such sixty day period, then the Initial Closing Equity Statement, and its
\nrelated balance sheet, shall be deemed to have been accepted by Seller, shall
\nbecome final and binding upon the parties, the Closing Equity Adjustment Amount
\nas indicated therein shall be the final Closing Equity Adjustment Amount
\nhereunder and its related balance sheet shall be the final Closing Balance
\nSheet.<\/p>\n
6<\/p>\n
(d) During the twenty business days immediately following the
\ndelivery of a Notice of Disagreement (if any), Seller and Buyer shall seek in
\ngood faith to resolve any differences which they may have with respect to any
\nmatter specified in the Notice of Disagreement. If at the end of such twenty
\nbusiness day period Seller and Buyer have been unable to agree upon the Closing
\nEquity Adjustment Amount and a supporting balance sheet therefor, Seller and
\nBuyer shall submit to the Independent Accounting Firm for review and resolution
\nany and all matters which remain in dispute with respect to the Notice of
\nDisagreement. If required to do so by such Independent Accounting Firm, in
\nconnection with its engagement, Buyer and Seller shall (i) negotiate in good
\nfaith to agree to a specific materiality level for the conduct of the engagement
\n(which shall not exceed $30,000 nor be less than $10,000 per individual item)
\nand (ii) submit the Initial Balance Sheet (with such changes as may then have
\nbeen agreed by Seller and Buyer) to such Independent Accounting Firm for audit.
\nBuyer and Seller shall use commercially practicable efforts to cause the
\nIndependent Accounting Firm to make a final determination as promptly as
\npracticable, but in no event later than sixty days from submission of the
\nInitial Balance Sheet to the Independent Accounting Firm, binding on the parties
\nhereto, of the Closing Equity Adjustment Amount and a supporting balance sheet
\ntherefor, and such final determination shall be the final Closing Equity
\nAdjustment Amount. The supporting balance sheet as agreed by the parties or as
\ndetermined by the Independent Accounting Firm pursuant to this Section 1.5(d)
\nshall then be the final Closing Balance Sheet. The cost of the Independent
\nAccounting Firm’s review and determination shall be paid by the party which has
\ndetermined an amount of the Closing Equity Adjustment Amount that is the
\ngreatest amount different from the amount of the same determined by the
\nIndependent Accounting Firm. During the review by the Independent Accounting
\nFirm, Buyer and Seller will<\/p>\n
7<\/p>\n
each make available to the Independent Accounting Firm interviews with such
\nindividuals and such information, books and records as may be reasonably
\nrequired by the Independent Accounting Firm to make its final determination.<\/p>\n
(e) Seller and Buyer agree that, in the case of Seller,
\nprior to the Closing and, in the cause of Buyer, following the Closing through
\nthe date that payment, if any, is made pursuant to Section 1.5(a), it will not
\ntake any actions with respect to any accounting books, records, policy or
\nprocedure that would affect the determination of the Closing Equity Adjustment
\nAmount that are inconsistent with past practices of Company or that would make
\nit impossible or impracticable to calculate the Closing Equity Adjustment Amount
\nin the manner and utilizing the methods required hereby.<\/p>\n
ARTICLE II<\/p>\n
REPRESENTATIONS AND WARRANTIES OF SELLER<\/p>\n
Seller represents and warrants to Buyer as follows:<\/p>\n
2.1 Organization and Related Matters. Seller and Company are
\n ——————————–
\neach corporations duly organized, validly existing and in good standing under
\nthe laws of their respective jurisdictions of incorporation. Seller has all
\nnecessary corporate power and authority to execute, deliver and perform its
\nobligations under this Agreement. Schedule 2.1(a) sets forth, as of the date
\n —————
\nhereof, the equity capitalization of each Subsidiary and Company’s direct or
\nindirect ownership interest therein and the jurisdiction in which each
\nSubsidiary was organized. Except as set forth on Schedule 2.1(a), neither
\n —————
\nCompany nor any Subsidiary holds any Equity Securities of any person. Schedule
\n ——–
\n2.1(b) sets forth the current directors and executive officers of Company and of
\n——
\neach Subsidiary. Each of the Subsidiaries is a corporation duly organized,<\/p>\n
8<\/p>\n
validly existing and in good standing under the laws of the jurisdiction of its
\nincorporation. Company and the Subsidiaries have all necessary corporate power
\nand authority to own or lease their respective properties and assets, as
\napplicable, and to carry on their respective businesses as now conducted and are
\nduly qualified or licensed to do business as foreign corporations in good
\nstanding in all jurisdictions, except where the failure to be so qualified or
\nlicensed is not material to the Business. Neither Company nor any of the
\nSubsidiaries is a registered or reporting company under the Exchange Act. True,
\ncorrect and complete copies of the respective charter documents, including all
\namendments, of Company and the Subsidiaries have been delivered to Buyer.<\/p>\n
2.2 Stock. Seller beneficially and of record owns all of the
\n —–
\nshares of capital stock of Company outstanding. Company beneficially and of
\nrecord owns all of the outstanding Equity Securities of each of the
\nSubsidiaries, directly or indirectly through a wholly owned Subsidiary. All of
\nsuch Equity Securities of Company and the Subsidiaries are owned free and clear
\nof any Encumbrances. At the Closing, Buyer will acquire good and marketable
\ntitle to and complete ownership of all of the capital stock of Company
\noutstanding on the Closing Date, free and clear of any Encumbrances. The
\nauthorized capital stock of Company consists of 150,000,000 shares of common
\nstock, $0.01 par value, of which 100,000,000 shares are issued and outstanding
\non the date hereof. Except for the Company Options listed in Schedule 1.2, there
\n ————
\nare no outstanding Contracts or other rights to subscribe for or purchase, or
\nContracts or other obligations to issue or grant any rights to acquire, any
\nEquity Securities of Company or any Subsidiary, or to restructure or
\nrecapitalize Company or any Subsidiary. Except as set forth on Schedule 2.2,
\n ————
\nthere are no outstanding Contracts of Seller, Company or any Subsidiary to
\nrepurchase, redeem or otherwise acquire any Equity Securities of Company or any
\nSubsidiary. <\/p>\n
9<\/p>\n
All outstanding Equity Securities of Company and the Subsidiaries are duly
\nauthorized, validly issued and outstanding and are fully paid and nonassessable,
\nand were issued in conformity with applicable Laws. There are no preemptive
\nrights in respect of any Equity Securities of Company or any Subsidiary.<\/p>\n
2.3 Financial Statements; No Other Liabilities.
\n —————————————— <\/p>\n
(a) Seller has delivered to Buyer true, correct and complete
\ncopies of Company’s audited consolidated balance sheets at fiscal year-end 1996,
\n1997 and 1998 and the related audited consolidated statement of operations and
\nstatement of cash flows for the periods ending December 1996, 1997 and 1998 (the
\n“Financial Statements”). Such Financial Statements have been prepared in
\nconformity with GAAP except as disclosed therein or in the footnotes thereto.
\nSuch Financial Statements reflect the conduct of Company as a division of
\nSeller, until September 1997. The statements of operations and cash flow present
\nfairly, in accordance with GAAP, the results of operations and cash flows of
\nCompany and the Subsidiaries for the respective periods covered, and the balance
\nsheets present fairly, in accordance with GAAP, the financial condition of
\nCompany and the Subsidiaries as of their respective dates. Since December 27,
\n1998, there has been no change in any of the significant accounting policies,
\nmethods, practices or procedures of Company and the Subsidiaries. Under cover of
\na letter dated of even date herewith, Seller has delivered to Buyer a true,
\ncorrect and complete copy of Company’s unaudited consolidated balance sheet at
\nMarch 28, 1999 and the related unaudited consolidated statement of operations
\nand statement of cash flows for the three months then ended. Such financial
\nstatements have been prepared in conformity with GAAP (except for the absence of
\nnotes, normal year-end audit adjustments and accruals for profit-sharing). Such
\nstatement of operations and statement of cash flows present fairly in accordance
\nwith GAAP, the <\/p>\n
10<\/p>\n
results of operations and cash flows of Company for the period covered and such
\nbalance sheet presents fairly, in accordance with GAAP, the financial condition
\nof Company as of its date.<\/p>\n
(b) Except as set forth on Schedule 2.3(b), since December
\n —————
\n27, 1998, whether or not in the ordinary course of business, there has not been,
\noccurred or arisen any change in or event affecting Company or any of the
\nSubsidiaries that has or would have a material adverse effect on the Business
\n(other than matters of general applicability to Company’s industry and matters
\narising in connection with this Agreement).<\/p>\n
(c) Neither Company nor any Subsidiary has any liabilities
\nof any nature, whether accrued, absolute, contingent or otherwise, and whether
\ndue or to become due, probable of assertion or not, except liabilities that (i)
\nare reflected or disclosed in the March 28, 1999 balance sheet described in
\nclause (a) above, (ii) are reflected in the notes to the balance sheet included
\nin the most recent of the Financial Statements, (iii) are obligations set forth
\nin any Contracts listed in the Schedules to this Agreement or in Contracts not
\nrequired to be listed in such Schedules, (iv) are disclosed in any of the
\nSchedules to this Agreement, (v) were incurred in the ordinary course of
\nbusiness, or (vi) except as set forth in Schedule 2.3(c)(vi), do not exceed
\n ——————-
\n$200,000 individually or $2,000,000 in the aggregate.<\/p>\n
2.4 Taxes. All federal Tax Returns and all material state,
\n —–
\nlocal and foreign Tax Returns that are required to be filed by or with respect
\nto Company and each Subsidiary on or before the Closing Date have been or prior
\nto the Closing will be duly filed, and all Taxes shown as due on such Tax
\nReturns have been paid or will be paid in full. No issues relating to Company or
\nany Subsidiary, that have been raised by the IRS or any other taxing authority
\nin connection with the examination of any of such Tax Returns, are currently
\npending.<\/p>\n
11<\/p>\n
2.5 Material Contracts. Schedule 2.5 lists each Contract which is
\n —————— ————
\na Material Contract. Each Material Contract is valid and subsisting, Company or
\nthe applicable Subsidiary has duly performed all its obligations under each
\nMaterial Contract to which Company or any Subsidiary is a party to the extent
\nthat such obligations to perform have accrued, and no breach or default (or, to
\nSeller’s knowledge, alleged breach or default) or event which would (with the
\npassage of time, notice or both) constitute a breach or default or loss of
\nrights or benefits by Company or the Subsidiary thereunder, as the case may be,
\nor, to Seller’s knowledge, any other party or obligor with respect thereto, has
\noccurred or, assuming that the requisite Approvals and Permits set forth on
\nSchedule 2.9 are sought and obtained, as a result of the execution, delivery and
\n————
\nperformance of this Agreement will occur, except for such, as individually or in
\nthe aggregate, as would not have a material adverse effect on the Business.
\nTrue, correct and complete copies of the agreements identified in Schedule 2.5,
\n ————
\nincluding all amendments and supplements, have been delivered to Buyer (subject
\nto compliance with applicable confidentiality restrictions for the contracts
\nthat are so indicated on Schedule 2.5).
\n ———— <\/p>\n
2.6 Changes. Since December 27, 1998, there has not been:
\n ——- <\/p>\n
(a) excluding any changes which may occur after the date of
\nthis Agreement as a result of the transactions contemplated by this Agreement,
\nany change (other than changes affecting Company’s industry generally) that has
\nor would have a material adverse effect on the Business, except (i) changes
\nreflected in the unaudited balance sheet of Company at March 28, 1999, (ii)
\nchanges in the ordinary course of business, which have not been, individually or
\nin the aggregate, materially adverse to the Business, and (iii) repayment by
\nSeller to Company of an intercompany loan in an approximate amount of
\n$12,000,000 on March 29, 1999.<\/p>\n
12<\/p>\n
(b) any damage, destruction or loss, whether or not covered by
\ninsurance, materially and adversely affecting the assets, properties, financial
\ncondition, cash flows or operating results of Company and Subsidiaries, taken as
\na whole;<\/p>\n
(c) any waiver by Company or any Subsidiary of a valuable right or
\nof a debt owed to it, except for such as have not been, individually or in the
\naggregate materially adverse to the Business;<\/p>\n
(d) any satisfaction or discharge of any lien, claim of encumbrance
\nor payment of any obligation by Company or any Subsidiary, except in the
\nordinary course of business and that is not material to the assets, properties,
\nfinancial condition, operating results or Business (as such Business is
\npresently conducted);<\/p>\n
(e) except as set forth on Schedule 2.6(e), any change or amendment
\n —————
\nto a Material Contract;<\/p>\n
(f) except for the Company Options and issuances thereunder, any
\nchange in the outstanding capital stock of Company;<\/p>\n
(g) except for intercompany loans to Seller which have been paid in
\nfull, any loan, guaranty or other extension of credit to any Person;<\/p>\n
(h) except as described on Schedule 2.6(h), any material change
\n —————
\nin any compensation arrangement or agreement with any key employee; or<\/p>\n
(i) other than dispositions of surplus equipment, furniture and
\nfixtures and dispositions of inventory in the ordinary course of business, any
\nsale, disposition, transfer or <\/p>\n
13<\/p>\n
encumbrance of any material property owned by Company or any Subsidiary, or any
\ntermination, modification or amendment of any material lease of property to
\nwhich Company or any Subsidiary was a party on December 27, 1998.<\/p>\n
2.7 Properties.
\n ———- <\/p>\n
(a) Except for dispositions of surplus equipment, furniture,
\nfixtures, dispositions in the ordinary course of business and dispositions
\nreflected on the March 28, 1999 unaudited consolidated balance sheet described
\nin Section 2.3(a), Company and the Subsidiaries have good title to or, in the
\ncase of leased assets and properties, valid leasehold interests in, all tangible
\nreal and personal assets and properties that they respectively own or lease and
\nthat are used in and material to conduct of the Business, including, but not
\nlimited to, all such assets that they respectively own or lease as reflected in
\nthe December 1998 balance sheet referred to in Section 2.3(a). Such assets are
\nsufficient for the conduct of the Business as currently conducted. None of such
\nassets or properties is subject to any Encumbrances other than Permitted
\nEncumbrances. Except as set forth on Schedule 2.7(a), the assets, properties and
\n —————
\nrights of Company and the Subsidiaries (including contract rights and intangible
\nassets, properties and rights) include all of the assets, properties and rights
\nof Seller, its subsidiaries and any of their controlled Affiliates primarily
\nused in the Business.<\/p>\n
(b) Company and the Subsidiaries do not own any real
\nproperty. Schedule 2.7(b) sets forth a list of all real property currently
\nleased or subleased by Company (other than foreign office space provided by
\nSeller and its Affiliates) or any Subsidiary (each a “Lease”). With respect to
\neach property listed on Schedule 2.7(b):
\n ————— <\/p>\n
14<\/p>\n
(i) the Lease is valid and subsisting, and there is
\n not, under such Lease, any existing default or event of default (or
\n event which with notice or lapse of time, or both, would constitute a
\n default) by Company or any Subsidiary or, if Seller or any subsidiary
\n is a party to such Lease, by Seller or such subsidiary of Seller, or
\n to Seller’s knowledge, any other party thereto; and<\/p>\n
(ii) to Seller’s knowledge, no third party to a
\n material Lease has repudiated any provisions thereof.<\/p>\n
(c) All material items of equipment owned or leased by
\nCompany or any Subsidiary used in the Business are in adequate operating
\ncondition, regularly and properly maintained, subject to normal wear and tear,
\nexcept, in each case, for such failures in condition and maintenance as do not
\nhave a material adverse effect on the Business.<\/p>\n
2.8 Intellectual Property.
\n ——————— <\/p>\n
(a) Company and Subsidiaries own, or are licensed or
\notherwise possess legally enforceable rights to use, all Intellectual Property
\nand trade secrets that are used in the Business as currently conducted, except
\nto the extent that the failure to have such rights is not material to the
\nBusiness.<\/p>\n
(b) Schedules 2.8(b)(i) and 2.8(b)(ii) and (iii) list (i)
\n ——————————————–
\n(A) all United States patents, including applications therefor, (B) all United
\nStates and international registered trademarks, applications to register
\ntrademarks, including intent-to-use applications, and (C) United States mask
\nwork registrations and applications to register mask works, which are owned by
\nCompany or licensed by Company and which are material to its Business (clauses
\n(A) <\/p>\n
15<\/p>\n
through (C) constituting “Registered Property”), including the jurisdictions in
\nwhich each such Intellectual Property right has been issued or registered or in
\nwhich any application for such issuance and registration has been filed, (ii)
\nall licenses, sublicenses and other agreements which are material to the
\nBusiness and as to which Seller, Seller’s controlled Affiliate, Company or a
\nSubsidiary is a party, and pursuant to which any other third party is authorized
\nor licensed to use any such Intellectual Property or trade secret, and (iii) all
\nlicenses, sublicenses and other agreements which are material to the Business
\nand as to which Seller, Seller’s controlled Affiliate, Company or a Subsidiary
\nis a party, and pursuant to which Seller, Seller’s controlled Affiliate, Company
\nor a Subsidiary is authorized to use any third party patents, trademarks, trade
\nsecrets, copyrights, maskworks or software which are incorporated in, are or
\nform a part of, any product that is sold by the Business.<\/p>\n
(c) To Company’s knowledge, except as to claims listed in
\nSchedule 2.8(c), there is no unauthorized use, disclosure, infringement or
\n—————
\nmisappropriation of any Intellectual Property rights of Company or any
\nSubsidiary, any trade secret material to Company or any Subsidiary, or any
\nIntellectual Property right of any third party to the extent licensed by or
\nthrough Company or any Subsidiary, by any third party, including any employee or
\nformer employee of Company or any Subsidiary. Neither Company nor any Subsidiary
\nhas entered into any agreement to indemnify any other person against any charge
\nof infringement of any Intellectual Property or misappropriation of any trade
\nsecrets, other than indemnification provisions contained in license agreements
\nfor such Intellectual Property or such trade secrets licensed by Company or in
\npurchase orders or customer agreements arising in the ordinary course of
\nbusiness.<\/p>\n
16<\/p>\n
After the Closing, all Registered Property owned by Company will be
\nfully transferable, alienable or licensable by Company without payment of any
\nkind to any third party.<\/p>\n
Buyer’s entering into this Agreement, either alone or in conjunction
\nwith the Continuing Intercompany Agreements, will not, by virtue of any
\nagreement to which Company is a party, (i) to Seller’s knowledge, cause Buyer to
\nbe obligated to grant to any third party any new material right to use any
\nIntellectual Property owned by, or licensed to, Buyer; (ii) cause Company to be
\nbound by or subject to any new non-competition obligation, or (iii) cause
\nCompany to be obligated to pay any royalty rate or other amount to any given
\nthird party in excess of the royalty rate or amount payable by Company to such
\ngiven third party prior to Closing.<\/p>\n
(d) Except as set forth on Schedule 2.8(d), Company (i) is not a
\n —————
\nparty to any suit, action or proceeding which involves a claim of infringement
\nof any patents, trademarks, copyrights or violation of any trade secret or other
\nIntellectual Property right of any third party and (ii) has not brought any
\naction, suit or proceeding for infringement of Intellectual Property or breach
\nof any license or agreement involving Intellectual Property against any third
\nparty. To Company’s knowledge, the manufacture, marketing, licensing or sale of
\nCompany’s products has not and does not infringe any Intellectual Property right
\nor misappropriate any trade secret of any third party, except where such
\ninfringement or misappropriation is not material to the Business.<\/p>\n
2.9 Authorization; No Conflicts. The execution, delivery and
\n —————————
\nperformance of this Agreement by Seller has been duly and validly authorized by
\nthe board of directors of Seller and by all other necessary corporate action on
\nthe part of Seller. This Agreement constitutes the legally valid and binding
\nobligation of Seller, enforceable against Seller in accordance with its terms,
\nexcept as such enforceability may be limited by bankruptcy, insolvency,
\nreorganization, <\/p>\n
17<\/p>\n
moratorium and other similar laws and equitable principles relating to or
\nlimiting creditors’ rights generally. The execution, delivery and performance of
\nthis Agreement by Seller will not directly or indirectly (a) contravene,
\nconflict with, violate, or constitute a breach or default (whether upon lapse of
\ntime and\/or the occurrence of any act or event or otherwise) under any provision
\nof the charter documents or by-laws of Seller, Company or any Subsidiary or any
\nresolution adopted by the board of directors or stockholders of Seller, Company
\nor any Subsidiary, (b) result in the imposition of any Encumbrance against any
\nmaterial asset or property owned, licensed or leased by Company or any
\nSubsidiary, or (c) contravene, conflict with or result in a violation of any Law
\nor Order to which Company, any Subsidiary or any of the assets owned licensed or
\nleased by any of them are subject, except, in each of clauses (b) through (c),
\nfor such contraventions, conflicts, impositions and violations, which,
\nindividually or in the aggregate, do not have a material adverse effect on the
\nBusiness. Schedule 2.9 lists, as of the date hereof, all Approvals and Permits
\n ————
\nrequired to be obtained by Seller, Company or any Subsidiary to consummate the
\ntransactions contemplated by this Agreement and to permit Company as a wholly-
\nowned subsidiary of Buyer to operate the Business without loss of material
\nrights, other than those which have been previously obtained. Except for the
\nApprovals and Permits identified on Schedule 2.9 as requiring that certain
\n ————
\nactions be taken by or with respect to a third party or Governmental Entity, the
\nexecution, delivery and performance of this Agreement by Seller will not require
\nany material filing or registration with, or the issuance of any material
\nApproval or Permit by, any third party or Governmental Entity.<\/p>\n
2.10 Legal Proceedings and Certain Labor Matters. Except as set
\n ———————————————————-
\nforth in Schedule 2.10, there is no Order or Action pending, or, to Seller’s
\n———————-
\nknowledge, threatened, against Company or any Subsidiary or any of their
\nrespective properties or assets that individually or<\/p>\n
18<\/p>\n
when aggregated with one or more other such Orders or Actions has, or, if
\ndetermined adversely to the interests of Seller, Company or Buyer can be
\nreasonably expected to have, a material adverse effect on the Business or
\nSeller’s ability to perform its obligations under this Agreement. There is no
\norganized labor strike, dispute, slowdown or stoppage, or collective bargaining
\nor unfair labor practice claim pending or, to Seller’s knowledge, threatened,
\nagainst or affecting Company or any Subsidiary. Schedule 2.10 lists, each
\n ————-
\npending Order and each Action that involves a claim or potential claim of
\naggregate liability in excess of $250,000 against, or that enjoins or seeks to
\nenjoin any activity of Company or any Subsidiary.<\/p>\n
2.11 Insurance. Schedule 2.11 lists, as of the date hereof, all
\n ——— ————-
\ninsurance policies owned by Seller under which Company and the Subsidiaries are
\ninsured. Under the terms thereof, Company and the Subsidiaries are, and at all
\ntimes during the past year have been, insured with reputable insurers against
\nthe types of risks normally insured against by companies in similar lines of
\nbusiness. All of such insurance policies to the extent Company and the
\nSubsidiaries are insured thereby or participate therein, are in full force and
\neffect and neither Seller nor Company or any Subsidiary is in material default
\nthereunder. Company and Subsidiaries have timely filed claims with their
\nrespective insurers with respect to all material losses for which they believe
\nthey have coverage.<\/p>\n
2.12 Permits. Company and the Subsidiaries hold all Permits that
\n ——-
\nare required by any Governmental Entity to permit each of them to conduct their
\nrespective businesses as now conducted, and all such Permits are valid and in
\nfull force and effect, except, in each case, for those which would not have a
\nmaterial adverse effect on the Business.<\/p>\n
19<\/p>\n
2.13 Compliance with Law. Company and the Subsidiaries have
\n ——————-
\nconducted the Business in all material respects in accordance with applicable
\nLaw (including the receipt of all Permits material to the conduct of the
\nBusiness). No suspension, cancellation or termination of any material Permits is
\npending or, to Seller’s knowledge, threatened.<\/p>\n
2.14 Environmental Compliance. Company’s and the Subsidiaries’
\n ————————
\nproperties are, in all material respects, in compliance with all applicable
\nEnvironmental Laws, and Company has no knowledge and has received no notice of
\nany material unresolved violation or alleged violation of any Environmental Laws
\nin its conduct of the Business.<\/p>\n
2.15 Dividends and Other Distributions. There has been no dividend
\n ———————————
\nor other distribution of assets or securities by Company or any Subsidiary,
\nwhether consisting of money, property or any other thing of value, declared,
\nissued or paid subsequent to the date of the latest financial statements
\nreferred to in Section 2.3(a).<\/p>\n
2.16 Employee Benefits. Schedule 2.16 sets forth, as of the date
\n —————–
\nhereof, a complete list of all Employee Pension Benefit Plans (as defined in
\nSection 3(2) of ERISA), Employee Welfare Benefit Plans (as defined in Section
\n3(1) of ERISA) and any other significant employee benefit arrangements
\nmaintained by Company and the Subsidiaries or to which Company and the
\nSubsidiaries contribute or to which Company or any Subsidiaries would have any
\nliability or obligation (collectively, the “Company Plans”). No Company Plan is
\nsubject to Title IV of ERISA, nor is any such plan a multiemployer plan (within
\nthe meaning of Section 3(37) of ERISA). With respect to each Company Plan:<\/p>\n
20<\/p>\n
(a) such Company Plan has been administered in all material
\nrespects in accordance with its terms and, to the extent it is subject to any
\nrequirements under ERISA or the Code, complies in all material respects
\ntherewith;<\/p>\n
(b) all contributions payable by Seller, Company, or any of
\ntheir respective Affiliates which are due, if any, to such Company Plan have
\nbeen paid in full;<\/p>\n
(c) Seller has delivered to Buyer complete copies of the
\ncurrent plan documents with respect to the Company Plans, together with copies
\nof any and all amendments thereof adopted through the date hereof;<\/p>\n
(d) there is no pending or threatened legal action,
\nproceeding or investigation against such Company Plan or the assets of any of
\nthe trusts under such Company Plan that is reasonably likely to have a material
\nadverse effect on the Business; and<\/p>\n
(e) there have been no non-exempt “prohibited transactions”
\nwithin the meaning of Section 406 of ERISA and Section 4975 of the Code or
\nbreaches of fiduciary duty with respect to such Company Plan that are reasonably
\nlikely to have a material adverse effect on the Business.<\/p>\n
2.17 Bank Accounts, Powers, etc. Schedule 2.17 lists, each bank,
\n ————————— ————-
\ntrust company, savings institution, brokerage firm, mutual fund or other
\nfinancial institution with which Company or any Subsidiary has an account or
\nsafe deposit box and the names and identification of all Persons authorized to
\ndraw thereon or to have access thereto.<\/p>\n
2.18 No Brokers or Finders. No agent, broker, finder, or
\n ———————
\ninvestment or commercial banker, or other Person or firm engaged by or acting on
\nbehalf of Seller, Company <\/p>\n
21<\/p>\n
or any Subsidiary or any of their respective Affiliates in connection with the
\nnegotiation, execution or performance of this Agreement or the transactions
\ncontemplated by this Agreement, is or will be entitled to any brokerage or
\nfinder’s or similar fee or other commission as a result of this Agreement or
\nsuch transactions, except for Morgan Stanley Dean Witter and Donaldson, Lufkin & Jenrette (in each case for their services on behalf of Seller), as to which
\nSeller shall have full responsibility and none of Buyer, Company or any
\nSubsidiary shall have any liability.<\/p>\n
2.19 Certain Interests. No controlled Affiliate of Seller,
\n —————–
\nCompany or any Subsidiary, nor any officer, director or Affiliate thereof, has
\nany material interest in any property used in or pertaining to the Business or,
\nto Seller’s knowledge, any customer or supplier doing business with Company or
\nany of the Subsidiaries.<\/p>\n
2.20 Receivables. All receivables of Company and the Subsidiaries,
\n ———–
\nwhether reflected on the balance sheet or otherwise, represent sales actually
\nmade in the ordinary course of business. Reserves shown on Company’s audited
\nconsolidated balance sheet at December 27, 1998 referred to in Section 2.3(a)
\nare adequate as of such date and were calculated on a basis consistent with GAAP
\nand past practices. Seller has delivered to Buyer a complete and accurate aging
\nlist of all receivables of Company and the Subsidiaries as of March 28, 1999.<\/p>\n
2.21 Customers and Suppliers. Schedule 2.21 lists the names of the
\n ———————– ————-
\nfive largest customers of the Business for the fiscal year ended December 27,
\n1998.<\/p>\n
2.22 Amended Schedules. Seller may, within 3 days prior to the
\n —————–
\nClosing Date, deliver to Buyer an amendment to Schedules 2.5, 2.8(c), 2.8(d)
\n ——————— —-
\nand 2.10, which amendment shall reflect any additions to such Schedules for
\nevents occurring from the date hereof to the Closing Date.<\/p>\n
22<\/p>\n
2.23 Disclaimer of Representations and Warranties. Seller
\n ——————————————–
\nacknowledges and agrees that the purchase and sale of the Stock hereunder shall
\nbe without representation or warranty by Buyer, express or implied, except as
\nspecifically set forth in Article III.<\/p>\n
ARTICLE III<\/p>\n
REPRESENTATIONS AND WARRANTIES OF BUYER<\/p>\n
Buyer represents and warrants to Seller as follows:<\/p>\n
3.1 Organization and Related Matters. Buyer is a corporation duly
\n ——————————–
\nacknowledges and validly existing and in good standing under the laws of the
\njurisdiction of its incorporation. Buyer has all necessary corporate power and
\nauthority to execute, deliver and perform its obligations under this Agreement
\nand to carry on its business as now being conducted.<\/p>\n
3.2 Authorization; No Conflicts. The execution, delivery and
\n —————————
\nperformance of this Agreement by Buyer has been duly and validly authorized by
\nthe board of directors of Buyer and by all other necessary corporate action on
\nthe part of Buyer and its Affiliates. This Agreement constitutes the legal,
\nvalid and binding obligation of Buyer, enforceable against Buyer in accordance
\nwith its terms, except as such enforceability may be limited by bankruptcy,
\ninsolvency, reorganization, moratorium and other similar laws and equitable
\nprinciples relating to or limiting creditors’ rights generally. The execution,
\ndelivery and performance of this Agreement by Buyer will not directly or
\nindirectly (a) contravene, conflict with, violate, or constitute a breach or
\ndefault (whether upon lapse of time and\/or the occurrence of any act or event or
\notherwise) under, the charter documents or by-laws of Buyer, (b) result in the
\nimposition of any Encumbrance against any material asset or property owned,
\nlicensed or leased by Buyer, or (c) contravene, conflict with or result in a
\nviolation of Law or Order to which Buyer <\/p>\n
23<\/p>\n
or any of the assets owned, licensed or leased by Buyer are subject, except, in
\neach of clauses (b) through (c), for such contraventions, conflicts, impositions
\nand violations which , individually or in the aggregate, do not have a material
\nadverse effect on Buyer’s ability to perform its obligations under this
\nAgreement. Schedule 3.2 lists, as of the date hereof, all material Approvals and
\n ————
\nPermits required to be obtained by Buyer to consummate the transactions
\ncontemplated by this Agreement, other than those which have already been
\nobtained. Except for the Approvals and Permits identified on Schedule 3.2 as
\n ————
\nrequiring that certain actions be taken by or with respect to a third party or
\nGovernmental Entity, the execution, delivery and performance of this Agreement
\nby Buyer will not require any material filing or registration with, or the
\nissuance of any material Approval or Permit by, any third party or Governmental
\nEntity.<\/p>\n
3.3 No Brokers or Finders. No agent, broker, finder or or
\n ———————
\ninvestment or commercial banker, or other Person or firms engaged by or acting
\non behalf of Buyer or its Affiliates in connection with the negotiation,
\nexecution or performance of this Agreement or the transactions contemplated by
\nthis Agreement, is or will be entitled to any broker’s or finder’s or similar
\nfees or other commissions as a result of this Agreement or such transactions,
\nexcept for Morgan Stanley Dean Witter (for their services provided on behalf of
\nBuyer), as to which Buyer shall have full responsibility and Seller shall not
\nhave any liability.<\/p>\n
3.4 Legal Proceedings. There is no Order or Action pending, or
\n —————–
\nto the knowledge of Buyer, threatened, against or affecting Buyer or any of its
\nproperties or assets that individually or when aggregated with one or more other
\nActions has or, if determined adversely to the interest of Buyer, might
\nreasonably be expected to have, a material adverse effect on Buyer’s ability to
\nperform its obligations under this Agreement.<\/p>\n
24<\/p>\n
3.5 WARN Act. Buyer is not planning or contemplating, and has
\n ——–
\nnot made or taken, any decisions or actions concerning Company or any Subsidiary
\nafter the Closing that would require the service of notice under the Worker
\nAdjustment and Retraining Act of 1988 (the “WARN Act”).<\/p>\n
3.6 Investment Representation. Buyer is acquiring the Stock from
\n ————————-
\nSeller for Buyer’s own account, for investment purposes only and not with a view
\nto, or for sale in connection with, any distribution thereof.<\/p>\n
3.7 Disclaimer of Representations and Warranties. Buyer
\n ——————————————–
\nacknowledges and agrees that the purchase and sale of the Stock hereunder shall
\nbe without representation or warranty by Seller, express or implied, except as
\nspecifically set forth in Article II.<\/p>\n
3.8 Financing Commitment. Buyer has received a commitment letter,
\n ——————–
\na copy of which has been delivered to Seller (the “Commitment Letter”), with
\nrespect to financing for the transactions contemplated by this Agreement in the
\nform of senior unsecured debt (the “Financing”). Buyer has no basis to believe
\nthat the financing contemplated thereby will not be available to Buyer in a time
\nsufficient to support a Closing by June 25, 1999, assuming satisfaction of all
\nother conditions to Closing by such date.<\/p>\n
ARTICLE IV<\/p>\n
COVENANTS WITH RESPECT TO CONDUCT OF COMPANY<\/p>\n
AND THE SUBSIDIARIES PRIOR TO CLOSING<\/p>\n
4.1 Access. Seller shall and shall cause Company and the
\n ——
\nSubsidiaries to authorize and permit Buyer, its prospective lenders and their
\nrespective representatives, <\/p>\n
25<\/p>\n
including their respective independent accountants, financial advisers, agents
\nand counsel (such entities being, with respect to either Buyer or Seller,
\ncollectively, “Representatives”) to have reasonable access during normal
\nbusiness hours, upon reasonable notice and in such manner as will not
\nunreasonably interfere with the conduct of their respective businesses, to all
\nof their respective properties, books, records, operating instructions and
\nprocedures and all other information with respect to the Business as Buyer may
\nfrom time to time request, and to make copies of such books, records and other
\ndocuments and to discuss the Business with the respective directors and officers
\nand, after consultation with Seller, and accompanied by or in coordination with
\nSeller, employees, accountants, counsel, suppliers, customers and creditors of,
\nCompany and Subsidiaries, in each case, as is reasonably necessary or
\nappropriate for the purposes of familiarizing themselves with the Business and
\nin connection with obtaining financing for and any necessary Approvals of or
\nPermits for the transactions contemplated by this Agreement; provided, however,
\n ——– ——-
\nthat under no circumstances shall Seller be required to provide to Buyer, its
\nprospective financing sources and their respective representatives access to (i)
\nTax Returns filed by Seller or any of its Affiliates other than Tax Returns
\nfiled by Company or any Subsidiary, (ii) any information or materials required
\nto be kept confidential pursuant to agreements with third parties or by Law, or
\n(iii) subject to entering into appropriate agreements that preserve the
\nprivilege, any privileged attorney-client communications or attorney work-
\nproduct of Company.<\/p>\n
4.2 Conduct of Business. During the period beginning on the date
\n ——————-
\nhereof and ending on the Closing Date, Seller shall not and shall cause Company
\nand each Subsidiary not to, without the prior written consent of Buyer (which
\nconsent shall not be unreasonably withheld):<\/p>\n
(a) conduct the Business in any manner except in the
\nordinary course;<\/p>\n
26<\/p>\n
(b) terminate, or fail to renew or preserve, any material
\nPermits;<\/p>\n
(c) make any loan, guaranty or other extension of credit, or
\nenter into any commitment to make any loan, guaranty or other extension of
\ncredit, to or for the benefit of any director, officer, employee, stockholder or
\nany of their respective Affiliates, except pursuant to the Company Plans;<\/p>\n
(d) amend any Company Plan or grant any general or uniform
\nincrease in the rates of pay or benefits to officers, directors or employees (or
\na class thereof), or any increase in salary or benefits of any officer, director
\nor employee or pay any bonus to any person, except for (i) any increase or bonus
\nmandated by any of the Company Plans, (ii) any normal increase or bonus in
\nconnection with a promotion not to exceed 10% of each such Person’s annual base
\npay, and (iii) annual merit salary increases in the ordinary course of business
\nnot to exceed 5.5% of the applicable base annual salaries on an aggregate basis;<\/p>\n
(e) sell, transfer, mortgage, encumber or otherwise dispose
\nof any assets or properties except dispositions of inventory in the ordinary
\ncourse of business consistent with past practices and other dispositions of
\nassets not to exceed $100,000 in the aggregate in the ordinary course of
\nbusiness consistent with past practices;<\/p>\n
(f) except pursuant to Company Options, issue, grant, sell,
\nredeem or acquire for value, or agree to issue, sell, redeem or acquire for
\nvalue or, except as provided in Section 1.2, amend or modify, any Equity
\nSecurities of Company or any of the Subsidiaries;<\/p>\n
(g) declare, issue, make or pay any dividend or other
\ndistribution of assets, whether consisting of money, other personal property,
\nreal property or other thing of value, to its <\/p>\n
27<\/p>\n
stockholders, or split, combine, dividend, distribute or reclassify any shares
\nof its Equity Securities, except in accordance with Section 5.12;<\/p>\n
(h) change or amend its certificate of incorporation or
\nbylaws;<\/p>\n
(i) amend the Intercompany Agreements;<\/p>\n
(j) terminate, amend or fail to use its commercially
\nreasonable efforts to renew any existing insurance coverage;<\/p>\n
(k) other than (i) in the ordinary course of business
\nconsistent with past practice, (ii) capital expenditures permitted under
\nparagraph (q) of this Section 4.2 and (iii) sales returns by, or price
\nallowances to, distributors or stocking representatives, voluntarily incur or
\nagree to incur any obligation or liability (absolute or contingent) that
\nindividually calls for payment by Company or any Subsidiary of more than $75,000
\nin any specific case or $350,000 in the aggregate;<\/p>\n
(l) issue, sell, redeem or acquire for value, or agree to do
\nso, any debt obligations (other than advances to or from Seller) or Equity
\nSecurities of Company or any Subsidiary;<\/p>\n
(m) compromise or otherwise settle or waive any claims in
\nrespect of Intellectual Property or for non-monetary consideration or for
\npayment of monetary consideration in excess of $50,000 individually or $250,000
\nin the aggregate;<\/p>\n
(n) make any material investment, by purchase, contributions
\nto capital, property transfers, or otherwise, in any other Person;<\/p>\n
28<\/p>\n
(o) other than as expressly provided herein, make any Tax
\nelection or make any change in any method or period of accounting or in any
\naccounting policy, practice or procedure;<\/p>\n
(p) dispose of or fail to preserve any material Intellectual
\nProperty, trade secrets or any rights to the use thereof;<\/p>\n
(q) make any capital expenditures or commitments with respect
\nthereto (i) in excess of $3,000,000 in the aggregate in accordance with the
\naggregate annual budget for 1999 as of the date hereof (subject to variances of
\nup to 10% for any discrete budgeted item, without increasing the $3,000,000
\naggregate limit); or (ii) in excess of $250,000 with respect to individual items
\nof equipment or individual systems; or<\/p>\n
(r) agree to or make any commitment to take any actions
\nprohibited by this Section 4.2.<\/p>\n
4.3 Permits and Approvals. Seller shall use its best efforts to
\n ———————
\nobtain, and will promptly prepare all registrations, filings and applications,
\nrequests and notices in order to obtain, all Approvals and Permits required on
\nits part to consummate the transaction contemplated by this Agreement and to
\npermit Buyer to operate the Business without loss of any material rights. Buyer
\nshall use its best efforts to obtain, and will promptly prepare all
\nregistrations, filings and applications, requests and notices in order to
\nobtain, all Approvals and Permits required on its part to consummate the
\ntransactions contemplated by this Agreement. Each party shall pay their
\nrespective costs or expenses incurred in order to obtain such Approvals. Fees
\npaid or expenses incurred in connection with any and all filings or proceedings<\/p>\n
29<\/p>\n
required under the Hart-Scott-Rodino Act and any other Law requiring filings
\nwith any Governmental Entity shall be addressed under Section 4.4.<\/p>\n
4.4 Government Filings. Buyer and Seller shall promptly make any
\n ——————
\nand all filings required under the Hart-Scott-Rodino Act and any other Law
\nrequiring filings with any Governmental Entity with respect to the transactions
\ncontemplated hereby. Buyer and Seller agree to use their best efforts to obtain
\nall approvals required under the Hart-Scott-Rodino Act to consummate the
\ntransactions contemplated by this Agreement. Subject to such confidentiality
\nrestrictions as may be reasonably requested, Seller and Buyer shall furnish each
\nother such necessary information and reasonable assistance as the other may
\nreasonably request in connection with its preparation of necessary filings or
\nsubmissions under the provisions of such Laws. Seller and Buyer will immediately
\nsupply to each other copies of all correspondence, filings or communications, by
\nsuch party or its Affiliates with any Governmental Entity or members of its
\nstaff, with respect to the transactions contemplated by this Agreement and any
\nrelated or contemplated or inconsistent transactions, except for documents filed
\npursuant to Item 4(c) of the Hart-Scott Rodino Notification and Report Form or
\ncommunications regarding the same. Buyer and Seller shall each pay their
\nrespective costs and expenses incurred under this Section 4.4, except for the
\n$45,000 initial filing fee under the Hart-Scott-Rodino Act with respect to the
\ntransactions contemplated by this Agreement, which shall be borne entirely by
\nBuyer.<\/p>\n
4.5 Preservation of Business Prior to Closing Date. During the
\n ———————————————-
\nperiod beginning on the date hereof and ending on the Closing Date, (a) Seller
\nwill and will cause Company to use its commercially reasonable efforts to
\npreserve the Business and to preserve the goodwill of customers, suppliers and
\nothers having business relations with Company or the Subsidiaries, and (b)
\nSeller and Buyer will consult with each other concerning, and Seller will <\/p>\n
30<\/p>\n
use commercially reasonable efforts and will cooperate with Buyer in connection
\nwith Buyer’s efforts to keep, the services of the officers and employees of
\nCompany and the Subsidiaries that Buyer may wish to have Company and the
\nSubsidiaries retain. Nothing in this Section 4.5 shall obligate Buyer, Company
\nor any Subsidiary after the Closing to retain or offer employment to any officer
\nor employee of Company or any Subsidiary.<\/p>\n
4.6 Exclusivity. Prior to the Closing, Seller will not, and will
\n ———–
\ncause its controlled Affiliates and Company and any of the directors, officers,
\nemployees, representatives or agents of Seller, Company or any of their
\ncontrolled Affiliates (collectively, the “Seller’s Representatives”) not to,
\ndirectly or indirectly, (a) discuss, negotiate, undertake, authorize, recommend,
\npropose or enter into, either as the proposed surviving, merged, acquiring or
\nacquired corporation, any transaction involving a merger, consolidation,
\nbusiness combination, purchase or disposition of any amount of the assets or
\ncapital stock or other equity interest in Company or any of the Subsidiaries
\nother than the transactions contemplated by this Agreement (an “Acquisition
\nTransaction”), (b) facilitate, encourage, solicit or initiate discussions,
\nnegotiations or submissions of proposals or offers in respect of an Acquisition
\nTransaction, (c) furnish or cause to be furnished, to any Person, any
\ninformation concerning the business operations, properties or assets of Company
\nor any of the Subsidiaries in connection with an Acquisition Transaction, or (d)
\notherwise cooperate in any way with, or assist or participate in, facilitate or
\nencourage, any effort or attempt by any other Person to do or seek any of the
\nforegoing. Seller will inform Buyer in writing immediately following the
\nreceipt by Seller, Company or any of Seller’s Representatives of any proposal or
\ninquiry in respect of any Acquisition Transaction.<\/p>\n
31<\/p>\n
4.7 International Patents. Seller shall deliver to Buyer within
\n ———————
\nthree days prior to the Closing Date an amendment to Schedule 2.8(b)(i) listing
\n ——————
\nall international patents, including applications therefor, which are related
\nto the United States patents, including applications therefor, as set forth on
\nSchedule 2.8(b)(i) as of the date of this Agreement.
\n—————— <\/p>\n
4.8 Company Stock Option Plans. Prior to the Closing, the
\n ————————–
\nappropriate committee of the Board of Directors of the Company (the “Board”), in
\naccordance with Section 6.2.1 of the Company Stock Option Plans, shall (i) adopt
\nresolutions (A) approving the Exchange Ratio as described in Section 1.2 of this
\nAgreement, and (B) providing that all outstanding Company Options shall be
\nautomatically assumed by Buyer at Closing in accordance with the terms in
\nSection 1.2 of this Agreement and (ii) take all other actions necessary to
\nimplement the terms of Section 1.2 of this Agreement. In addition, Seller and
\nthe Company shall not make any amendments or other changes to the Company Stock
\nOption Plans or to the Company Options except as required by Law or this Section
\nand Section 1.2 of this Agreement.<\/p>\n
ARTICLE V<\/p>\n
ADDITIONAL CONTINUING COVENANTS<\/p>\n
5.1 Seller’s Post-Closing Access.
\n —————————-
\n (a) Subject to Section 11.5(d) hereof (relating to the
\npreservation of Tax records), Seller and Buyer agree that each of them shall
\npreserve and keep the records held by it, their subsidiaries or their controlled
\nAffiliates relating to the business of Company and the Subsidiaries for a period
\nof three years from the Closing Date and shall make such records and personnel
\navailable to the other as may be reasonably required by such party, including
\nwithout limitation in connection with, among other things, any insurance claims
\nby, legal proceedings<\/p>\n
32<\/p>\n
against or governmental investigations of Seller or Buyer or any of their
\nAffiliates or in order to enable Seller or Buyer to comply with their respective
\nobligations under this Agreement and each other agreement, document or
\ninstrument contemplated hereby subject to restrictions on disclosure of such
\ninformation under applicable Laws, agreements with third parties, and, subject
\nto entering into appropriate agreements that preserve attorney-client privilege,
\nattorney-client privilege. In the event Seller or Buyer wishes to destroy such
\nrecords after that time, such party shall first give ninety days’ prior written
\nnotice to the other party and such other party shall have the right at its
\noption and expense, upon prior written notice given to such party within that
\nninety day period, to take possession of the records within one hundred and
\neighty days after the date of such notice. Any information obtained pursuant to
\nthis Section 5.1 or pursuant to any other section hereof (including Section
\n11.5(d)) providing for the sharing of information or the review of any Tax
\nReturn or other schedule relating to Taxes shall be subject to Section 12.2.<\/p>\n
5.2 No Rights to Seller Intellectual Property. Except as provided
\n —————————————–
\nherein or in the Continuing Intercompany Agreements, Buyer acknowledges and
\nagrees that Company and the Subsidiaries shall not have, and Buyer shall not
\nacquire pursuant to this Agreement, any rights of ownership or use whatsoever
\nwith respect to any Mark of any kind that is owned by Seller or any Affiliate of
\nSeller other than Company or any Subsidiary, including, but not limited to, the
\nnames and Marks “Advanced Micro Devices, Inc.,” “AMD,” “an AMD Company,” and any
\nderivatives thereof. Buyer agrees that, effective as of the Closing, it shall
\ncause Company and the Subsidiaries to promptly cease and desist from any use of
\nany such names or Marks in connection with any advertising, marketing, or
\nsolicitation efforts, and not later than 120 days after the Closing Date, to
\ncease and desist from any other use of any such name or Mark.<\/p>\n
33<\/p>\n
5.3 Insurance; Indemnity Obligations.
\n ——————————–
\n (a) Seller shall maintain in effect, with respect to Company
\nand the Subsidiaries, until 12:00 a.m. on the date following the Closing Date
\nall casualty and liability insurance policies listed on Schedule 2.11 (or
\n ————-
\ncomparable replacement policies). Effective at 12:01 a.m. on the date following
\nthe Closing Date, all insurance coverage maintained by Seller under which
\nCompany and the Subsidiaries are insured, including any and all bonds or other
\nindemnity obligations (excluding any of the same set forth on Schedule 5.5),
\n ————
\nshall be cancelled and terminated (except to the extent that they may not, by
\ntheir terms, be so cancelled or terminated). Company and the Subsidiaries shall
\nbe responsible for any deductibles or retentions in connection with any such
\ninsurance. All premium refunds paid to Seller relating to insurance covering
\nCompany and the Subsidiaries shall be the property of Seller, regardless of
\nwhether such refunds are paid on, before or after the Closing Date.<\/p>\n
(b) Company and the Subsidiaries shall continue to be entitled
\nto such claims or rights to receive any insurance proceeds under pre-Closing
\ninsurance covering Company and the Subsidiaries as Seller may have, whether such
\ncoverage is or was maintained on an “occurrence” basis or a “claims-made” basis.
\nFrom and after the Closing Date, Seller and Buyer shall cooperate in connection
\nwith the adjustment and administration of claims under all such insurance
\ncoverage. Buyer, Company and the Subsidiaries shall be responsible for any
\ndeductible, retention or other charge provided for by the terms of any such
\ncoverage.<\/p>\n
(c) Buyer and Seller shall use all reasonable efforts to ensure
\nthat no certificates of insurance indicating coverage under Seller (or by reason
\nof being a subsidiary or Affiliate of Seller) shall be issued after the Closing
\nDate and that all such insurance certificates<\/p>\n
34<\/p>\n
which are outstanding as of the Closing Date are promptly returned to Seller. In
\nthe event that Seller is unable to notify the holder of a certificate of
\ninsurance indicating such coverage of the termination of coverage as of the
\nClosing Date, or Seller is unable to cancel or terminate any such coverage as of
\nthe Closing Date, and Seller or its insurer thereafter receives a claim or
\npurported claim under any such coverage, Buyer shall have no right to recover
\nany amounts in respect thereof from Seller or its insurers and be responsible
\nfor all Losses incurred by Seller or its insurers in respect of the same.<\/p>\n
5.4 WARN Act. Buyer agrees that it will not take any action which
\n ——–
\ncauses the notice provisions of the WARN Act to be applicable to Seller or,
\nprior to the Closing, Company or any Subsidiary in connection with the
\ntransactions contemplated by this Agreement.<\/p>\n
5.5 Intercompany Agreements. Buyer agrees to perform or cause
\n ———————–
\nCompany to perform the obligations of Company under the Continuing Intercompany
\nAgreements. Except with respect to the Continuing Intercompany Agreements, Buyer
\nand Seller acknowledge and agree that all Intercompany Agreements shall be
\nterminated as of the Closing Date.<\/p>\n
5.6 Expenses of Sale. To the extent and only to the extent paid
\n —————-
\nprior to the Closing or accrued on the Closing Balance Sheet, Company shall be
\nresponsible for the following extraordinary out-of-pocket expenses actually
\nincurred by Company and the Subsidiaries in connection with the sale of the
\nStock hereunder: (a) pre-Closing fees, expenses and disbursements of legal
\ncounsel, accountants, consultants and other advisors, (b) pre-Closing expenses
\nrelating to arrangements for due diligence investigations of Company, the
\nSubsidiaries and the Business by prospective buyers, including, but not limited
\nto, expenses to secure premises, equipment, personnel and other services, and
\n(c) the other sale expenses set forth on<\/p>\n
35<\/p>\n
Schedule 5.6. Upon request, Seller shall reimburse Buyer for any such expenses
\n————
\nnot paid prior to the Closing or accrued on the Closing Balance Sheet.<\/p>\n
5.7 Intercompany Balances. Except for any amounts due and owing
\n ———————
\nunder the terms of any Company Plan (a) immediately prior to the Closing,
\nCompany and the Subsidiaries shall pay any amounts accrued and payable to Seller
\nor any Affiliate of Seller (other than amounts incurred in contravention of
\nSection 4.2), including, but not limited to, any declared but unpaid dividends
\nor other distributions permitted by Section 5.12 and amounts accrued under the
\nIntercompany Agreements, and (b) Seller or any Affiliate of Seller shall pay any
\namounts accrued and payable to Company or any Subsidiary, including, but not
\nlimited to, amounts accrued under the Intercompany Agreements.<\/p>\n
5.8 Facilities. Seller shall take all reasonable efforts to effect
\n ———-
\nthe assignment to Buyer of the real property leases set forth on Schedule 5.8
\n ————
\nand, subject to such assignment, Buyer shall assume all obligations of Seller
\nunder such leases as of the Closing Date.<\/p>\n
5.9 Nondisclosure of Proprietary Data. Subject to applicable law,
\n ———————————
\nneither Seller nor its controlled Affiliates shall, at any time, make use of,
\ndivulge or otherwise disclose, directly or indirectly, any trade secret or other
\nsimilar proprietary data (including, but not limited to, any customer list,
\nrecord or financial information) concerning the Business or policies of Company
\nand the Subsidiaries. Seller shall further protect such information by applying
\nthe same standards and procedures of confidentiality which it applies generally
\nto its own trade secret or other similar proprietary data.<\/p>\n
5.10 Nonsolicitation. During the period beginning on the date of
\n —————
\nthis Agreement and ending three years after the Closing Date, neither Seller, on
\nthe one hand, nor <\/p>\n
36<\/p>\n
Buyer, on the other hand (nor any of their respective controlled Affiliates),
\nwill, without the other’s prior consent (which consent may be withheld in the
\nother’s sole discretion), directly or indirectly, solicit for employment, in the
\ncase of Seller, any employee of Buyer, Company or any of their subsidiaries, and
\nin the case of Buyer, any employee of Seller or any of its subsidiaries. For
\npurposes of this Section 5.10, the term “solicit” shall be deemed not to include
\nadvertisements or other generalized employment searches, including
\nadvertisements in any media (including trade media) or any job postings system
\nnot specifically directed to a particular employee. Seller and Buyer recognize
\nand agree that a breach of their respective covenants set forth in this Section
\n5.10 could cause irreparable harm to the other, that remedies at law in the
\nevent of such breach would be inadequate, and that accordingly, in the event of
\nsuch breach, a restraining order or injunction or both may be issued against it,
\nin addition to any other rights and remedies which are available. If this
\nSection 5.10 is more restrictive than permitted by the Laws of any jurisdiction
\nin which enforcement is sought, this Section 5.10 shall be limited to the extent
\nrequired to permit enforcement under such Laws.<\/p>\n
5.11 Noncompetition.
\n ————–
\n (a) Seller agrees that, for the period from the Closing to the
\ndate which is the fifth anniversary of the Closing Date, neither Seller nor any
\nof Seller’s controlled Affiliates will, directly or indirectly, for its own
\nbenefit or as agent of another, carry on or own, manage or operate, participate
\nin, or control the management or operation of, or allow its name to be used in,
\nthe Device Business (i) in the County of Santa Clara, (ii) in the State of
\nCalifornia, (iii) in the State of Oregon and (iv) in the United States of
\nAmerica. For purposes of this Section 5.11, the “Device Business” shall mean the
\ndesign, marketing or sale of (or the investment in or acquisition of any
\nmanufacturer of) any “stand alone” integrated circuit comprising (i) a general<\/p>\n
37<\/p>\n
purpose array of logic gates (whether AND arrays or OR arrays) which can be
\ninterconnected by programming a matrix of interconnect lines between the logic
\ngates, including any accompanying circuitry to provide I\/O buffer control and
\nprotection, programming control and data path, embedded memory and other
\nembedded subsidiary circuitry, timing control and distribution clocking, voltage
\ncontrol and regulation, and chip protection functions (a “Programmable Logic
\nDevice”) or (ii) a general purpose array of logic blocks built from basic logic
\ngates or LUTs (Look Up Tables) which can be interconnected by programming a
\nmatrix of interconnect lines between the logic blocks, including any
\naccompanying circuitry to provide I\/O buffer control and protection, programming
\ncontrol and data path, embedded memory and other embedded subsidiary circuitry,
\ntiming control and distribution clocking, voltage control and regulation, and
\nchip protection functions (a “Field Programmable Gate Array”).<\/p>\n
The Device Business shall not include the manufacture, design,
\nmarketing or sale of any Programmable Logic Device or Field Programmable Gate
\nArray that is combined on an integrated circuit with other devices (including
\nwithout limitation flash memory, microprocessors, microprocessors with or for
\nembedded applications, or other functions of integrated circuitry) or is
\notherwise not a single purpose, “stand alone” integrated circuit that
\nconstitutes or is otherwise not marketed as a Programmable Logic Device or Field
\nProgrammable Gate Array.<\/p>\n
(b) Nothing contained herein shall (i) limit Seller (A) from
\nacquiring (including through a merger) or investing in any business, development
\narrangement or joint venture whose primary business activities do not constitute
\na Device Business, or (B) from, directly or indirectly, holding or making
\ninvestments in securities of any business listed on a national securities
\nexchange, admitted to trading in an automated quotations market, or traded<\/p>\n
38<\/p>\n
generally on the over-the-counter market, so long as Seller’s direct or indirect
\nholdings do not exceed 5% of the outstanding Equity Securities thereof, or (ii)
\napply to any Person who acquires, directly or indirectly, the Equity Securities
\nof, or control of, Seller or to the activities of any Person merging with or
\ninto Seller as conducted prior to such merger by any Person merging with or into
\nSeller.<\/p>\n
(c) Seller recognizes and agrees that compliance with the
\ncovenant contained in this Section 5.11 is necessary to protect Buyer, Company
\nand the Subsidiaries and that a breach by Seller of any of the covenants set
\nforth in this Section 5.11 could cause irreparable harm to Buyer, that Buyer’s
\nremedies at law in the event of such breach would be inadequate, and that,
\naccordingly, in the event of such breach, a restraining order or injunction or
\nboth may be issued against Seller, in addition to any other rights and remedies
\nwhich are available to Buyer. If this Section 5.11 is more restrictive than
\npermitted by the Laws of any jurisdiction in which Buyer seeks enforcement
\nhereof, this Section 5.11 shall be limited to the extent required to permit
\nenforcement under such Laws. In particular, the parties intend that the
\ncovenants contained in the preceding portions of this Section 5.11 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 5.11, 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<\/p>\n
39<\/p>\n
party upon such shorter term or within such lesser scope as may be determined by
\nsuch court to be reasonable and enforceable.<\/p>\n
5.12 Dividends. At any time prior to the Closing, Company may pay
\n ———
\ncash dividends to its stockholders of record. In no event, however, will such
\ndividends paid from the date hereof to the Closing exceed, in the aggregate, $60
\nmillion.<\/p>\n
5.13 Access for Environmental Review. Prior to the Closing, Buyer
\n ——————————-
\nand its consultants and other representatives shall have access to all of
\nSeller’s and Company’s records of environmental inspections and tests and soil
\nand groundwater samples, in each instance relating to the Historic Company
\nBusiness Facilities.<\/p>\n
5.14 Contract Rights. If any necessary Approval of a third party
\n —————
\nwith respect to a contract that is used in the conduct of the Business is not
\nobtained prior to the Closing, or as a result of the failure to have obtained
\nany such Approval Buyer would not, at the Closing, receive substantially all
\nrights under any such Contract, (a) Seller shall continue to use its best
\nefforts to obtain such Approval from and after the Closing, and (b) Seller and
\nCompany shall cooperate in a mutually agreeable arrangement under which Company
\nor the Subsidiaries obtain or retain the benefits and assume the obligations
\nunder such Contract, including subcontracting, sub-licensing or sub-leasing to
\nCompany or the Subsidiaries, or under which Seller would enforce for the benefit
\nof Company and the Subsidiaries any and all rights of Seller against a third
\nparty thereto, provided that Seller shall not be required to incur any out-of-
\n ——–
\npocket expenses in connection with the same, unless and to the extent advanced
\nby Buyer.<\/p>\n
5.15 Patents. As provided in Section 2.8(b), Schedule 2.8(b) sets
\n ——- —————
\nforth a list of all patents and patent applications that are owned by Company
\nor will be owned by Company as <\/p>\n
40<\/p>\n
of the Closing. To the extent any patents or patent applications on such
\nSchedule have not been assigned to Company as of the date hereof, Seller shall
\nassign such patents or patent applications (together with any associated past
\nunrecovered damages claims and future damages claims), as the case may be, to
\nCompany prior to the Closing. Seller agrees that, during the six (6) month
\nperiod following the date hereof, Seller will discuss with Buyer in good faith
\nwhether any patent or patent application not on Schedule 2.8(b) should
\n —————
\nreasonably be added thereto and, if Seller and Buyer agree that a patent or
\npatent application should reasonably be added thereto, Seller shall promptly
\nassign such patent or patent application (together with any associated past
\nunrecovered damages claims and future damages claims) to Company.<\/p>\n
5.16 Transfer of Certain Business-Related Assets.
\n ——————————————- <\/p>\n
(a) This Section 5.16 does not apply to Intellectual Property
\nor trade secrets.<\/p>\n
(b) Seller shall use commercially reasonable efforts to assign
\nand transfer or cause to be assigned and transferred to Company prior to Closing
\n(i) all of the assets, properties and rights contemplated to be transferred to
\nCompany by the resolutions adopted by Seller’s board of directors at its
\nDecember 1997 meeting, (ii) the assets, properties and rights of Seller and its
\ncontrolled Affiliates (including contract rights and intangible assets,
\nproperties and rights) predominantly related to the Business, and (iii) the
\nassets, properties and rights of Seller and its controlled Affiliates currently
\ntreated by the Company as a part of the Business (collectively, the “Other
\nBusiness Assets”).<\/p>\n
41<\/p>\n
(c) To the extent any Other Business Assets have not been
\nassigned and transferred prior to Closing, Seller shall take such additional
\ncommercially reasonable actions after the Closing to effect such assignments and
\ntransfers as are reasonably requested by Buyer.<\/p>\n
(d) The assignments and transfers pursuant to this Section 5.16
\nshall be at no cost to Buyer, Company or their respective subsidiaries and
\nAffiliates.<\/p>\n
ARTICLE VI<\/p>\n
GENERAL CONDITIONS OF PURCHASE<\/p>\n
The obligations of the parties to effect the Closing shall be subject
\nto the following conditions unless waived in writing by each of the parties
\nhereto:<\/p>\n
6.1 No Orders; Legal Proceedings. No Law or Order shall have been
\n —————————-
\nenacted, entered, issued, promulgated or enforced by any Governmental Entity,
\nnor shall any Action have been instituted and remain pending by any Governmental
\nEntity at what would otherwise be the Closing Date, which prohibits or restricts
\nor would (if successful) prohibit or restrict the sale and purchase of Stock
\ncontemplated by this Agreement.<\/p>\n
6.2 Approvals. To the extent required by applicable Law, all
\n ———
\nmaterial Permits and Approvals required to be obtained from any Governmental
\nEntity in connection with consummation of the transactions contemplated by this
\nAgreement shall have been received or obtained on or prior to the Closing Date,
\nwithout the imposition of any burdensome conditions materially adverse to the
\nparty entitled to the benefit thereof, and any applicable waiting period under
\nthe Hart-Scott-Rodino Act shall have expired or been terminated and any
\napplicable merger notification requirements under statutes of foreign
\nGovernmental Entities shall have been <\/p>\n
42<\/p>\n
complied with, except to the extent that noncompliance with any such foreign
\nmerger notification statute is not reasonably likely to have a material adverse
\nimpact on the transactions contemplated by this Agreement.<\/p>\n
ARTICLE VII<\/p>\n
CONDITIONS TO OBLIGATIONS OF BUYER<\/p>\n
The obligations of Buyer to effect the Closing shall be subject to the
\nfollowing conditions, except to the extent waived in writing by Buyer:<\/p>\n
7.1 Representations and Warranties and Covenants of Seller. The
\n ——————————————————
\nrepresentations and warranties of Seller herein contained shall be true in all
\nmaterial respects (provided, however, that where a representation or warranty is
\n ——– ——-
\nalready qualified as to materiality, such representation or warranty shall be
\ntrue in all respects) at the Closing Date with the same effect as though made at
\nsuch time, Seller shall have performed all obligations and complied with all
\ncovenants and conditions required by this Agreement to be performed, or complied
\nwith by it (except in immaterial respects), on or prior to the Closing Date, and
\nSeller shall have delivered to Buyer a certificate of Seller (“Seller’s Closing
\nCertificate”) dated as of the Closing Date and signed by its president to such
\neffect. The representations and warranties made by Seller in Seller’s Closing
\nCertificate shall constitute, upon execution and delivery thereof,
\nrepresentations and warranties of Seller for all purposes of this Agreement
\nincluding Article II hereof.<\/p>\n
7.2 Resignation of Directors. The directors of Company and the
\n ————————
\nSubsidiaries shall have submitted their respective resignations in writing to
\nCompany and the Subsidiaries, as applicable. Such resignations shall be
\neffective as of the Closing.<\/p>\n
43<\/p>\n
7.3 Continuing Intercompany Agreements. The Continuing Intercompany
\n ———————————-
\nAgreements shall be in the amended forms executed on the date hereof and as
\nattached to the letter agreement dated as of the date of this Agreement by and
\nbetween Seller and Buyer and shall be in full force and effect.<\/p>\n
7.4 Amended Schedules. The additions to the Schedules, as reflected
\n —————–
\nin the amendment delivered to Buyer pursuant to Section 2.22 shall not have
\nindicated any change in, or the occurrence of an event affecting, Company or any
\nof the Subsidiaries that, individually or in the aggregate, has or would have a
\nmaterial adverse effect on the Business (other than matters of general
\napplicability to Company’s industry.<\/p>\n
7.5 Financing. (x) There shall not have occurred a material
\n ———
\nadverse change or disruption in the loan syndication or capital markets after
\nthe date of this Agreement which results in (i) termination of the Commitment
\nLetter (including any extension thereof), (ii) Buyer being unable to extend the
\nCommitment Letter beyond its scheduled expiration on terms not significantly
\nworse than those contemplated by the Commitment Letter or (iii) Buyer otherwise
\nbeing unable to consummate the Financing and (y) Buyer, despite commercially
\nreasonable efforts, is unable to obtain alternate financing (on terms not
\nsignificantly worse than those set forth in the Commitment Letter) sufficient,
\nwith Buyer’s available cash, to pay the Purchase Price.<\/p>\n
ARTICLE VIII<\/p>\n
CONDITIONS TO OBLIGATIONS OF SELLER<\/p>\n
The obligations of Seller to effect the Closing shall be subject to
\nthe following conditions, except to the extent waived in writing by Seller:<\/p>\n
44<\/p>\n
8.1 Representations and Warranties and Covenants of Buyer. The
\n —————————————————–
\nrepresentations and warranties of Buyer herein contained shall be true in all
\nmaterial respects (provided, however, that where a representation or warranty is
\n ——– ——-
\nalready qualified as to materiality, such representation or warranty shall be
\ntrue in all respects) at the Closing Date with the same effect as though made at
\nsuch time, Buyer shall have performed all obligations and complied with all
\ncovenants and conditions required by this Agreement to be performed, or complied
\nwith by it (except in immaterial respects), on or prior to the Closing Date, and
\nBuyer shall have delivered to Seller a certificate of Buyer (“Buyer’s Closing
\nCertificate”) dated as of the Closing Date and signed by its president to such
\neffect. The representations and warranties made by Buyer in Buyer’s Closing
\nCertificate shall constitute, upon execution and delivery thereof,
\nrepresentations and warranties of Buyer for all purposes of this Agreement
\nincluding Article III hereof.<\/p>\n
ARTICLE IX<\/p>\n
TERMINATION OF OBLIGATIONS; SURVIVAL<\/p>\n
9.1 Termination of Agreement. Anything herein to the contrary
\n ————————
\nnotwithstanding, this Agreement and the transactions contemplated by this
\nAgreement shall automatically terminate, without any notice, demand or action by
\neither party, if the Closing does not occur on or before the close of business
\non August 31, 1999 unless extended by mutual, written consent of Buyer and
\nSeller and otherwise may be terminated at any time before the Closing as follows
\nand in no other manner:<\/p>\n
(a) Mutual Consent. By mutual written consent of Buyer and
\n ————–
\nSeller.<\/p>\n
45<\/p>\n
(b) Conditions to Buyer’s Performance Not Met. By Buyer by
\n —————————————–
\nwritten notice to Seller if any event occurs or condition exists which would
\nrender impossible the satisfaction of one or more conditions to the obligations
\nof Buyer to consummate the transactions contemplated by this Agreement as set
\nforth in Articles VI or VII.written notice to<\/p>\n
(c) Conditions to Seller’s Performance Not Met. By Seller by
\n ——————————————
\nwritten notice to Buyer if any event occurs or condition exists which would
\nrender impossible the satisfaction of one or more conditions to the obligation
\nof Seller to consummate the transactions contemplated by this Agreement as set
\nforth in Articles VI or VIII.<\/p>\n
(d) Material Breach. By Buyer or Seller if there has been a
\n —————
\nmaterial misrepresentation or other material breach by the other party in its
\nrepresentations, warranties and covenants set forth herein; provided, however,
\n ——– ——-
\nthat the breaching party shall have 20 business days after receipt of notice
\nfrom the other party of its intention to terminate this Agreement if such breach
\ncontinues, in which to cure such breach.<\/p>\n
9.2 Effect of Termination. In the event that this Agreement shall be
\n ———————
\nterminated pursuant to Section 9.1, all further obligations of the parties under
\nthis Agreement shall terminate; provided that the obligations of the parties
\n ——–
\ncontained in Sections 12.2, 14.12, 14.13 and 14.16 shall survive any such
\ntermination, and that a termination under Section 9.1 shall not relieve either
\nparty of any liability for a breach of, or for any misrepresentation under, this
\nAgreement, or be deemed to constitute a waiver of any available remedy
\n(including specific performance if available) for any such breach or
\nmisrepresentation.<\/p>\n
9.3 Survival of Representations and Warranties. The representations
\n ——————————————
\nand warranties contained in Article II and Article III of this Agreement
\n(including the representations <\/p>\n
46<\/p>\n
and warranties made in Seller’s Closing Certificate and Buyer’s Closing
\nCertificate) shall expire 18 months after the Closing Date, except that (i) the
\nrepresentations and warranties contained in Section 2.4 shall continue through
\nthe expiration of the applicable statute of limitations as the same may be
\nextended; and (ii) if a claim or notice is given under Article X with respect to
\nany representation or warranty prior to the applicable expiration date, such
\nclaim shall continue indefinitely until it is finally resolved.<\/p>\n
9.4 Notice of Known Unsatisfied Conditions or Breached
\n —————————————————
\nRepresentations, Warranties or Covenants. Prior to the Closing, each of Buyer
\n—————————————-
\nand Seller agrees to promptly inform the other party of any failure to be
\nsatisfied of any condition in its favor or the breach of any representation,
\nwarranty or covenant by the other of which such party becomes aware.<\/p>\n
ARTICLE X<\/p>\n
INDEMNIFICATION<\/p>\n
10.1 Obligations of Seller. Subject to the provisions of Section
\n ———————
\n10.4, from and after the Closing, Seller agrees to indemnify Buyer, Company and
\neach Subsidiary, and their respective directors, officers, employees,
\nAffiliates, agents and assigns for, and save and hold harmless each from and
\nagainst, any and all Losses, directly or indirectly, as a result of, arising
\nfrom, incurred in connection with, or incident to:<\/p>\n
(a) any inaccuracy in or breach of any of the representations
\nand warranties made by Seller in or pursuant to this Agreement (other than any
\nset forth in Section 2.4);<\/p>\n
47<\/p>\n
(b) any breach or nonperformance of any covenants or
\nagreements made by Seller in or pursuant to this Agreement;<\/p>\n
(c) any breach of Law under ERISA or the Code in connection
\nwith, any employee benefit plan or arrangement maintained, sponsored,
\ncontributed to or administered by Seller or its ERISA Affiliates other than
\nunder, as a result of, or based upon or arising from, the Company Plans;<\/p>\n
(d) Seller’s Retained Environmental Liabilities;<\/p>\n
(e) claims asserted against Company in connection with matters
\nlisted on Schedule 2.3(b) Item 2; in respect of invoices in an approximate
\n ———————-
\naggregate amount of $750,000; and<\/p>\n
(f) any claim that additional royalties are payable under
\nBuyer’s license described in the letter of even date herewith, as a result of
\nBuyer’s acquisition of the Business provided that such Losses exceed $75,000.
\n ——–<\/p>\n
Notwithstanding the foregoing, in the case of any Losses described in
\n(a), (b) or (c) above, liabilities specifically identified and accrued or
\nreserved in the Closing Balance Sheet shall not be indemnified under this
\nSection 10.1 to the extent so accrued or reserved. Except as provided in this
\nSection 10.1, Buyer releases Seller from any liability to Buyer arising out of
\nany Environmental Claim in connection with the conduct of the Business or the
\nuse of the Historic Company Business Facilities by Seller, Company or any of
\ntheir respective Subsidiaries.<\/p>\n
10.2 Obligations of Buyer. Subject to the provisions of Section
\n ——————–
\n10.4, from and after the Closing, Buyer agrees to indemnify, Seller and its
\ndirectors, officers, employees,<\/p>\n
48<\/p>\n
Affiliates, agents and assigns for, and save and hold harmless each, from and
\nagainst any Losses, directly or indirectly, as a result of or arising from,
\nincurred in connection with, or incident to:<\/p>\n
(a) any inaccuracy in or breach of any of the representations
\nand warranties made by Buyer in or pursuant to this Agreement;<\/p>\n
(b) any breach or nonperformance of any covenants or agreements
\nmade by Buyer in or pursuant to this Agreement;<\/p>\n
(c) Buyer’s Environmental Liabilities; and<\/p>\n
(d) if such lease is assigned to Company, any claims against
\nSeller under the Sunnyvale Technology Park Lease between Stewart Drive LLC and
\nSeller dated September 17, 1997 (other than any consent fee or other one
\ntime payment incurred directly as a result of the assignment of such lease to
\nthe Company or the transactions contemplated by this Agreement) (until such
\ntime as Seller shall have been forever released from all liability by the
\nlessor thereunder with respect to events occurring after the Closing Date).<\/p>\n
Except as provided in this Section 10.2, Seller releases Buyer from
\nany liability to Seller arising out of any Environmental Claim in connection
\nwith the conduct of the Business or the use of the Historic Company Business
\nFacilities by Buyer, Company or any of their respective Subsidiaries.<\/p>\n
10.3 Procedure.
\n ———
\n (a) Notice. Any party seeking indemnification of any Loss or
\n ——
\npotential Loss arising from a claim asserted by a third party shall give
\nwritten notice (a “Claim Notice”) to the party from whom indemnification is
\nsought. Written notice to the Indemnifying Party of the <\/p>\n
49<\/p>\n
existence of such third-party claim shall be given by the Indemnified Party
\nwithin the later of (i) 30 days after its receipt of a written assertion of
\nliability from the third party or (ii) upon Indemnified Party’s determination
\nto seek indemnification for such claim from the Indemnifying Party (but in any
\nevent within 30 days of Indemnified Party’s receipt of notice of the intended
\ncommencement of an Action or investigation in respect of such claim). Neither
\nthe failure of the Indemnified Party to provide notice of any such third party
\nclaim to the Indemnifying Party within the 30 days contemplated by clause (i)
\nof the preceding sentence nor the failure of the Indemnified Party to provide
\nnotice of any such claim in accordance with clause (ii) of the preceding
\nsentence shall affect the Indemnified Party’s rights to indemnification
\nhereunder, except to the extent that the Indemnifying Party incurs an out-of-
\npocket expense or otherwise has been prejudiced as a result of such delay.<\/p>\n
(b) Defense. The Indemnifying Party shall be entitled to
\n ——-
\nassume the defense, control and settlement (at its cost) of any Indemnifiable
\nClaim (including Environmental Claims) asserted by a third party. Without
\nprejudice to the foregoing, in the event the Indemnifying Party assumes defense,
\ncontrol and settlement of any Indemnifiable Claim which is an Environmental
\nClaim (an “Indemnifiable Environmental Claim”), the Indemnifying Party shall
\nundertake, and shall be entitled to control, the remediation of the release and
\nshall be entitled to control the defense of any third party claims arising
\ntherefrom, provided that the Indemnifying Party shall take all reasonable steps
\n ——–
\nto minimize any adverse impact of such remediation on the Indemnified Party. If
\nthe Indemnifying Party assumes the defense of any such Indemnifiable Claim, it
\nshall retain experienced counsel reasonably satisfactory to the Indemnified
\nParty. With respect to Indemnifiable Environmental Claims, the Indemnifying
\nParty shall be entitled to (i) retain environmental engineers and other experts
\nand <\/p>\n
50<\/p>\n
advisors as it may determine to be advisable and (ii) to remediate the Release
\nas it may determine to be advisable. If the Indemnifying Party does not assume
\nsuch defense, the Indemnified Party may compromise or settle any claim for the
\npayment of money on behalf of and for the account and risk of the Indemnifying
\nParty, who shall be bound by the result.<\/p>\n
(c) Settlement Limitations. Notwithstanding anything in this
\n ———————-
\nSection 10.3 to the contrary, the Indemnifying Party shall not, without the
\nwritten consent of the Indemnified Party (which consent may not be unreasonably
\nwithheld), settle or compromise any third party Indemnifiable Claim or permit a
\ndefault or consent to entry of any judgment therein. Notwithstanding the
\nforegoing, if a settlement offer solely for money damages (and which otherwise
\n(i) has no material adverse impact on the Indemnified Party, (ii) does not
\nlimit, restrict or otherwise affect Indemnified Party’s ability to conduct the
\nBusiness, (iii) does not require any admission of wrongdoing on the part of
\nIndemnified Party and (iv) does not require payment of any amount by Indemnified
\nParty) is made by the applicable third party claimant, which settlement includes
\nan unqualified release from all liability in respect of such claim, and the
\nIndemnifying Party notifies the Indemnified Party in writing of the Indemnifying
\nParty’s willingness to accept the settlement offer and pay the amount called for
\nby such offer, and the Indemnified Party fails to accept such offer in writing
\nwithin a reasonable period, the Indemnified Party may continue to contest such
\nclaim, free of any participation by the Indemnifying Party, and the amount of
\nany ultimate liability with respect to such Indemnifiable Claim that the
\nIndemnifying Party has an obligation to pay hereunder shall be limited to the
\nlesser of (i) the amount of the settlement offer that the Indemnified Party
\nfailed to accept, or (ii) the aggregate Losses of the Indemnified Party with
\nrespect to such claim. If the Indemnifying Party makes any payment on any claim,
\nthe Indemnifying Party shall be <\/p>\n
51<\/p>\n
subrogated, to the extent of such payment, to all rights and remedies of the
\nIndemnified Party to any claims of the Indemnified Party against third parties
\n(other than the Indemnified Party’s insurers) with respect to such claim.<\/p>\n
10.4 Limitations on Indemnification.
\n ——————————
\n (a) The Indemnified Party shall provide reasonable evidence and
\ndocumentation of the nature and extent of any Loss payable by the Indemnifying
\nParty upon request by the Indemnifying Party.<\/p>\n
(b) Any Indemnifiable Claim governed by this Article X shall be
\nlimited to the amount of Losses sustained by the Indemnified Party, net of the
\ndollar amount of any insurance proceeds received by the Indemnified Party with
\nrespect to such Losses, (net of any Tax liabilities in respect thereof and any
\nincremental cumulative additional insurance costs as a result thereof as
\nreasonably determined by Indemnified Party). The Indemnified Party shall proceed
\nin good faith using commercially reasonable efforts to make claims for any
\ninsurance proceeds receivable with respect to Losses. Seller shall not be
\nrequired to pay any amounts under Section 10.1(a) unless (i) the aggregate of
\nall amounts which would otherwise be payable by Seller thereunder exceeds
\n$2,750,000 or (ii) the amount of any individual Indemnifiable Claim which would
\notherwise be payable by Seller thereunder exceeds $75,000, and, if an
\nIndemnifiable Claim or Indemnifiable Claims, as the case may be, is in excess of
\nsuch individual or aggregate limits, Seller shall be responsible for the total
\namount of such Indemnifiable Claim or Indemnifiable Claims. Buyer shall not be
\nrequired to pay any amounts under Section 10.2(a) unless (i) the aggregate of
\nall amounts for which indemnity would otherwise be payable by Buyer exceeds
\n$2,750,000, or (ii) the amount of any individual Indemnifiable Claim which <\/p>\n
52<\/p>\n
would otherwise be payable by Buyer thereunder exceeds $75,000, and if an
\nIndemnifiable Claim or Indemnifiable Claims, as the case may be, is in excess of
\nsuch individual or aggregate limits, Buyer shall be responsible for the total
\namount of such Indemnifiable Claim or Indemnifiable Claims. For purposes of
\nindemnification in respect of Losses, any representation or warranty shall be
\ndeemed to exclude any limitation or qualification as to materiality set forth in
\nsuch representation or warranty, but in no event shall an individual breach or
\ninaccuracy of any such representation or warranty be considered until the Losses
\nrelating thereto exceed $75,000. Seller’s indemnity obligations under Section
\n10.1(a) shall be limited, in the aggregate, to $75,000,000.<\/p>\n
10.5 Remedies Exclusive. The remedies provided for in this Article
\n ——————
\nX shall constitute the sole and exclusive remedy for any post-Closing claims
\nmade for breach of this Agreement, except for claims arising out of any breach
\nof Sections 5.9 or 12.2, or arising under Article XI. Nothing in this Section
\n10.5, however, shall constitute a waiver or limitation by any party of its
\nrights or remedies based on fraud or intentional misrepresentation. Each party
\nhereby waives any provision of law to the extent that it would limit or restrict
\nthe agreement contained in this Section 10.5. Notwithstanding anything to the
\ncontrary elsewhere in this Agreement, nothing herein shall preclude a party from
\nexercising its rights under this Agreement and applicable law to equitable
\nremedies, including, without limitation, specific performance and injunction,
\nand no party or its Affiliates shall seek or be liable for any punitive or
\nconsequential damages, including, but not limited to, loss of revenue or income,
\nor loss of business reputation or opportunity relating to any breach or alleged
\nbreach of this Agreement (unless, and to the extent, such party is determined to
\nhave acted in bad faith in respect to such breach).<\/p>\n
53<\/p>\n
ARTICLE XI<\/p>\n
TAX MATTERS<\/p>\n
11.1 Allocation of Tax Liabilities; Indemnification.
\n ———————————————- <\/p>\n
(a) Subject to the provisions of Section 11.2 and 11.7, Seller
\nshall be liable for and shall hold Buyer harmless against any liability for
\nTaxes of (i) Company or any Subsidiary for any taxable year or other taxable
\nperiod that ends on or before the Closing Date (including Taxes attributable to
\nthe Section 338 Elections specified in Section 11.7 below) and, in the case of
\nany taxable year or other taxable period that includes the Closing Date, that
\npart of the taxable year or other taxable period that ends at the close of
\nbusiness on the Closing Date, and (ii) Company or any Subsidiary that are
\nattributable to any other corporation and that are imposed on Company or any
\nSubsidiary as a result of membership of Company or such Subsidiary in a
\nconsolidated, combined or unitary group of Seller on or prior to the Closing
\nDate.<\/p>\n
(b) Buyer shall be liable for and shall hold Seller harmless
\nagainst any liability for Taxes of Company and each Subsidiary for any taxable
\nyear or other taxable period that begins after the close of the Closing Date
\nand, in the case of any taxable year or other taxable period that includes the
\nClosing Date, that part of the taxable year or other taxable period that begins
\nafter the close of the Closing Date.<\/p>\n
(c) Whenever it is necessary for purposes of this Section 11.1
\nto determine the liability for Taxes of Company or any Subsidiary for a taxable
\nyear or period that begins on or before and ends after the Closing Date, the
\ndetermination shall be made by assuming that Company had a taxable year which
\nended at the close of business on the Closing Date, except<\/p>\n
54<\/p>\n
that exemptions, allowances or deductions that are calculated on an annual basis
\n(such as the deduction for depreciation) shall be apportioned on a time basis.<\/p>\n
(d) Buyer shall promptly (and in any event within 15 business
\ndays) notify Seller in writing upon receipt by Buyer, any of its Affiliates,
\nCompany or any Subsidiary of notice of any pending or threatened audits or
\nassessments relating to Taxes for which Seller would be required to indemnify
\nBuyer pursuant to Section 11.1(a). Seller shall have the sole right to represent
\nCompany’s or any Subsidiary’s interest in any audit or administrative or court
\nproceeding relating to any Tax that Seller is required to indemnify pursuant to
\nSection 11.1(a), and to employ counsel of its choice at its expense.
\nNotwithstanding the foregoing, Seller shall not be entitled to settle, either
\nadministratively or after the commencement of litigation, any claim for Taxes
\nwhich would materially adversely affect the liability for Taxes of Buyer,
\nCompany or any Subsidiary for any period after the Closing Date without the
\nprior written consent of Buyer. Such consent shall not be unreasonably withheld,
\nand shall not be necessary to the extent that (i) the settlement is consistent
\nwith the positions previously taken by Company or the Subsidiary, or (ii) Seller
\nhas agreed to indemnify Buyer against the effects of any such settlement. If
\nSeller elects not to assume the defense of any claim for Taxes which may be the
\nsubject of indemnification by Seller pursuant to Section 11.1(a), Seller shall
\nbe entitled to participate at its expense in such defense. Neither Buyer nor
\nCompany nor any Subsidiary may agree to settle any claim for Taxes which may be
\nthe subject of indemnification by Seller under Section 11.1(a) without the prior
\nwritten consent of Seller, which consent shall not be unreasonably withheld.<\/p>\n
(e) Seller shall have no liability under Section 11.1(a) for
\nthe payment of any Tax attributable to or resulting from any action described in
\nSection 11.2.<\/p>\n
55<\/p>\n
(f) Seller shall not be liable for any settlements effected
\nwithout the consent of Seller, as required by Section 11.1(d), or resulting from
\nany claim, suit, action, litigation or proceeding in which Seller was not
\npermitted an opportunity to assume the defense as required under Section
\n11.1(d).<\/p>\n
11.2 Tax Covenants. Buyer covenants that it will not cause or permit
\n ————-
\nCompany, any Subsidiary or any Affiliate of Buyer (a) to take any action on or
\nafter the Closing Date other than in the ordinary course of business, including
\nbut not limited to the distribution of any dividend or the effectuation of any
\nredemption that could give rise to any Tax liability of Seller or any of its
\nAffiliates, or (b) to make or change any Tax election, amend any Tax Return or
\ntake any Tax position on any Tax Return, take any action, omit to take any
\naction or enter into any transaction that results in any increased Tax liability
\nor reduction of any Tax asset of Seller, Company or any Subsidiary in respect to
\nany Tax period including the Closing Date or ending on or before the close of
\nbusiness on the Closing Date.<\/p>\n
11.3 Refunds. Any refunds (including interest thereon) of Taxes paid
\n ——-
\nor indemnified by Seller pursuant to Section 11.1(a) shall be for the account of
\nSeller. Any refunds (including interest thereon) of Taxes paid or indemnified by
\nBuyer pursuant to Section 11.1(b) shall be for the account of Buyer. Buyer
\nagrees to assign and promptly remit (and to cause Company and each Subsidiary to
\nassign and promptly remit) to Seller all refunds (including interest thereon) of
\nTaxes which Seller is entitled to hereunder and which are received by Buyer,
\nCompany, any Subsidiary or any other Affiliate of Buyer. Seller agrees to assign
\nand promptly remit to Buyer all refunds (including interest thereon) of Taxes
\nwhich Buyer is entitled to hereunder and which are received by Seller or any of
\nits Affiliates. Buyer agrees that, upon the<\/p>\n
56<\/p>\n
reasonable request and at the sole expense of Seller, Buyer shall file, or cause
\nCompany or any Subsidiary to file, a claim for refund of any Tax which Seller is
\nentitled to hereunder.<\/p>\n
11.4 Tax Benefits.
\n ———— <\/p>\n
(a) If any adjustment shall be made to any Tax Return relating
\nto Seller, Company or any Subsidiary for any taxable period of Company or any
\nSubsidiary ending prior to or on or including the Closing Date which results in
\nany Tax detriment (including any indemnity payment pursuant to Section 11.1(a))
\nto Seller or any Affiliate of Seller (including, prior to the close of business
\non the Closing Date, Company and the Subsidiaries) and results in any deduction,
\nexclusion from income or other allowance (a “Tax Benefit”) to Company, any
\nSubsidiary, Buyer, or any Affiliate of Buyer, Buyer shall pay to Seller the
\namount of the Tax reduction attributable to such Tax Benefit at such time or
\ntimes as, and to the extent that, Company, any Subsidiary, Buyer, or any
\nAffiliate of Buyer realizes such Tax reduction.<\/p>\n
(b) If any adjustment shall be made to any Tax Return relating
\nto Buyer, Company or any Subsidiary for any taxable period of Company or any
\nSubsidiary ending after the Closing Date which results in any Tax detriment to
\nBuyer or any Affiliate of Buyer (including, after the close of business on the
\nClosing Date, Company and the Subsidiaries) and results in any Tax Benefit to
\nSeller or any Affiliate of Seller for any taxable period of Company ending on or
\nprior to the Closing Date, or including the Closing Date (to the extent of the
\nportion of such period treated as ending on the Closing Date pursuant to Section
\n11.1(c)), Seller shall pay to Buyer the amount of the Tax reduction attributable
\nto such Tax Benefit at such time or times as and to the extent that Seller or
\nany Affiliate of Seller realizes such Tax reduction.<\/p>\n
57<\/p>\n
11.5 Returns and Reports.
\n ——————- <\/p>\n
(a) Seller shall file or cause to be filed when due all Tax
\nReturns with respect to Taxes that are required to be filed by or with respect
\nto Company and each Subsidiary for taxable years or periods ending on or before
\nthe Closing Date and shall pay any Taxes shown as due on such Tax returns.
\nUnless otherwise required, Tax Returns with respect to Taxes for taxable years
\nending on the Closing Date shall be prepared on a basis consistent with Treasury
\nRegulations Section 1.1502-76(b)(1); provided, however, that if the Closing Date
\n ——– ——-
\nfalls in the middle of a month, Seller and Buyer may agree to allocate the tax
\nitems ratable to such month consistent with Treasury Regulations Section 1.1502-
\n76(b)(2)(iii). Buyer shall file or cause to be filed when due all Tax Returns
\nthat are required to be filed by or with respect to Company and each Subsidiary
\nfor taxable years or periods ending after the Closing Date and shall pay any
\nTaxes shown as due on such Tax Returns subject to any reimbursement to which
\nBuyer may be entitled pursuant to Section 11.1. Buyer shall cause Company and
\neach Subsidiary to consent to join, for all taxable periods of Company or
\nSubsidiary ending on or before the Closing Date for which Company or Subsidiary
\nis eligible to do so, in any consolidated, combined or unitary Tax Returns
\nrelating to Tax which Seller shall request it to join.<\/p>\n
(b) With respect to any Tax Return with respect to Taxes that covers
\na period beginning before and ending after the Closing Date, a copy of such Tax
\nReturn shall be provided to Seller within 45 days prior to the due date
\n(including extensions) for the filing thereof, and Seller shall have the right
\nto approve (which approval shall not be unreasonably withheld) such Tax Return
\nto the extent it relates to the portion of the period ending on the Closing
\nDate. Seller shall promptly pay to Buyer the amount of Taxes attributable to
\nsuch period less any Taxes previously paid relating to such period (as
\ndetermined pursuant to Section 11.1(c)<\/p>\n
58<\/p>\n
above) at the time such Tax Return is filed. If Seller has overpaid the amount
\nof Taxes attributable to such period Buyer shall refund such amount.<\/p>\n
(c) With respect to any taxable year of Company and each
\nSubsidiary ending after December 27, 1998 and on or prior to the Closing Date,
\nBuyer shall promptly cause Company and each Subsidiary to prepare and provide to
\nSeller a package of tax information materials (the “Tax Package”), which shall
\nbe completed in accordance with past practice including past practice as to
\nproviding the information, schedules and work papers and as to the method of
\ncomputation of separate taxable income or other relevant measure of income of
\nCompany and each Subsidiary.<\/p>\n
(d) Cooperation with Respect to Tax Returns. Buyer and Seller
\n —————————————
\nagree to furnish or cause to be furnished to each other, and each at their own
\nexpense, as promptly as practicable, such information (including access to books
\nand records) and assistance, including making employees available on a mutually
\nconvenient basis to provide additional information and explanations of any
\nmaterials provided, relating to Company and the Subsidiaries as is reasonably
\nnecessary for the filing of any Tax Return, for the preparation for any audit,
\nand for the prosecution or defense of any claim, suit or proceeding relating to
\nany adjustment or proposed adjustment with respect to Taxes. Buyer or Company
\nshall retain in its possession, and shall provide Seller reasonable access to
\n(including the right to make copies of), such supporting books and records and
\nany other materials that Seller may specify with respect to Tax matters relating
\nto any taxable period ending on or before to the Closing Date until 180 days
\nafter the relevant statute of limitations has expired. After such time, Buyer
\nmay dispose of such material.<\/p>\n
59<\/p>\n
11.6 Disputes. If Buyer and Seller cannot agree on any calculation
\n ——–
\nrequired to be made under Sections 11.1(c), 11.3, 11.4 or 11.5(b), Buyer and
\nSeller shall jointly select a national accounting firm acceptable to both Buyer
\nand Seller (or, if they cannot agree on such selection, they shall select a
\nnational (big-five) accounting firm by lot after eliminating the Auditors and
\nBuyer’s independent public accountants) and shall direct the firm so selected to
\nmake such calculation as promptly as practicable, but in any event not later
\nthan 30 days after such direction, and to deliver a written notice to each of
\nBuyer and Seller setting forth the results of such calculation. The results of
\nsuch calculation as made by such firm shall be final and binding, and the fees
\nand expenses of such firm shall be paid 50% by Buyer and 50% by Seller.<\/p>\n
11.7 Section 338 Election.
\n ——————– <\/p>\n
(a) Buyer and Seller shall join in an election to have the
\nprovisions of Section 338(h)(10) of the Code and similar provisions of state law
\n(“Section 338 Elections”) apply to the acquisition of the Stock. Buyer shall be
\nresponsible for the preparation and filing of such election. The allocation of
\npurchase price among the assets of Company shall be made in accordance with Code
\nSections 338 and 1060 and any comparable provisions of state, local or foreign
\nlaw, as appropriate. The parties agree that for tax purposes no part of the
\nPurchase Price is attributable to any noncompetition, nonsolicitation or other
\ncovenants of the parties, unless otherwise required by a taxing authority. Buyer
\nshall initially prepare a complete set of Section 338 Forms, as defined below.
\nBuyer shall deliver said forms to Seller for review no later than ninety
\nbusiness days prior to the date the Section 338 Forms are required to be filed.
\nIn the event Seller objects to the manner in which the Section 338 Forms have
\nbeen prepared, Seller shall notify Buyer within fifteen business days of receipt
\nof the Section 338 Forms of such objection, and the parties shall endeavor
\nwithin the next fifteen business days in good faith to resolve such<\/p>\n
60<\/p>\n
dispute. If the parties are unable to resolve such dispute within a fifteen
\nbusiness-day period, Buyer and Seller shall submit such dispute to an
\nindependent arbiter in accordance with the methodology specified in Section 11.6
\nhereof (the “Allocation Arbiter”). Promptly, but not later than fifteen business
\ndays after its acceptance of appointment hereunder, the Allocation Arbiter will
\ndetermine (based solely on presentations of Buyer and Seller and not by
\nindependent review) only those matters in dispute and will render a written
\nreport as to the disputed matters, and the resulting preparation of the Section
\n338 Forms shall be conclusive and binding upon the parties. “Section 338 Forms”
\nshall mean all returns, documents, statements, and other forms that are required
\nto be submitted to any federal, state, county or other local taxing authority in
\nconnection with a 338 Election, including, without limitation, any “statement of
\nSection 338 Election” and IRS Form 8023 (together with any schedules or
\nattachments thereto) that are required pursuant to Treasury Regulations.<\/p>\n
(b) Seller shall be responsible for and shall pay any income,
\nfranchise, or similar Taxes arising as a result of any Section 338 Election
\n(excluding any Section 338(g) election).<\/p>\n
(c) Buyer shall be responsible for and shall pay Seller for any
\nsales or use or similar Taxes arising as a result of any Section 338 Elections.<\/p>\n
11.8 Termination of Tax Sharing Agreements. Seller agrees and
\n ————————————-
\ncovenants that the existing Tax Sharing Agreement between Seller and Company
\neffective as of July 2, 1997 shall terminate one day prior to the Closing Date
\nand that there will be no outstanding obligations of or to Company pursuant to
\nthe Tax Sharing Agreement or any similar arrangement in effect on the Closing
\nDate.<\/p>\n
61<\/p>\n
11.9 Price Adjustment. Buyer and Seller agree that any payment made
\n —————-
\nunder this Article XI will be treated by the parties on their Tax Returns as an
\nadjustment to the Purchase Price.<\/p>\n
11.10 Survival. Notwithstanding anything in this Agreement to the
\n ——–
\ncontrary, the provisions of this Article XI shall survive through the expiration
\nof the applicable statute of limitations as the same may be extended.<\/p>\n
ARTICLE XII<\/p>\n
PUBLICITY\/CONFIDENTIALITY<\/p>\n
12.1 Publicity and Reports. Seller and Buyer shall coordinate all
\n ———————
\npublicity relating to the transactions contemplated by this Agreement, and
\nneither party shall issue any press release, publicity statement or other public
\nnotice relating to this Agreement or the transactions contemplated by this
\nAgreement without first obtaining the prior written consent of the other party,
\nexcept that neither party shall be precluded from making such filings or giving
\nsuch notices as may be required by Law or the rules of any stock exchange.
\nSeller and Buyer shall cooperate and shall use their reasonable efforts to agree
\non the form of any press releases to be issued following the execution and
\ndelivery of this Agreement and the Closing announcing, respectively, the signing
\nor the consummation of the transactions contemplated by this Agreement.<\/p>\n
12.2 Confidentiality. All non-public information disclosed by any
\n —————
\nparty or its Representatives, whether before or after the date hereof, in
\nconnection with the transactions contemplated by, or the discussions and
\nnegotiations preceding, this Agreement (including, without limitation, any
\nenvironmental records provided pursuant to Section 5.13) to any other<\/p>\n
62<\/p>\n
party or its prospective lenders or their respective Representatives shall be
\nkept confidential by such other party its prospective lenders and their
\nrespective Representatives and shall not be used by any such Persons other than
\nas contemplated by this Agreement, except to the extent that such information
\n(i) was known by the recipient when received, (ii) is or hereafter becomes
\nlawfully obtainable from other sources, (iii) is necessary or appropriate to
\ndisclose to a Governmental Entity having jurisdiction over the parties, (iv) as
\nmay otherwise be required by law, or (v) to the extent such duty as to
\nconfidentiality is waived in writing by the other party; provided, however, that
\n ——– ——-
\nfollowing the Closing the foregoing restrictions will not apply to Buyer’s use
\nof documents and information of Company and its Subsidiaries furnished by Seller
\nhereunder in the conduct of the Business (other than Buyer’s use of any
\nenvironmental records provided pursuant to Section 5.13, which shall be so
\nrestricted, but shall be subject to the exceptions set forth in (i) (v) of this
\nsentence). If this Agreement is terminated in accordance with its terms, each
\nparty shall return all documents and reproductions thereof received by it or its
\nrepresentatives from the other party and, in the case of reproductions, all such
\nreproductions made by the receiving party that include information not within
\nthe exceptions contained in the first sentence of this Section 12.2, unless the
\nrecipients provide assurances satisfactory to the requesting party that such
\ndocuments have been destroyed. This Section 12.2 supersedes and replaces that
\ncertain Confidentiality Agreement dated February 25, 1999 (the “Confidentiality
\nAgreement”) between Buyer and Seller (which hereby is terminated in its entirety
\nother than Section 7 thereof, which shall survive such termination and continue
\nin accordance with its terms).<\/p>\n
63<\/p>\n
ARTICLE XIII<\/p>\n
DEFINITIONS<\/p>\n
13.1 General Provisions. For all purposes of this Agreement, except
\n ——————
\nas otherwise expressly provided:<\/p>\n
(a) the terms defined in this Article XIII have the meanings
\nassigned to them in this Article XIII and include the plural as well as the
\nsingular;<\/p>\n
(b) all accounting terms used herein have the meanings assigned
\nto them under generally accepted accounting principles, except to the extent
\notherwise provided herein;<\/p>\n
(c) all references in this Agreement to designated “Articles,”
\n“Sections” and other subdivisions and to “Exhibits” and “Schedules” are to the
\ndesignated Articles, Sections and other subdivisions of the body of this
\nAgreement and to the Exhibits and Schedules to this Agreement;<\/p>\n
(d) pronouns of either gender or neuter shall include, as
\nappropriate, the other pronoun forms; and<\/p>\n
(e) the words “herein,” “hereof” and “hereunder” and other
\nwords of similar import refer to this Agreement as a whole and not to any
\nparticular Article, Section or other subdivision.<\/p>\n
13.2 Specific Provisions. As used in this Agreement the following
\n ——————-
\ndefinitions shall apply:<\/p>\n
“Acquisition Transaction” is defined in Section 4.6.<\/p>\n
64<\/p>\n
“Action” means any action, complaint, petition, suit or other
\nproceeding, whether civil or criminal, in law or in equity, or before any
\narbitrator or Governmental Entity.<\/p>\n
“Affiliate” means a Person that directly, or indirectly through one or
\nmore intermediaries, controls, or is controlled by, or is under common control
\nwith, a specified Person.<\/p>\n
“Agreed Accounting Principles” means except as otherwise specifically
\nstated in this definition, the GAAP accounting principles, policies, practices
\nand methods applied in the preparation of the most recent of the Financial
\nStatements (specifically December 1998), without regard to whether with respect
\nto any matter there is more than one generally accepted accounting principle, or
\ngenerally accepted accounting principles would permit or allow for more than one
\ntreatment or approach. In particular, the Agreed Accounting Principles shall
\nreflect the GAAP reserving practices, procedures and methods used to establish
\nreserves for accounts receivable, inventory, fixed assets, income taxes, accrued
\nliabilities and deferred income used in such Financial Statement. The Agreed
\nAccounting Principles will also cause to be reflected all payments made and
\nterminations effected pursuant to Sections 5.5 and 5.7. No adjustments shall be
\nmade to reflect the purchase of Stock contemplated by this Agreement (such as
\nadjustments to reflect purchase price in excess of net assets). Assets
\ncontributed to Company or any Subsidiary by Seller or any of its controlled
\nAffiliates after the date hereof will be valued at zero. No identified
\nadjustments to the Closing Balance Sheet shall be excluded therefrom solely
\nbecause such adjustments fell below the materiality threshold, and all such
\nadjustments shall be made.<\/p>\n
“Agreed Rate” means 7% per annum.<\/p>\n
“Agreement” means this Agreement by and between Buyer and Seller as
\namended or supplemented together with all Exhibits and Schedules hereto.<\/p>\n
65<\/p>\n
“Allocation Arbiter” is defined in Section 11.7.<\/p>\n
“Approval” means any approval, authorization, consent, qualification
\nor registration, or any waiver of any of the foregoing, required to be obtained
\nfrom, or any notice, statement or other communication required to be filed with
\nor delivered to, any Governmental Entity or any other Person.<\/p>\n
“Auditors” means Ernst & Young LLP, independent public accountants to
\nCompany.<\/p>\n
“Base Price” is defined in Section 1.1(b).<\/p>\n
“Books and Records” means all books, ledgers, files, reports,
\ndocuments, plans and operating records of or maintained by Seller, Company or
\nany Subsidiary relating to or otherwise reasonably required for the operation of
\nthe Business.<\/p>\n
“Business” means the business of Company and the Subsidiaries taken as
\na whole, and shall be deemed to include the following incidents of such
\nbusiness: income, cash flow, operations, condition (financial or other), assets,
\nproperties, revenues and liabilities. For the avoidance of doubt, “Business”
\nshall include rights and obligations of Company and its Subsidiaries under
\ncontracts with Seller or third parties for wafer fabrication, assembly,
\nproduction, testing or other production-related operations conducted by Seller
\nor third parties on behalf of Company or the Subsidiaries, but shall not include
\nany such wafer fabrication, assembly, production, testing or other production-
\nrelated operations (other than wafer sort test and development engineering
\ntesting).<\/p>\n
“Buyer’s Closing Certificate” is defined in Section 8.1.<\/p>\n
66<\/p>\n
“Buyer’s Environmental Liabilities” means any Losses with respect to:
\n(i) any Release of Hazardous Materials at the Historic Company Business
\nFacilities (which does not constitute Pre-Existing Contamination, as defined
\nbelow) and any migration resulting from such Release, in each case occurring
\nafter the Closing Date; provided that Company or a Subsidiary is owning,
\noperating, leasing or occupying such Historic Company Business Facility at the
\ntime of such Release and such Release is not caused by Seller or any controlled
\nAffiliate thereof; (ii) any Hazardous Materials Activities conducted by Buyer,
\nCompany or any of its Subsidiaries in connection with or to benefit the Business
\nfrom and after the Closing Date; (iii) the violation of any Environmental Laws
\nby Buyer, Company or any Subsidiary or their agents, employees, predecessors in
\ninterest, contractors, invitees or licensees in the conduct of the Business from
\nand after the Closing Date or in connection with any Hazardous Materials
\nActivities from and after the Closing Date.<\/p>\n
“Buyer Per Share Value” is defined in Section 1.2.<\/p>\n
“Closing” means the consummation of the purchase and sale of the Stock
\npursuant to this Agreement.<\/p>\n
“Closing Balance Sheet” means the balance sheet showing, as of the
\nClosing Date, consolidated total assets and consolidated total liabilities of
\nCompany and shareholders’ equity of Company as finally determined pursuant to
\nSection 1.5.<\/p>\n
“Closing Date” means the date of the Closing.<\/p>\n
“Closing Equity” means the consolidated total assets of Company as of
\nthe Closing Date less the consolidated total liabilities of Company as of the
\nClosing Date, in each<\/p>\n
67<\/p>\n
instance computed in accordance with the Agreed Accounting Principles, and in
\nany case unaffected by the election made pursuant to Section 338 of the Code.<\/p>\n
“Closing Equity Adjustment Amount” means:<\/p>\n
(a) if Closing Equity is greater than $59.8 million, the
\n positive amount by which Closing Equity is greater than $59.8 million;<\/p>\n
(b) if Closing Equity is less than $59.8 million, the
\n negative amount by which Closing Equity is less than $59.8 million; or<\/p>\n
(c) if Closing Equity is equal to $59.8 million, then nil.<\/p>\n
“Code” means the Internal Revenue Code of 1986, as amended or as
\nhereafter amended.<\/p>\n
“Company” means Vantis Corporation, a Delaware corporation.<\/p>\n
“Company Per Share Value” is defined in Section 1.2.<\/p>\n
“Company Plan” is defined in Section 2.16.<\/p>\n
“Company Stock Option Plans” means Company’s 1999 Performance Award
\nPlan and Company’s 1999 Leadership Award Plan.<\/p>\n
“Continuing Intercompany Agreements” means the agreements listed on<\/p>\n
Schedule 5.5 and identified as such thereon.
\n———— <\/p>\n
68<\/p>\n
“Contract” means any enforceable agreement, arrangement, bond,
\ncommitment, franchise, indemnity, indenture, instrument, lease, license or
\nunderstanding, whether or not in writing.<\/p>\n
“Employee Pension Benefit Plan” is defined in Section 2.16.<\/p>\n
“Employee Welfare Benefit Plan” is defined in Section 2.16.<\/p>\n
“Encumbrance” means any charge, encumbrance, security interest, lien,
\npledge, or similar restriction, whether imposed by agreement, understanding,
\nlaw, equity or otherwise, provided, however, that “Encumbrance” shall not mean
\n ——– ——-
\nany restrictions on transfer generally arising under any applicable federal or
\nstate securities laws.<\/p>\n
“Environmental Claim” means any claim arising under Environmental Laws
\nor in respect of Hazardous Materials Activities.<\/p>\n
“Environmental Laws” means all federal, state, local and foreign laws
\nand regulations relating to the protection of the environment (including ambient
\nair, surface water, ground water, land surface or subsurface strata) including
\nlaws and regulations relating to the release of Hazardous Materials, or
\notherwise relating to the manufacture, processing, distribution, use, treatment,
\nstorage, disposal, transport or handling of, or exposure of any person to,
\nHazardous Materials.<\/p>\n
“Equity Securities” means any capital stock or other equity interest
\nor any securities convertible into or exchangeable for capital stock or other
\nequity interest or stock appreciation rights or any other rights, warrants or
\noptions to acquire any of the foregoing securities.<\/p>\n
69<\/p>\n
“ERISA” means the Employee Retirement Income Security Act of 1974, as
\namended, and the related regulations and published interpretations.<\/p>\n
“ERISA Affiliate” means any Person other than Company or any
\nSubsidiary who is a member of a group which is under common control with Seller
\nwho together with Seller is treated as a single employer within the meaning of
\nSections 414(b), (c), (m) or (o) of the Code.<\/p>\n
“Estimated Closing Equity Adjustment Amount” is defined in Section
\n1.4.<\/p>\n
“Estimated Purchase Price” is defined in Section 1.4.<\/p>\n
“Exchange Act” means the Securities Exchange Act of 1934, as amended.<\/p>\n
“Exchange Ratio” is defined in Section 1.2.<\/p>\n
“Financial Statements” is defined in Section 2.3.<\/p>\n
“GAAP” means generally accepted accounting principles in the United
\nStates as in effect as of the respective dates of the financial statements
\nreferred to in Section 2.3(a).<\/p>\n
“Governmental Entity” means any government or any agency, bureau,
\nboard, commission, court, department, official, political subdivision, tribunal
\nor other instrumentality of any government, whether federal, state or local,
\ndomestic or foreign.<\/p>\n
“Hart-Scott-Rodino Act” means the Hart-Scott-Rodino Antitrust
\nImprovements Act of 1976, as amended, and the related regulations and published
\ninterpretations.<\/p>\n
70<\/p>\n
“Hazardous Materials” means pollutants, contaminants, wastes, toxic
\nsubstances, radioactive materials, asbestos-containing materials (ACM),
\nhazardous substances, petroleum and petroleum products or any fraction thereof.<\/p>\n
“Hazardous Materials Activities” means the transportation, transfer,
\nrecycling, storage, use, handling, treatment, manufacture, removal,
\ninvestigation, remediation, release, emission, sale, disposal or distribution of
\nany Hazardous Materials, or any waste containing Hazardous Materials.<\/p>\n
“Historic Company Business Facilities” means any property, including
\nthe land and improvements, groundwater and surface water thereof, that Seller,
\nCompany or any Subsidiary has at any time prior to the Closing Date owned,
\noperated, occupied or leased for the conduct of the Business.<\/p>\n
“Indemnifiable Claim” means any Loss for or against which any party is
\nentitled to indemnity under this Agreement.<\/p>\n
“Indemnified Party” means a party entitled to indemnity under this
\nAgreement.<\/p>\n
“Indemnifying Party” means a party obligated to provide indemnity
\nunder this Agreement.<\/p>\n
“Independent Accounting Firm” means an independent certified public
\naccounting firm in the United States of national recognition mutually acceptable
\nto Seller and Buyer, or if Seller and Buyer are unable to agree upon such a
\nfirm, then each of them shall select one such firm and those two firms shall
\nselect a third firm, in which event “Independent Accounting Firm” shall mean
\nsuch third firm.<\/p>\n
71<\/p>\n
“Initial Closing Equity Statement” is defined in Section 1.5(b).<\/p>\n
“Intellectual Property” means all patents, patent applications,
\ntrademarks, maskworks, service marks, logos, trade names, copyrights,
\nproprietary software or similar proprietary intellectual property.<\/p>\n
“Intercompany Agreements” means the agreements listed on Schedule 5.5.
\n ———— <\/p>\n
“IRS” means the Internal Revenue Service or any successor entity.<\/p>\n
“Knowledge”, “to Company’s knowledge” or “to Seller’s knowledge” or
\nany phrase of similar import or other limitation shall mean and be limited to
\nthe knowledge of the persons identified in Schedule 13.2.
\n ————- <\/p>\n
“Law” means any applicable constitutional provision, statute,
\nordinance or other law, rule, regulation, or interpretation of any Governmental
\nEntity and any Order applicable to the operation of Company’s and the
\nSubsidiaries respective business and the ownership of each of their properties
\nand assets.<\/p>\n
“Loss” means any cost, claim, damage, diminution in value,
\ndisbursement, expense, loss, liability, penalty or settlement of any kind or
\nnature, whether foreseeable or unforeseeable, including, but not limited to,
\ninterest or other carrying costs, penalties, legal, accounting and other
\nprofessional fees and expenses reasonably incurred in the investigation,
\ncollection, prosecution and defense of claims and amounts paid in settlement,
\nthat may be imposed on or otherwise incurred or suffered by the specified
\nperson. The term “Loss” as used in this Agreement is not limited to matters
\nasserted by third parties against any specified person<\/p>\n
72<\/p>\n
(“Third Party Claims”), and includes Losses incurred or sustained by such person
\nin the absence of any Third Party Claim.<\/p>\n
“Mark” means any brand name, copyright, patent, service mark,
\ntrademark, tradename, and all registrations or applications for registration of
\nany of the foregoing.<\/p>\n
“Material Contract” means each Contract (including all amendments,
\nsupplements or modifications thereto) to which Company or any Subsidiary is a
\nparty, or which otherwise constitutes an Other Business Asset that (a) is a
\nmaterial facilities lease, (b) by its terms obligates Company or the Subsidiary
\nto pay an amount in excess of $500,000 per year and which cannot be terminated
\nor cancelled by Company or the Subsidiary without liability or penalty upon 60
\ndays’ or less prior notice, (c) limits or restricts the ability of Company or
\nany Subsidiary to compete or otherwise to conduct its business in any manner or
\nplace, (d) is a credit agreement, note, bond, mortgage, deed of trust or
\nindenture evidencing any indebtedness of Company or any Subsidiary for borrowed
\nmoney or is a guaranty by Company or any Subsidiary, (e) contains a right or
\nobligation, other than pursuant to any Company Plan, of any Affiliate (other
\nthan Company or any Subsidiary), officer or director, of Seller, Company or any
\nSubsidiary, from or to Company or any Subsidiary, (f) represents a contract upon
\nwhich the Business is substantially dependent or which is otherwise material to
\nthe Business, (g) grants a power of attorney, agency or similar authority to
\nanother person or entity, (h) grants to a third party a right of first refusal
\nwith respect to a material property of Company or a Subsidiary, (i) is between
\nSeller or any controlled Affiliate of Seller on the one hand and Company or a
\nSubsidiary on the other hand or (j) is a license, sublicense or other agreement
\nlisted on a Schedule under Section 2.8; provided, however, that “Material
\n ——– ——-
\nContract” shall not mean any of the Company Plans.<\/p>\n
73<\/p>\n
“Notice of Disagreement” is defined in Section 1.5(c).<\/p>\n
“Other Business Assets” is defined in Section 5.16.<\/p>\n
“Order” means any decree, injunction, judgment, order, ruling,
\nassessment or writ.<\/p>\n
“Permit” means any license, permit, franchise, certificate of
\nauthority, or order, or any waiver of the foregoing, required to be issued by
\nany Governmental Entity.<\/p>\n
“Permitted Encumbrance” means any Encumbrance that:<\/p>\n
(i) is reflected in the financial statements referred to in
\n Section 2.3(a);<\/p>\n
(ii) is a lien of a landlord, carrier, warehouseman, mechanic,
\n materialman, or any other lien arising in the ordinary course of
\n business by operation of law with respect to liability that is not yet
\n due or delinquent;<\/p>\n
(iii) is a lien for Taxes not yet due or being contested in good
\n faith by appropriate proceedings for which adequate reserves have been
\n established in accordance with GAAP;<\/p>\n
(iv) with respect to the right of a Person to use any property
\n leased from Company or any Subsidiary, arises by the terms of the
\n applicable lease;<\/p>\n
(v) is a purchase money security interest arising in the
\n ordinary course of business; or<\/p>\n
74<\/p>\n
(vi) does not materially detract from the value of the encumbered
\n property or materially detract from or interfere with the use of the
\n encumbered property in the ordinary conduct of the Business and is not
\n otherwise material to the Business or to Company and the Subsidiaries,
\n taken as a whole.<\/p>\n
“Person” means an association, a corporation, a limited liability
\ncompany, an individual, a partnership, a trust or any other entity or
\norganization, including a Governmental Entity.<\/p>\n
“Purchase Price” is defined in Section 1.1(b).<\/p>\n
“Registered Property” is defined in Section 2.8(b).<\/p>\n
“Release” means any release, spill, emission, leaking, pumping,
\ninjection, deposit, disposal, discharge, dispersal, leaching or migration into
\nthe indoor or outdoor environment, including, without limitation, the movement
\nof Hazardous Materials through ambient air, soil, surface water, groundwater,
\nwetlands, land or subsurface strata initiated by Seller or Buyer, as applicable,
\nor any of their respective subsidiaries.<\/p>\n
“Representatives” is defined in Section 4.1.<\/p>\n
“Section 338 Elections” is defined in Section 11.7.<\/p>\n
“Section 338 Forms” is defined in Section 11.7.<\/p>\n
“Seller’s Closing Certificate” is defined in Section 7.1.<\/p>\n
“Seller’s Retained Environmental Liabilities” means any Losses with
\nrespect to: (i) the presence on or before the Closing Date of any Hazardous
\nMaterials in the soil,<\/p>\n
75<\/p>\n
groundwater, surface water, air or building materials of the Historic Company
\nBusiness Facilities (“Pre-Existing Contamination”); (ii) the migration at any
\ntime prior to or after the Closing Date of Pre-Existing Contamination to any
\nother real property; (iii) any Hazardous Materials Activities conducted by
\nSeller or its controlled Affiliates on the Historic Company Business Facilities
\nprior to the Closing Date or otherwise occurring prior to the Closing Date in
\nconnection with the Business (“Pre-Closing Hazardous Materials Activities”);
\n(iv) the violation of any Environmental Laws by the Seller, the Company or any
\nSubsidiary or their agents, employees, predecessors in interest, contractors,
\ninvitees or licensees in connection with the Business prior to the Closing Date
\nor in connection with any Pre-Closing Hazardous Materials Activities.<\/p>\n
“Seller’s Representatives” is defined in Section 4.6.<\/p>\n
“Stock” is defined in the preamble to this Agreement.<\/p>\n
“Subsidiary” means those Persons listed on Schedule 2.1(a).
\n ————— <\/p>\n
“Tax” means any foreign, federal, state, county or local income, sales
\nand use, excise, franchise, real and personal property, transfer, gross receipt,
\nad valorem, stamp, premium, profits, customs, duties, windfall profits, capital
\nstock, production, business and occupation, disability, employment, payroll,
\nseverance or withholding tax, fee, assessment or charge imposed by any
\nGovernmental Entity, any interest and penalties (civil or criminal) related
\nthereto or to the nonpayment thereof, and any Loss in connection with the
\ndetermination, settlement or litigation of any Tax liability.<\/p>\n
“Tax Benefit” is defined in Section 11.4(a).<\/p>\n
76<\/p>\n
“Tax Package” is defined in Section 11.5(c).<\/p>\n
“Tax Return” means a declaration statement, report, return or other
\ninformation required to be supplied to a Governmental Entity with respect to
\nTaxes including, where permitted or required, combined or consolidated returns
\nfor any group of entities that includes Company or any Subsidiary.<\/p>\n
“Treasury Regulation” means those regulations, as amended, promulgated
\nby the United States Department of Treasury.<\/p>\n
“WARN Act” is defined in Section 3.5.<\/p>\n
ARTICLE XIV<\/p>\n
GENERAL<\/p>\n
14.1 Amendments; Waivers. This Agreement and any Exhibit or Schedule
\n ——————-
\nattached hereto may be amended only by an agreement in writing executed on
\nbehalf of both Buyer and Seller. No waiver of any provision nor consent to any
\nexception to the terms of this Agreement shall be effective unless in writing
\nand signed by the party to be bound and then only to the specific purpose,
\nextent and instance so provided.<\/p>\n
14.2 Exhibits and Schedules; Integration. Each Exhibit and Schedule
\n ———————————–
\ndelivered pursuant to the terms of this Agreement shall be in writing and shall
\nconstitute a part of this Agreement, although such Exhibits and Schedules need
\nnot be attached to each copy of this Agreement. This Agreement, together with
\nsuch Exhibits and Schedules and the letters between the parties of even date
\nherewith, constitutes the entire agreement between the parties pertaining to the
\nsubject matter hereof and supersedes all prior agreements and understandings of
\nthe parties<\/p>\n
77<\/p>\n
in connection therewith, including the Confidentiality Agreement dated February
\n25, 1999, by and between Seller and Buyer (other than Section 7 thereof, which
\nshall survive such termination and continue in accordance with its terms).<\/p>\n
14.3 Reasonable Efforts. Each party will use its commercially
\n ——————
\nreasonable efforts to cause all conditions to its and the other party’s
\nobligations hereunder to be timely satisfied, to the end that the transactions
\ncontemplated by this Agreement shall be effected substantially in accordance
\nwith its terms as soon as reasonably practicable.<\/p>\n
14.4 Further Assurances.
\n ——————
\n (a) Subject to the terms and conditions herein provided, each
\nof the parties hereto agrees to use its commercially reasonable efforts to take
\nor cause to be taken, all action, and to do or cause to be done, all things
\nnecessary, proper or advisable, whether under applicable laws and regulations or
\notherwise, to remove any injunctions or other impediments or delays, legal or
\notherwise, in order to consummate and make effective the transactions
\ncontemplated by this Agreement.<\/p>\n
(b) Notwithstanding the foregoing, or anything to the contrary
\ncontained in this Agreement, neither Buyer nor any of its Affiliates shall be
\nrequired to divest themselves of any significant assets or properties or agree
\nto limit the ownership or operation of Buyer or any of its Affiliates, of any
\nsignificant assets or properties, including without limitation the assets to be
\nacquired under this Agreement, in order to perform its obligations under this
\nAgreement.<\/p>\n
14.5 Governing Law. This Agreement, the legal relations between the
\n ————-
\nparties and any Action, whether contractual or non-contractual, instituted by
\nany party with respect to<\/p>\n
78<\/p>\n
matters arising under or growing out of or in connection with or in respect of
\nthis Agreement shall be governed by and construed in accordance with the laws of
\nthe State of California applicable to contracts made and performed in such State
\nand without regard to conflicts of law doctrines.<\/p>\n
14.6 No Assignment. Neither this Agreement nor any rights or
\n ————-
\nobligations under it are assignable, except that Buyer may assign its rights,
\nbut not its obligations, hereunder to any wholly owned subsidiary of Buyer.
\nSubject to the foregoing sentence, this Agreement is binding upon and inures to
\nthe benefit of and is enforceable by the parties hereto and their respective
\nsuccessors and permitted assigns.<\/p>\n
14.7 Headings. The descriptive headings of the Articles, Sections
\n ——–
\nand subsections of this Agreement are for convenience only and do not constitute
\na part of this Agreement.<\/p>\n
14.8 Counterparts. This Agreement and any amendment hereto or any
\n ————
\nother agreement or document delivered pursuant hereto may be executed in one or
\nmore counterparts and by different parties in separate counterparts. All of such
\ncounterparts shall constitute one and the same agreement or other document and
\nshall become effective unless otherwise provided therein when one or more
\ncounterparts have been signed by each party and delivered to the other party.<\/p>\n
14.9 Parties in Interest. Except as set forth in Article 10 with
\n ——————-
\nrespect to Indemnified Parties, nothing in this Agreement, express or implied,
\nis intended to confer upon any other person any rights or remedies of any nature
\nwhatsoever under or by reason of this Agreement.<\/p>\n
79<\/p>\n
14.10 Performance by Subsidiaries. Each party agrees to cause its
\n —————————
\nsubsidiaries to comply with any obligations hereunder relating to such
\nsubsidiaries and to cause its subsidiaries to take any other action which may be
\nnecessary or reasonably requested by the other party in order to consummate the
\ntransactions contemplated by this Agreement.<\/p>\n
14.11 Notices. Any notice or other communication hereunder must be
\n ——-
\ngiven in writing and (a) delivered in person, (b) transmitted by confirmed
\ntelex, telefax or telecommunications mechanism provided that any notice so given
\nis also mailed or sent as provided in clause (c), or (c) mailed by certified or
\nregistered mail, postage prepaid, receipt requested or sent by reputable
\novernight courier as follows:<\/p>\n
If to Buyer, addressed to:<\/p>\n
Lattice Semiconductor Corporation
\n 5555 N.E. Moore Court
\n Hillsboro, Oregon 94124
\n Telecopy: 503-268-8077
\n Attn: General Counsel<\/p>\n
With a copy to:<\/p>\n
Wilson Sonsini Goodrich & Rosati
\n 650 Page Mill Road
\n Palo Alto, California 94304
\n Telecopy: 650-493-6811
\n Attn: Larry W. Sonsini, Esq.<\/p>\n
If to Seller, addressed to:<\/p>\n
Advanced Micro Devices, Inc.
\n One AMD Place
\n P. O. Box 3453
\n Sunnyvale, California 94088-3453
\n Telecopy: 408-774-7399
\n Attn: General Counsel<\/p>\n
80<\/p>\n
With copies to:<\/p>\n
O’Melveny & Myers LLP
\n 400 South Hope Street, 15th Floor
\n Los Angeles, California 90071
\n Telecopy: 213-430-6407
\n Attn: C. James Levin, Esq.<\/p>\n
or to such other address or to such other person as either party shall have last
\ndesignated by such notice to the other party. Each such notice or other
\ncommunication shall be effective (i) if given by telecommunication, when
\ntransmitted to the applicable number specified in (or pursuant to) this Section
\n14.11 and an appropriate answerback is received, (ii) if given by mail or
\ncourier or any other means, when actually delivered.<\/p>\n
14.12 Expenses. Except as otherwise provided in Sections 4.3, 5.1,
\n ——–
\n11.6, 14.13 and 14.16, Seller, Company and Buyer shall each pay their own
\nexpenses incident to the negotiation, preparation and performance of this
\nAgreement and the transactions contemplated hereby, including, but not limited
\nto, the fees, expenses and disbursements of their advisers.<\/p>\n
14.13 Attorneys’ Fees. In the event of any Action by any party
\n —————
\narising under or out of, in connection with or in respect of this Agreement,
\nincluding any participation in bankruptcy proceedings to enforce against a party
\na right or claim in such proceedings, the prevailing party shall be entitled to
\nreasonable attorneys’ fees, costs and expenses incurred in such Action.
\nAttorneys’ fees incurred in enforcing any judgement in respect of this Agreement
\nare recoverable as a separate item. The parties intend that the preceding
\nsentence be severable from the other provisions of this Agreement, survive any
\njudgment and, to the maximum extent permitted by law, not be deemed merged into
\nsuch judgment.<\/p>\n
81<\/p>\n
14.14 Representation By Counsel; Interpretation. Seller and Buyer
\n —————————————–
\neach acknowledge that each party to this Agreement has been represented by
\ncounsel in connection with this Agreement and the transactions contemplated by
\nthis Agreement. Accordingly, any rule of Law or any legal decision that would
\nrequire interpretation of any claimed ambiguities in this Agreement against the
\nparty that drafted it has no application and is expressly waived. The provisions
\nof this Agreement shall be interpreted in a reasonable manner to effect the
\nintent of Buyer and Seller.<\/p>\n
14.15 Severability. If any provision of this Agreement is determined
\n ————
\nto be invalid, illegal or unenforceable by any Governmental Entity, the
\nremaining provisions of this Agreement shall remain in full force and effect
\nprovided that the essential terms and conditions of this Agreement for both
\nparties remain valid, binding and enforceable. To the extent permitted by Law,
\nthe parties hereby to the same extent waive any provision of Law that renders
\nany provision hereof prohibited or unenforceable in any respect.<\/p>\n
14.16 Dispute Resolution; Agreement to Arbitrate. Except to the
\n ——————————————
\nextent that any specific Dispute resolution mechanism has been otherwise
\nprovided for in Section 1.5, 11.6 and 11.7 (or such mechanism has been pursued
\nto its conclusion and either the Dispute (as defined below) in question remains
\nunresolved or the resolution reached by such process has not been honored), and
\nsubject to Section 14.16(d), in the event that any Dispute arises between Buyer
\nand Seller with respect to this Agreement or the transactions contemplated
\nhereby, the following procedures shall apply.<\/p>\n
(a) The parties will attempt in good faith to resolve any
\ndispute, controversy or claim under, arising out of, relating to or in
\nconnection with this Agreement,<\/p>\n
82<\/p>\n
including, but not limited to, the negotiation, execution, interpretation,
\nconstruction, performance, non-performance, breach, termination, validity,
\nscope, coverage or enforceability of this Agreement or any alleged fraud in
\nconnection therewith (a “Dispute”), promptly by negotiations between appropriate
\nsenior officers of the parties. If any such Dispute should arise, appropriate
\nsenior officers of Buyer and Seller will meet at least once within 20 days after
\nnotice of such Dispute is given by a party and will attempt to resolve the
\nmatter. Nothing herein, however, shall prohibit a party from initiating
\narbitration proceedings pursuant to Section 14.16(d) if such party reasonably
\nbelieves it would be substantially prejudiced by a 50-day delay in commencing
\narbitration proceedings; provided, however, that the initiation of arbitration
\n ——– ——-
\nproceedings shall not relieve the parties of their obligations to mediate
\nDisputes pursuant to Section 14.16(c). Either representative may request the
\nother to meet again within 14 days thereafter, at a mutually agreed time and
\nplace.<\/p>\n
(b) If the matter has not been resolved within 30 days after
\nthe first meeting of the representatives (which period may be extended by mutual
\nagreement), the parties will attempt in good faith to resolve the controversy or
\nclaim in accordance with the Center for Public Resources Model Procedure for
\nMediation of Business Disputes as in effect at such time. The costs of mediation
\nshall be shared equally by the parties. Any settlement reached by mediation
\nshall be resolved in writing, signed by the parties and binding on the parties.
\nThe place of any such mediation shall be San Jose, California.<\/p>\n
(c) If the matter has not been resolved pursuant to the
\nforegoing procedures within 60 days after the first meeting (which period may be
\nextended by mutual agreement), the matter shall be resolved, at the request of
\neither party, by arbitration conducted in accordance with the provisions of the
\nFederal Arbitration Act (9 U.S.C. (S)(S)1-16) and in<\/p>\n
83<\/p>\n
accordance with the Center for Public Resources Rules for Non-Administered
\nArbitration of Business Disputes as then in effect, by three neutral arbitrators
\nselected by the parties as follows. Each party shall select a neutral
\narbitrator, subject to objection of the other party, and the two neutral
\narbitrators chosen by the parties shall select a third neutral arbitrator. If
\nthe two neutral arbitrators selected by the parties are unable to agree on the
\nselection of the third arbitrator, they shall select an arbitrator according to
\nthe procedures established by the Center for Public Resources Rules for Non-
\nAdministered Arbitration of Business Disputes as then in effect. The arbitration
\nof such issues, including the determination of any amount of damages suffered by
\nany party hereto by reason of the acts or omissions of any party, shall be final
\nand binding upon the parties, except that the arbitrator shall not be authorized
\nto award punitive damages with respect to any such claim, dispute or
\ncontroversy. The arbitrators shall have the power to decide all questions of
\narbitrability and of such arbitrators’ jurisdiction. No party shall seek any
\npunitive damages relating to any matters under, arising out of, in connection
\nwith or relating to this Agreement. Equitable remedies shall be available in any
\nsuch arbitration. The parties intend that this agreement to arbitrate be valid,
\nbinding, enforceable and irrevocable. The substantive and procedural law of the
\nState of California shall apply to any such arbitration proceedings. The place
\nof any such arbitration shall be San Jose, California. Judgment upon the award
\nrendered by the arbitrators may be entered by any court having jurisdiction
\nthereof.<\/p>\n
(d) Notwithstanding the provisions of this Section 14.16,
\neither party may seek injunctive or other equitable relief to maintain the
\nstatus quo before any court of competent jurisdiction in connection with any
\nclaim, dispute or controversy arising out of this Agreement, without breach of
\nthis Section 14.16 or abridgement of the powers of the arbitrators.<\/p>\n
84<\/p>\n
IN WITNESS WHEREOF, each of Buyer and Seller has caused this Agreement
\nto be executed by its duly authorized representative as of the date first above
\nwritten.<\/p>\n
BUYER:<\/p>\n
LATTICE SEMICONDUCTOR CORPORATION,
\n a Delaware corporation<\/p>\n
By: \/s\/ Cyrus Y. Tsui
\n _________________________________________
\n Cyrus Y. Tsui
\n Title: President and Chief Executive Officer<\/p>\n
SELLER:<\/p>\n
ADVANCED MICRO DEVICES, INC.,
\n a Delaware corporation<\/p>\n
By: \/s\/ Richard Previte
\n _________________________________________
\n Richard Previte
\n Title: President and Co-Chief Operating Officer<\/p>\n
85<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6576,8026],"corporate_contracts_industries":[9512],"corporate_contracts_types":[9622,9627],"class_list":["post-43686","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-advanced-micro-devices-inc","corporate_contracts_companies-lattice-semiconductor-corp","corporate_contracts_industries-technology__semiconductors","corporate_contracts_types-planning","corporate_contracts_types-planning__purchase"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43686","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=43686"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43686"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43686"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43686"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}