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STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT, dated as of March 4, 1999, is by and between
Intel Corporation, a Delaware corporation ("Grantee"), and Level One
Communications, Incorporated, a Delaware corporation ("Issuer").
RECITALS
A. Grantee, Intel RSW Corporation ("Acquisition") and Issuer are
simultaneously entering into an Agreement and Plan of Merger (the "Merger
Agreement") which provides, among other things, that upon the terms and subject
to the conditions thereof, Acquisition will be merged with and into Issuer (the
"Merger").
B. As a condition to its willingness to enter into the Merger Agreement,
Grantee has required that Issuer agree, and Issuer has agreed, to enter into
this Stock Option Agreement, which provides, among other things, that Issuer
grant to Grantee an option to purchase shares of Issuer's Common Stock ("Issuer
Common Stock"), upon the terms and subject to the conditions provided for
herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements contained in this Stock Option Agreement and the Merger Agreement,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions of this Stock
Option Agreement, Issuer hereby grants to Grantee an irrevocable option (the
"Option") to purchase up to 7,798,546 shares of Issuer Common Stock (the "Option
Shares"), in the manner set forth below, at an exercise price of $50 per share
of Issuer Common Stock, subject to adjustment as provided below (the "Option
Price"). Capitalized terms used herein but not defined herein shall have the
meanings set forth in the Merger Agreement.
2. EXERCISE OF OPTION.
(a) Subject to the satisfaction or waiver of the conditions set forth in
Section 9 of this Stock Option Agreement, prior to the termination of this Stock
Option Agreement in accordance with its terms, Grantee may exercise the Option,
in whole or in part, at any time or from time to time on or after the occurrence
of a Triggering Event (as defined below). The Option shall terminate and not be
exercisable at any time following the Expiration Date (as defined in Section
11). The term "Triggering Event" means the time immediately prior to the
occurrence of any of the events (or series of events) specified in Section
6.3(a) of the Merger Agreement giving rise to the obligation of the Company to
pay the fee specified in Section 6.3(a). Notwithstanding the foregoing, the
Option will not be exercisable if Grantee has materially breached the Merger
Agreement and such breach remains uncured at the time of exercise.
(b) In the event Grantee wishes to exercise the Option at such time as the
Option is exercisable and has not terminated, Grantee shall deliver written
notice (the "Exercise Notice") to Issuer specifying its intention to exercise
the Option, the total number of Option Shares it wishes to purchase and a date
and time for the closing of such purchase (a "Closing") not less than one (1)
nor more than thirty (30) business days after the later of (i) the date such
Exercise Notice is given and (ii) the expiration or termination of any
applicable waiting period under the HSR Act. If prior to the Expiration Date (as
defined in Section 11 below) any person or group (other than Grantee and its
affiliates) shall have acquired fifty percent (50%) or more of the then
outstanding shares of Issuer Common Stock (a "Share Acquisition"), or Issuer
shall have entered into a written definitive agreement with any person or group
(other than Grantee and its affiliates) providing for a Company Acquisition (as
defined below), then Grantee, in lieu of exercising the Option, shall have the
right at any time thereafter (for so long as the Option is exercisable under
Section 2(a) hereof) to request in writing that Issuer pay, and promptly (but in
any event not more than five (5) business days) after the giving by Grantee of
such request, Issuer shall pay to Grantee, in cancellation of the Option, an
amount in cash (the "Cancellation Amount") equal to the lesser of:
(i) (1) the excess over the Option Price of the greater of (A) the
last sale price of a share of Issuer Common Stock as reported on the Nasdaq
National Market on the last trading day prior to the date of the Exercise
Notice, and (B) (I) the highest price per share of Issuer Common Stock
offered to be paid
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or paid by any such person or group pursuant to or in connection with such
Share Acquisition or Company Acquisition or (II) if such Company
Acquisition consists of a purchase and sale of assets, the sum of (a) the
aggregate consideration offered to be paid or paid in any transaction or
proposed transaction in connection with a Company Acquisition and (b) the
amount of cash to be received by the Company upon the exercise or
conversion of outstanding in-the-money options, warrants, rights or
convertible securities, divided by the sum of (y) the number of shares of
Issuer Common Stock then outstanding and (z) the number of shares issuable
upon exercise or conversion of outstanding in-the-money options, warrants,
rights or convertible securities, multiplied by (2) the number of Option
Shares then covered by the Option or
(ii) Twenty-Five Million Dollars ($25,000,000).
If all or a portion of the price per share of Issuer Common Stock offered,
paid or payable or the aggregate consideration offered, paid or payable for the
stock or assets of Issuer, each as contemplated by the preceding sentence,
consists of noncash consideration, such price or aggregate consideration shall
be the cash consideration, if any, plus the fair market value of the non-cash
consideration as determined jointly by the investment bankers of Issuer and the
investment bankers of Grantee.
(c) Notwithstanding anything to the contrary herein, if Grantee (including
any of its affiliates) receives proceeds in connection with any sale or other
disposition of Option Shares (or any rights thereto or thereof), together with
any proceeds in connection with any dividends or distributions received by
Grantee on any Option Shares, in an aggregate amount that exceeds the sum of (x)
Twenty-Five Million Dollars ($25,000,000), plus (y) the Option Price multiplied
by the number of Option Shares purchased hereunder, then all proceeds to Grantee
or its affiliates in excess of such sum shall be remitted to Issuer promptly
following receipt.
(d) As used herein, "Company Acquisition" means the occurrence of any of
the following events: (i) the acquisition by a Third Party of fifty percent
(50%) or more of the assets of the Issuer and its subsidiaries taken as a whole;
(ii) the acquisition by a Third Party of fifty percent (50%) or more of the
outstanding Shares or any securities convertible into or exchangeable for Shares
that would constitute fifty percent (50%) or more of the outstanding Shares upon
such conversion or exchange, or any combination of the foregoing; or (iii) the
acquisition by the Issuer of the assets or stock of a Third Party if, as a
result of which the outstanding shares of the Issuer immediately prior thereto
are increased by one hundred percent (100%) or more, or (iv) the merger,
consolidation or business combination of the Issuer with or into a Third Party,
where, following such merger, consolidation or business combination, the
stockholders of the Issuer (other than the Third Party or its affiliates) prior
to such transaction do not hold, immediately after such transaction, securities
of the surviving entity constituting more than fifty percent (50%) of the total
voting power of the surviving entity.
3. PAYMENT OF OPTION PRICE AND DELIVERY OF CERTIFICATE. Any Closings under
Section 2 of this Stock Option Agreement shall be held at the principal
executive offices of Issuer, or at such other place as Issuer and Grantee may
agree. At any Closing hereunder, (a) Grantee or its designee will make payment
to Issuer of the aggregate price for the Option Shares being so purchased by
delivery of a certified check, official bank check or wire transfer of funds
pursuant to Issuer's instructions payable to Issuer in an amount equal to the
product obtained by multiplying the Option Price by the number of Option Shares
to be purchased, and (b) upon receipt of such payment Issuer will deliver to
Grantee or its designee a certificate or certificates representing the number of
validly issued, fully paid and non-assessable Option Shares so purchased, in the
denominations and registered in such names designated to Issuer in writing by
Grantee.
4. REGISTRATION AND LISTING OF OPTION SHARES.
(a) Grantee may, by written notice (a "Registration Notice"), request at
any time or from time to time within two (2) years following a Triggering Event
(the "Registration Period"), in order to permit the sale or other disposition of
the Option Shares that have been acquired by or are issuable to Grantee upon
exercise of the Option ("Registrable Securities"), that Issuer register under
the Securities Act of 1933, as amended (the "Act"), the offering, sale and
delivery, or other disposition, of the Registrable Securities. In connection
with any such sale or other disposition, Grantee shall use all reasonable
efforts to prevent any person or group from
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purchasing through such offering shares of Issuer Common Stock representing more
than five percent (5%) of the outstanding Common Stock of Issuer on a fully
diluted basis at the time of such request. Any such Registration Notice must
relate to a number of Registrable Securities equal to at least twenty percent
(20%) of the Option Shares, unless the remaining number of Registrable
Securities is less than such amount, in which case Grantee shall be entitled to
exercise its rights hereunder but only for all of the remaining Registrable
Securities (a "Permitted Offering"). Grantee's rights hereunder shall terminate
at such time as Grantee shall be entitled to sell all of the remaining
Registrable Securities pursuant to Rule 144(k) under the Act. The Registration
Notice shall include a certificate executed by Grantee and its proposed managing
underwriter, which underwriter shall be an investment banking firm of nationally
recognized standing reasonably acceptable to Issuer (the "Manager"), stating
that (i) Grantee and the Manager have a good faith intention to commence a
Permitted Offering and (ii) the Manager in good faith believes that, based on
the then prevailing market conditions, it will be able to sell the Registrable
Securities at a per share price equal to at least 80% of the per share average
of the closing sale prices of Issuer's Common Stock on the Nasdaq National
Market for the twenty trading days immediately preceding the date of the
Registration Notice. Issuer shall thereupon have the option exercisable by
written notice delivered to Grantee within ten business days after the receipt
of the Registration Notice, irrevocably to agree to purchase all or any part of
the Registrable Securities for cash at a price (the "Option Price") equal to the
product of (i) the number of Registrable Securities so purchased and (ii) the
per share average of the closing sale prices of Issuer's Common Stock on the
Nasdaq National Market for the twenty trading days immediately preceding the
date of the Registration Notice. Any such purchase of Registrable Securities by
Issuer hereunder shall take place at a closing to be held at the principal
executive offices of Issuer or its counsel at any reasonable date and time
designated by Issuer in such notice within 10 business days after delivery of
such notice. The payment for the shares to be purchased shall be made by
delivery at the time of such closing of the Option Price in immediately
available funds. If Issuer does not elect to exercise its option to purchase
pursuant to the foregoing with respect to all Registrable Securities, Issuer
shall use reasonable efforts to effect, as promptly as practicable, the
registration under the Act of the unpurchased Registrable Securities requested
to be registered in the Registration Notice, and Issuer will use all reasonable
efforts to qualify any Registrable Securities Grantee desires to sell or
otherwise dispose of under applicable state securities or "blue sky" laws;
provided, however, that Issuer shall not be required to qualify to do business
or consent to general service of process in any jurisdiction by reason of this
provision. Without Grantee's prior written consent, no other securities may be
included in any such registration. Issuer will use all reasonable efforts to
cause each such registration statement to become effective, to obtain all
consents or waivers of other parties that are required therefor and to keep such
registration statement effective for a period of ninety (90) days from the day
such registration statement first becomes effective. The obligations of Issuer
hereunder to file a registration statement and to maintain its effectiveness may
be suspended for one or more periods not exceeding ninety (90) days in any six
(6) month period if the Board of Directors of Issuer shall have determined in
good faith that the filing of such registration statement or the maintenance of
its effectiveness would require disclosure of nonpublic information that would
materially and adversely affect Issuer, or Issuer is required under the Act to
include audited financial statements for any period in such registration
statement and such financial statements are not yet available for inclusion in
such registration statement. Grantee shall be entitled to make up to two (2)
requests under this Section 4(a). For purposes of determining whether the two
(2) requests have been made under this Section 4(a), only requests relating to a
registration statement that has become effective under the Act will be counted.
(b) If, during the Registration Period, Issuer shall propose to register
under the Act the offering, sale and delivery of Issuer's Common Stock for cash
for its own account or for any other stockholder of Issuer pursuant to a firm
underwriting, it will, in addition to Issuer's other obligations under this
Section 4, allow Grantee the right to participate in such registration so long
as Grantee participates in such underwriting; provided, however, that, if the
managing underwriter of such offering advises Issuer in writing that in its
opinion the number of shares of Issuer's Common Stock requested to be included
in such registration exceeds the number that it would be in the best interests
of Issuer to sell in such offering, Issuer will, after fully including therein
all shares of Issuer Common Stock to be sold by Issuer, include the shares of
Issuer Common Stock requested to be included therein by Grantee pro rata (based
on the number of shares of Issuer Common Stock requested to be included therein)
with the shares of Issuer Common Stock requested to be included therein by
persons
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other than Issuer and persons to whom Issuer owes a contractual obligation
(other than any director, officer or employee of Issuer to the extent any such
person is not currently owed such contractual obligation).
(c) The expenses associated with the preparation and filing of any
registration statement pursuant to this Section 4 and any sale covered thereby
(including any fees related to blue sky qualifications and filing fees in
respect of SEC or the National Association of Securities Dealers, Inc.)
("Registration Expenses") will be paid by Issuer, except for underwriting
discounts or commissions or brokers' fees in respect of shares of Issuer's
Common Stock to be sold by Grantee and the fees and disbursements of Grantee's
counsel; provided, however, that Issuer will not be required to pay for any
Registration Expenses with respect to such registration if the registration
request is subsequently withdrawn at the request of Grantee unless Grantee
agrees to forfeit its right to request one registration; provided further,
however, that, if at the time of such withdrawal Grantee has learned of a
material adverse change in the results of operations, condition, business or
prospects of Issuer not known to Grantee at the time of the request and has
withdrawn the request within a reasonable period of time following disclosure by
Issuer to Grantee of such material adverse change, then Grantee shall not be
required to pay any of such expenses and shall not forfeit such right to request
one registration. Grantee will provide all information reasonably requested by
Issuer for inclusion in any registration statement to filed hereunder.
(d) In connection with each registration under this Section 4, Issuer shall
indemnify and hold Grantee, its underwriters and each of their respective
affiliates harmless against any and all losses, claims, damage, liabilities and
expenses (including, without limitation, investigation expenses and fees and
disbursements of counsel and accountants), joint or several, to which Grantee,
its underwriters and each of their respective affiliates may become subject,
under the Act or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
registration statement (including any prospectus therein), or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, other than such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) that
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in written information furnished by Grantee to
Issuer expressly for use in such registration statement.
(e) In connection with any registration statement pursuant to this Section
4, Grantee agrees to furnish Issuer with such information concerning itself and
the proposed sale or distribution as shall reasonably be required in order to
ensure compliance with the requirements of the Act and shall provide
representations and warranties customary for selling shareholders who are
unaffiliated with the issuer. In addition, Grantee shall indemnify and hold
Issuer, its underwriters and each of their respective affiliates harmless
against any and all losses, claims, damages, liabilities and expenses
(including, without limitation, investigation expenses and fees and disbursement
of counsel and accountants), joint or several, to which Issuer, its underwriters
and each of their respective affiliates may become subject under the Act or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in written information
furnished by Grantee to Issuer expressly for use in such registration statement;
provided, however, that in no event shall any indemnification amount contributed
by Grantee hereunder exceed the proceeds of the offering received by Grantee.
(f) Upon the issuance of Option Shares hereunder, Issuer will use
reasonable efforts to promptly list such Option Shares with such national or
other exchange on which the shares of Issuer Common Stock are at the time
listed.
5. REPRESENTATIONS AND WARRANTIES OF ISSUER. Issuer hereby represents and
warrants to Grantee as follows:
(a) Issuer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has requisite
power and authority to enter into and perform its obligations under this
Stock Option Agreement.
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(b) The execution and delivery of this Stock Option Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of Issuer and no other
corporate proceedings on the part of Issuer are necessary to authorized
this Stock Option Agreement or to consummate the transactions contemplated
hereby. The Board of Directors of Issuer has duly approved the issuance and
sale of the Option Shares, upon the terms and subject to the conditions
contained in this Stock Option Agreement, and the consummation of the
transactions contemplated hereby. This Stock Option Agreement has been duly
and validly executed and delivered by Issuer and, assuming this Stock
Option Agreement has been duly and validly authorized, executed and
delivered by Grantee, constitutes a valid and binding obligation of Issuer
enforceable against Issuer in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting or relating to creditors' rights generally; the availability of
injunctive relief and other equitable remedies; and limitations imposed by
law on indemnification for liability under federal securities laws.
(c) Issuer has taken all necessary action to authorize and reserve for
issuance and to permit it to issue, and at all times from the date of this
Stock Option Agreement through the date of expiration of the Option will
have reserved for issuance upon exercise of the Option, a sufficient number
of authorized shares of Issuer Common Stock for issuance upon exercise of
the Option, each of which, upon issuance pursuant to this Stock Option
Agreement and when paid for as provided herein, will be validly issued,
fully paid and nonassessable, and shall be delivered free and clear of all
claims, liens, charges, encumbrances and security interests (other than
those imposed by Grantee, its affiliates or by applicable law).
(d) The execution, delivery and performance of this Stock Option
Agreement by Issuer and the consummation by it of the transactions
contemplated hereby except as required by the HSR Act and any material
foreign competition authorities (if applicable), and, with respect to
Section 4 hereof, compliance with the provisions of the Act and any
applicable state securities laws, do not require the consent, waiver,
approval, license or authorization of or result in the acceleration of any
obligation under, or constitute a default under, any term, condition or
provision of the Certificate of Incorporation or bylaws, or any indenture,
mortgage, lien, lease, agreement, contract, instrument, order, judgment,
ordinance, regulation or decree or any restriction to which Issuer or any
property of Issuer or its subsidiaries is bound, except where failure to
obtain such consents, waivers, approvals, licenses or authorizations or
where such acceleration or defaults could not, individually or in the
aggregate, reasonably be expected to adversely affect Grantee's rights
hereunder or to have a Material Adverse Effect on Issuer.
6. REPRESENTATIONS AND WARRANTIES OF GRANTEE. Grantee hereby represents and
warrants to Issuer that:
(a) Grantee is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has the
requisite power and authority to enter into and perform its obligations
under this Stock Option Agreement.
(b) The execution and delivery of this Stock Option Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of Grantee and no other
corporate proceedings on the part of Grantee are necessary to authorize
this Stock Option Agreement or to consummate the transactions contemplated
hereby. This Stock Option Agreement has been duly and validly executed and
delivered by Grantee and, assuming this Stock Option Agreement has been
duly executed and delivered by Issuer, constitutes a valid and binding
obligation of Grantee enforceable against Grantee in accordance with its
terms.
(c) Grantee is acquiring the Option and it will acquire the Option
Shares issuable upon the exercise thereof for its own account and not with
a view to the distribution or resale thereof in any manner not in
accordance with applicable law.
7. COVENANTS OF GRANTEE. Grantee agrees not to transfer or otherwise
dispose of the Option or the Option Shares, or any interest therein, except that
Grantee may transfer or dispose of the Option Shares so
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long as such transaction is in compliance with the Act and any applicable state
securities law. Grantee further agrees to the placement of the following legend
on the certificates) representing the Option Shares (in addition to any legend
required under applicable state securities laws) and any legend referring to the
provisions of Section 12 hereof:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
EITHER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
APPLICABLE STATE LAW GOVERNING THE OFFER AND SALE OF SECURITIES. NO
TRANSFER OR OTHER DISPOSITION OF THESE SHARES, OR OF ANY INTEREST THEREIN,
MAY BE MADE EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT AND SUCH OTHER STATE LAWS OR PURSUANT TO EXEMPTIONS FROM
REGISTRATION UNDER THE ACT, SUCH OTHER STATE LAWS, AND THE RULES AND
REGULATIONS PROMULGATED THEREUNDER."
8. HSR COMPLIANCE EFFORTS. Grantee and Issuer shall take, or cause to be
taken, all reasonable action to consummate and make effective the transactions
contemplated by this Stock Option Agreement, including, without limitation,
reasonable efforts to obtain any necessary consents of third parties and
governmental agencies and the filing by Grantee and Issuer promptly of any
required HSR Act notification forms and the documents required to comply with
the HSR Act.
9. CERTAIN CONDITIONS. The obligation of Issuer to issue Option Shares
under this Stock Option Agreement upon exercise of the Option shall be subject
to the satisfaction or waiver of the following conditions:
(a) any waiting periods applicable to the acquisition of the Option
Shares by Grantee pursuant to this Stock Option Agreement under the HSR Act
and any material foreign competition laws shall have expired or been
terminated;
(b) the representations and warranties of Grantee made in Section 6 of
this Stock Option Agreement shall be true and correct in all material
respects as of the date of the closing for the issuance of such Option
Shares; and
(b) no statute, rule or regulation shall be in effect, and no order,
decree or injunction entered by any court of competent jurisdiction or
governmental, regulatory or administrative agency or commission in the
United States shall be in effect that prohibits the exercise of the Option
or acquisition or issuance of Option Shares pursuant to this Stock Option
Agreement.
10. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of any change
in the number of issued and outstanding shares of Issuer Common Stock by reason
of any stock dividend, stock split, recapitalization, merger, rights offering,
share exchange or other change in the corporate or capital structure of Issuer,
Grantee shall receive, upon exercise of the Option, the stock or other
securities, cash or property to which Grantee would have been entitled if
Grantee had exercised the Option and had been a holder of record of shares of
Issuer Common Stock on the record date fixed for determination of holders of
shares of Issuer Common Stock entitled to receive such stock or other
securities, cash or property at the same aggregate price as the aggregate Option
Price of the Option Shares.
11. EXPIRATION. The Option shall expire at the earlier of (y) the Effective
Time (as defined in the Merger Agreement) and (z) 5:00 p.m., California time, on
the day that is the one year anniversary of the date on which the Merger
Agreement has been terminated in accordance with the terms thereof (such
expiration date is referred to as the "Expiration Date").
12. ISSUER CALL. If Grantee has acquired Option Shares pursuant to exercise
of the Option (the date of any closing relating to any such exercise herein
referred to as an "Exercise Date") and no Company Acquisition with respect to
Issuer has been consummated at any time after the date of this Agreement and
prior to one year following the date hereof (and Issuer has not entered into a
definitive agreement or letter of intent with respect to such a Company
Acquisition which agreement or letter of intent remains in effect at the end of
such year), then, at any time after the date thirteen (13) months following the
date hereof and prior to
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nineteen (19) months following such Exercise Date, Issuer may require Grantee,
upon delivery to Grantee of written notice, to sell to Issuer any Option Shares
held by Grantee as of the date that is ten (10) business days after the date of
such notice, up to a number of shares equal to the number of Option Shares
acquired by Grantee pursuant to exercise of the Option in connection with such
Exercise Date. The per share purchase price for such sale (the "Issuer Call
Price") shall be equal to the Option Price less any dividends paid on the Option
Shares to be purchased by Issuer pursuant to this Section 12. The closing at any
sale of Option Shares pursuant to this Section 12 shall take place at the
principal offices of Issuer at a time and on a date designated by Issuer in the
aforementioned notice to Grantee, which date shall be no more than twenty (20)
and no less than twelve (12) business days from the date of such notice. The
Issuer Call Price shall be paid in immediately available funds.
13. GENERAL PROVISIONS.
(a) Survival. All of the representations, warranties and covenants
contained herein shall survive a Closing and shall be deemed to have been made
as of the date hereof and as of the date of each Closing except for the
representations and warranties in Section 5(d) hereof which shall be deemed to
have been made only as of the date hereof.
(b) Further Assurances. If Grantee exercises the Option, or any portion
thereof, in accordance with the terms of this Stock Option Agreement, Issuer and
Grantee will execute and deliver all such further documents and instruments and
use all reasonable efforts to take all such further action as may be necessary
in order to consummate the transactions contemplated thereby.
(c) Severability. It is the desire and intent of the parties that the
provisions of this Stock Option Agreement be enforced to the fullest extent
permissible under the law and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, in the event that any provision of
this Stock Option Agreement would be held in any jurisdiction to be invalid,
prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Stock Option Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not be invalid,
prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Stock Option Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
(d) Assignment; Transfer of Stock Option. This Stock Option Agreement shall
be binding on and inure to the benefit of the parties hereto and their
respective successors and permitted assigns; provided, however, that Issuer and
Grantee, without the prior written consent of the other party, shall not be
entitled to assign or otherwise transfer any of its rights or obligations
hereunder and any such attempted assignment or transfer shall be void; provided,
further, that Grantee shall be entitled to assign or transfer this Stock Option
Agreement or any rights hereunder to any wholly-owned subsidiary of Grantee so
long as such wholly-owned subsidiary agrees in writing to be bound by the terms
and provisions hereof.
(e) Specific Performance. The parties agree and acknowledge that in the
event of a breach of any provision of this Stock Option Agreement, the aggrieved
party would be without an adequate remedy at law. The parties therefore agree
that in the event of a breach of any provision of this Stock Option Agreement,
the aggrieved party may elect to institute and prosecute proceedings in any
court of competent jurisdiction to enforce specific performance or to enjoin the
continuing breach of such provisions, as well as to obtain damages for breach of
this Stock Option Agreement. By seeking or obtaining any such relief, the
aggrieved party will not be precluded from seeking or obtaining any other relief
to which it may be entitled.
(f) Amendments. This Stock Option Agreement may not be modified, amended,
altered or supplemented except upon the execution and delivery of a written
agreement executed by Grantee and Issuer.
(g) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to be
sufficient if contained in a written instrument and shall be deemed given if
delivered personally, telecopied, sent by nationally-recognized, overnight
courier or mailed by registered or
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certified mail (return receipt requested), postage prepaid, to the other party
at the following addresses (or such other address for a party as shall be
specified by like notice):
If to Grantee:
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: General Counsel
and
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Treasurer
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
Xxx Xxxxxxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx
00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxx
If to Issuer:
Level One Communications,
Incorporated
0000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Telecopier: 000-000-0000
Attention: Xx. Xxxxxx X. Xxxxxx
with a copy to:
Xxxxxx & Xxxxx LLP
000 Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
(h) Headings. The headings contained in this Stock Option Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Stock Option Agreement.
(i) Counterparts. This Stock Option Agreement may be executed in one or
more counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
(j) Governing Law/Jurisdiction/Venue. Governing Law and Venue; Waiver of
Jury Trial.
(1) THIS STOCK OPTION AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL
RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH
THE LAW OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES THEREOF. The parties hereby irrevocably submit to the jurisdiction of
the courts of the State of Delaware and the Federal courts of the United States
of America located in the State of Delaware solely in respect of the
interpretation and enforcement of the provisions of this Stock Option
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Agreement and of the documents referred to in this Stock Option Agreement, and
in respect of the transactions contemplated hereby, and hereby waive, and agree
not to assert, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof or of any such document, that it is not
subject thereto or that such action, suit or proceeding may not be brought or is
not maintainable in said courts or that the venue thereof may not be appropriate
or that this Stock Option Agreement or any such document may not be enforced in
or by such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined in such a
Delaware State or Federal court. The parties hereby consent to and grant any
such court jurisdiction over the person of such parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
12(g) or in such other manner as may be permitted by Applicable Law, shall be
valid and sufficient service thereof.
(2) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS STOCK OPTION AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN INDUCED
TO ENTER INTO THIS STOCK OPTION AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS
AND CERTIFICATIONS IN THIS SECTION 12(i).
(k) Entire Agreement. This Stock Option Agreement and the Merger Agreement,
and any documents and instruments referred to herein and therein, constitute the
entire agreement between the parties hereto and thereto with respect to the
subject matter hereof and thereof and supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof and thereof. Nothing in this Stock Option Agreement shall
be construed to give any person other than the parties to this Stock Option
Agreement or their respective successors or permitted assigns any legal or
equitable right, remedy or claim under or in respect of this Stock Option
Agreement or any provision contained herein.
(l) Expenses. Except as otherwise provided in this Stock Option Agreement,
each party shall pay its own expenses incurred in connection with this Stock
Option Agreement and the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties have caused this Stock Option Agreement to
be signed by their respective officers thereunto duly authorized as of the date
first written above.
INTEL CORPORATION
By: /s/ XXXXXX XXXXXXX
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President and Treasurer
Date: March 4, 1999
LEVEL ONE COMMUNICATIONS, INCORPORATED
By: /s/ XX. XXXXXX X. XXXXXX
-----------------------------------------
Name: Xx. Xxxxxx X. Xxxxxx
Title: President & Chief Executive
Officer
Date: March 4, 1999
[SIGNATURE PAGE TO INTEL CORPORATION/LEVEL ONE COMMUNICATIONS, INCORPORATED
STOCK OPTION AGREEMENT]
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