EXHIBIT 2.02
AGREEMENT CONCERNING DEFERRED CLOSINGS
AGREEMENT, dated as of August 13, 1999, by and between Xxxxxx Corporation,
a Delaware corporation ("Xxxxxx") and Intersil Corporation, a Delaware
corporation ("Buyer"). Capitalized terms used but not defined herein shall have
the same meaning as specified in that certain Amended and Restated Master
Transaction Agreement (`Master Agreement") dated as of June 2, 1999, among
Harris, Buyer and Intersil Holding Corporation, a Delaware corporation.
WHEREAS, The Master Agreement provides for the sale by Sellers and the
purchase by Buyer of the Transferred Assets;
WHEREAS, Transfer of title to the Transferred Assets of Xxxxxx
Semiconductor GmbH (Germany), the Transferred Assets of Xxxxxx Semiconductor
S.A. (Belgium), the Transferred Assets of Xxxxxx Semiconductor Design and Sales
pte. Ltd. (Singapore), and the shares of stock of Xxxxxx Semiconductor (Taiwan)
Ltd. and Xxxxxx Semiconductor Y.H. (Korea), (the "Deferred Closing Assets") may
be delayed by the inability of the parties to obtain necessary governmental
approvals of or consents to such transfers by the Closing Date;
WHEREAS, The parties desire to proceed with the Closing and transfer
equitable ownership to the Deferred Closing Assets on the Closing Date and to
transfer legal title to the Deferred Closing Assets as soon as practicable
thereafter;
NOW, THEREFORE, in consideration of the mutual promises herein and in the
Master Agreement, the parties hereto agree as follows:
1. Transfer of Equitable Ownership of Deferred Closing Assets. Until such
time as such Deferred Closing Assets may be properly assigned to Buyer, such
Deferred Closing Assets shall be held by Sellers in trust for Buyer and the
covenants and obligations thereunder shall be performed by Buyer in the name of
Sellers and all benefits and obligations existing thereunder shall be for the
account of Buyer. During such period, Xxxxxx shall take or shall cause Sellers
to take, such action in its name or otherwise, as Buyer may reasonably request,
at Buyer's expense, so as to provide Buyer with the benefits of the Deferred
Closing Assets and to effect collection of money or other consideration to
become due and payable under the Deferred Closing Assets, and Xxxxxx shall
promptly pay, or shall cause Sellers to promptly pay, to Buyer all money or
other consideration received by them (or their Affiliates) in respect of all
Deferred Closing Assets. Following the Closing, Xxxxxx authorizes Buyer, to the
extent permitted by Applicable Law and the terms of the Deferred Closing Assets,
at Buyer's expense, to perform all of the obligations and receive all of the
benefits under the Deferred Closing Assets and appoints Buyer their
attorney-in-fact to act in their name on its behalf (and on behalf of its
Affiliates) with respect thereto.
2. No Transfer if Prohibited. Notwithstanding anything in this Agreement to
the contrary, this Agreement shall not constitute an agreement by Xxxxxx to
assign or delegate, or by Buyer to assume and agree to pay, perform or otherwise
discharge, any Deferred Closing Asset if an attempted assignment, delegation or
assumption thereof without the consent of a third Person (including, without
limitation, any Governmental Authority) thereto would constitute a breach
thereof, unless and until such consent is obtained.
3. Transfer of Legal Title to Deferred Closing Assets. Xxxxxx and Buyer
shall use Best Efforts to obtain, as soon as practicable, all Governmental
Approvals necessary for the transfer of each of the Deferred Closing Assets, and
Xxxxxx shall transfer, or shall cause Sellers to transfer, legal title to each
of the Deferred Closing Assets to Buyer, or one or more Subsidiaries of Buyer,
as soon as practicable after the Closing Date, provided that Xxxxxx and Sellers
shall have completed the transfer of all of the Deferred Closing Assets within
180 days of the Closing Date. The date of transfer of legal title to a Deferred
Closing Asset is referred to herein as an "Actual Closing Date."
4. Delivery of Closing Documents. On each Actual Closing Date, instruments
conveying title to the applicable Deferred Closing Asset, reasonably
satisfactory in form and substance to Buyer, shall be delivered to Buyer, or to
one or more Subsidiaries of Buyer, as Buyer shall designate.
5. Purchase Price; Closing and Final Closing Balance Sheets.
Notwithstanding the existence of the Deferred Closing Assets, the portion of the
Purchase Price allocable to the Deferred Closing Assets shall be paid on the
Closing Date as provided in Section 3.13 of the Purchase Agreement.
6. Incorporation by Reference. The provisions of Exhibits A and B of the
Master Agreement are incorporated herein by reference.
IN WITNESS WHEREOF, Xxxxxx and Buyer have caused this
Agreement to be duly executed and delivered in their respective names, all as of
the day and year first above written.
XXXXXX CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
INTERSIL CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: CEO
