AGREEMENT of SALE
Exhibit 10
Agere Systems Inc., with offices at 0000 Xxxxxxxx Xxxxxxx, XX, Xxxxxxxxx, XX, 00000 (“Agere” or
“Company”) agrees to sell and AG Semi-Conductor Limited (“AGSCL”), with offices at c/o Ogier
Fiduciary Services (Cayman) Limited, Queensgate House, PO Box 1234GT, Xxxxxx Town, Grand Cayman,
Cayman Islands, Maxim/Dallas Direct, Inc. (“Maxim”), with offices at 000 Xxx Xxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000, and Texas Instruments Incorporated (“TI”; AGSCL, Maxim and TI
hereinafter collectively referred to as Buyers or individually as a “Buyer”), with offices at 13588
North Central Expressway, MS 3742, Xxxxxx, XX 00000, agree to buy the Equipment listed on
Exhibit A attached hereto and made a part hereof pursuant to the terms and conditions set
forth below. It is understood and agreed that (i) the Company will sell to AGSCL and AGSCL will
buy from the Company the portion of the Equipment (the “AGSCL Equipment”) listed on Exhibit
B to be attached hereto and made a part hereof, (ii) the Company will sell to Maxim and Maxim
will buy from the Company the portion of the Equipment (the “Maxim Equipment”) listed on
Exhibit C to be attached hereto and made a part hereof and (iii) the Company will sell to
TI and TI will buy from the Company the portion of the Equipment (the “TI Equipment”) listed on
Exhibit D to be attached hereto and made a part hereof. Exhibits B, C and
D are hereinafter referred to as the “Equipment Exhibits”. AGSCL will deliver the
Equipment Exhibits to Company within one business day after the full mutual execution and delivery
of this Agreement. The term “Equipment” includes the enumerated equipment and various listed
spares and all non-DTagged spare parts not listed on Exhibit A but associated with the
Equipment listed on Exhibit A (it being agreed that all spare pumps at Company’s Orlando,
FL facility not listed on Exhibit A will remain the property of Company), to the extent
that such associated spare parts have not been used by Company prior to release of the applicable
Equipment to Buyers, all basic operating software except as specifically set forth herein,
passwords, manuals and all other operating and maintenance documentation associated therewith to
the extent same is in the possession or control of Company. Commodity type items that are common
to all equipment such as pumps, chillers, etc. are not included in the purchase price stated in
this Agreement unless identified on the Exhibits hereto or otherwise agreed to by the applicable
Buyer and Company in writing. This Agreement will not be effective unless and until it is executed
and delivered by all of the parties hereto.
ACCEPTANCE
Buyers have been informed that the Equipment may have been used in research and development,
manufacturing or other production processes and may have contained, come in contact with, or
otherwise may have been exposed to hazardous substances. Prior to delivery of possession to
Buyers, the Equipment will have been cleaned in place to meet standards to allow for transportation
of the Equipment under a non-hazardous material U.S. Department of Transportation specification,
but residual contamination may remain in or on the Equipment. Buyers and the Company hereby
expressly acknowledge that Buyers have heretofore made a full and complete inspection of (or will
have had a reasonable opportunity to inspect) their respective portions of the Equipment and have
been, or will be, provided with any applicable reports or documentation regarding the Equipment and
cleaning process.
ASSIGNMENT
This Agreement is not assignable by Buyers or Company without the express written consent of the
Buyers, in respect of a proposed assignment by Company, and of Company, in respect of a proposed
assignment by a Buyer. Any attempted assignment without such consent shall be null and void and
shall constitute a default of this Agreement. Notwithstanding anything contained in this Agreement
to the contrary, AGSCL may freely assign this Agreement to an entity controlled by Xxxxxx, Xxxxxx &
Co., L.P. In the event of any such assignment, AGSCL will notify Company accordingly and the
assignee will be deemed to have assumed all obligations and responsibilities of the assignor
hereunder.
BULK
SALES
Buyers hereby waive compliance by Company and any Subsidiary of Company with the requirements and
provisions of any “bulk-transfer” laws of any jurisdiction, including, without limitation, Article
6 of the New York and the Florida Uniform Commercial Code, that may otherwise be applicable with
respect to the sale of any or all of the Equipment to Buyers. The Company represents and warrants
that the Equipment does not constitute all or substantially all of the assets of the Company and
Company agrees to indemnify, defend and hold Buyers harmless from and against any and all
liability, cost, loss or expense of any kind or nature (including, without limitation, reasonable
attorneys’ fees and disbursements) incurred by any Buyer by reason of the operation of any such
“bulk transfer” laws.
BUYER
EMPLOYEES
The term “Buyer Employee” means anyone performing work on behalf of or furnished by a Buyer under
this Agreement to perform work at Company including but not limited to such Buyer’s employees,
consultants, representatives, agents, clients, customers, subcontractors, and subcontractors’
subcontractors at all tiers. The parties agree that all persons provided by a Buyer or through a
Buyer to perform work are not employees or agents of Company, and Company shall not exercise any
direct control or supervision over any Buyer’s Employees, although Company’s representatives shall
be available for consultation.
Each Buyer shall be responsible for its own labor relations with any trade organization or union
which represents its employees and shall be responsible for negotiating and adjusting all disputes.
Each Buyer shall be the sole entity responsible for receiving complaints from such Buyer’s
Employees regarding their assignments and for notifying such Buyer’s Employees of the termination
of or change of their assignments. Company has the right at any time (prior to and after
assignment of any work) to reject or have a Buyer remove such Buyer Employee(s) from the work under
this Agreement upon notice to such Buyer. Upon such notice, such Buyer shall, at Company’s
request, replace such Buyer employee(s). Each Buyer shall indemnify and save harmless Company and
each other Buyer harmless from and against all losses, damages, claims, demands, suits, and
liabilities that arise out of, or result from, any failure by such Buyer or its employees to
perform their obligations under this Section. Each Buyer shall also indemnify and save harmless
Company and each other Buyer harmless from any entitlement, assertion, or claim, which any of such
Buyer’s Employees might have or might make relative to rights or privileges in any Company employee
benefit plan and which arise, in whole or in part, out of work rendered under this Agreement.
Each of the parties hereto shall be responsible for any Worker’s Compensation claims made by its
employees or agents. Each party shall also be responsible for any injuries or damage to personal
property caused by such party’s employees or agents in connection with the transactions
contemplated under this Agreement.
BUYER’S
INFORMATION
No specifications, drawings, sketches, models, samples, tools, computer or other apparatus
programs, technical or business information or data, written, oral or otherwise, furnished by any
Buyer to Company under this Agreement or an order or in contemplation of this Agreement or an order
shall be considered by such Buyer to be confidential or proprietary.
CHOICE
OF LAW
The construction, interpretation and performance of this Agreement and all transactions under it
shall be governed by the laws of the State of New York, USA, excluding its choice of law
provisions. The UN Convention on Contracts for the International Sale of Goods is hereby expressly
excluded.
COMPLIANCE
WITH LAWS AND INDEMNIFICATION
The Company shall comply and each Buyer and all persons furnished by such Buyer shall comply, after
the transfer of title of the applicable portion of the Equipment to such Buyer, with all federal,
state, and local laws, ordinances, regulations, and codes, including import and export laws and
regulations of any relevant jurisdiction, identification and procurement of required permits,
certificates and inspections including those related to labor standards, and environmental, health
and safety (“Legal Requirements”), in performance under this Agreement and in operation and use of
the Equipment. Each party agrees to indemnify, defend and hold harmless the others and their
affiliates and subsidiaries and their respective directors, officers, employees, and agents
(hereinafter collectively
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“Indemnified Parties”), harmless from and against any and all claims, judgments, damages,
penalties, fines, costs, liabilities or loss, including attorney’s fees, consultant fees and expert
fees, to the extent arising out of or in connection with the use of the Equipment by the
indemnifying party, including by way of example and not in limitation of the generality of the
foregoing, compliance with any and all Legal Requirements; provided, however, that each Buyer’s
obligations to indemnify the other parties pursuant to this Agreement shall apply only with respect
to claims arising after transfer of title of the applicable portion of the Equipment to such Buyer
and provided, further, that no Buyer shall be liable to Company or to any other Buyer with respect
to claims arising out of Company’s use of such Buyer’s Equipment as provided in the section of the
Agreement entitled “Representations, Warranties and Covenants of Company, subsection 5”. If any
loss or damage is attributable to both a party from whom indemnification is sought (an
“Indemnifying Party”) and any of the Indemnified Party(ies), each Indemnifying Party agrees,
without regard to any concurrent or other negligence by any of the Indemnified Party(ies), to
provide the Indemnified Party(ies) with comparative indemnification for that portion of the loss or
damage which is attributable to the Indemnifying Party or the Indemnifying Party’s officers,
directors, employees, contractors, subcontractors or agents. Notwithstanding anything to the
contrary, this provision shall survive the termination or expiration of this Agreement.
Any Indemnified Party seeking indemnity under this Agreement shall promptly notify the Indemnifying
Party from whom such indemnity is sought in writing of any claim and provide the Indemnifying Party
the facts and related documents constituting the basis for such claim. The failure by an
Indemnified Party to timely furnish to the Indemnifying Party any notice or copy required to be
furnished under this section shall not relieve the Indemnifying Party from any responsibility for
the matters relating to such notice or copy, except to the extent such failure materially and
adversely prejudices the ability of the Indemnifying Party to defend such matter. The Indemnified
Party will reasonably cooperate with the Indemnifying Party (at the Indemnifying Party’s expense)
in the defense of any claim for which indemnification is sought hereunder, and the Indemnifying
Party will have the right to select its own counsel and control such defense. If the Indemnified
Party wishes to participate in the investigation, defense or settlement of any such claim, or any
appeal arising therefrom, the Indemnified Party may do so at the Indemnified Party’s own cost and
expense, using counsel selected by the Indemnified Party. So long as the Indemnifying Party is
defending any claim, the Indemnified Party will not settle, compromise or offer to settle or
compromise such claim without the prior written consent of the Indemnifying Party, unless the
Indemnifying Party is thereby completely released. If the Indemnified Party settles or compromises
any claim without the prior written consent of the Indemnifying Party and the Indemnifying Party is
not completely released thereby, then the Indemnifying Party shall be relieved of any
responsibility to further indemnify the Indemnified Party with respect to such claim.
Buyers understand that various treaties, laws and regulations govern the transportation and
shipment of refrigerants and ozone depleting substances both within the United States and
internationally. With respect to any Equipment with refrigerants or ozone depleting substances
still contained therein, each Buyer agrees to comply with all such treaties, laws, and regulations
with respect to such Buyer’s Equipment and to hold harmless and fully indemnify Company for any
violation thereof, and provided that Company has fulfilled its Decontamination responsibilities
with respect to refrigerants and ozone depleting substances, as set forth in this Agreement.
CONFIDENTIALITY
The terms of this Agreement are confidential and will be treated as confidential by all parties.
Any party may disclose this Agreement or any of its terms if it is the subject of a subpoena or
other legal demand for disclosure, in which case the party required to disclose such information
shall give the other parties prompt written notice thereof and provide reasonable cooperation to
the other parties should the other party wish to oppose such disclosure or secure an appropriate
protective order. Any party may disclose the terms of this Agreement if required by law or
regulation. Company shall not disclose to any Buyer the substance and/or content of the Equipment
Exhibits to this Agreement that pertain to any other Buyer, unless required by law or regulation.
Each Buyer acknowledges that its on-site representatives may have the opportunity to view the
Equipment and related materials purchased by other Buyers.
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DELIVERY
Delivery shall take place at Company’s premises located at 0000 Xxxxx Xxxx Xxxxx Xxxxxxx, Xxxxxxx,
Xxxxxxx. Packaging and/or crating, and transportation costs for each Buyer’s portion of the
Equipment will be the responsibility of the respective Buyer unless stated otherwise in writing
herein. Each Buyer intends to export its respective portion of the Equipment from the State of
Florida prior to such Buyer’s use or resale of such Equipment. Buyers hereby agree that from and
after the transfer of title to each Buyer of its portion of the Equipment, such Buyer’s Equipment
will be irrevocably committed to the process of exportation from the State of Florida and the
process of exportation shall remain continuous and unbroken until such Equipment is actually
exported from the State of Florida. In furtherance of the foregoing, upon removal of the Equipment
from Company’s facility, all Equipment will be immediately delivered to a licensed customs broker
or forwarding agent for final and certain movement of the Equipment outside the State of Florida.
DETERMINATION
OF COUNT AND CLASSIFICATION
At the time of shipment, each Buyer or such Buyer’s representative shall have the privilege of
checking Company’s determination of count and classification of such Buyer’s portion of the
Equipment. If such Buyer’s determination differs from Company’s, a determination of count and
classification shall be reached by mutual agreement before the Equipment is shipped. If such Buyer
or such Buyer’s representative fails to make a check at the time of shipment, Company’s
determination of count and classification shall control.
DISCLAIMER
OF WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE EQUIPMENT SOLD UNDER THIS AGREEMENT IS SOLD AS
USED OR SURPLUS EQUIPMENT AND IS SOLD “AS IS — WHERE IS” WITH ALL FAULTS, LATENT AND PATENT.
EXCEPT FOR WARRANTY OF TITLE AND AS OTHERWISE PROVIDED IN THIS AGREEMENT, COMPANY MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR WARRANTY OF NON-INFRINGEMENT. EXCEPT FOR WARRANTY OF TITLE, ALL WARRANTIES,
WHETHER IMPLIED BY CONTRACT OR LAW OR OTHERWISE, ARE HEREBY EXPRESSLY WAIVED AND EXCLUDED.
ENTIRE
AGREEMENT
This Agreement constitutes a binding contract when signed, acknowledged, or otherwise accepted by
all parties. The terms and conditions of this Agreement supersede all prior oral or written
understandings between the parties and constitute the entire agreement among the parties. No terms
or conditions contained in any purchase order or other form originated by any Buyer shall apply.
Any reference to a Buyer’s purchase order shall be for such Buyer’s convenience only, and no
changes or additions to this Agreement shall be binding upon Company unless signed by an authorized
Company representative. This Agreement may be executed in multiple counterparts all of which
together shall constitute a single agreement.
EXPORTS
Each Buyer will be responsible for complying with any and all laws and regulations of the United
States relating to the export of such Buyer’s portion of the Equipment, including, but not limited
to, the Foreign Trade Statistics Regulations (Title 15 U.S.C.F.R., Part 30.1 et seq.), the U.S.
Export Administration Regulations (Title 15 U.S.C.F.R., Part 730 et seq.) and U.S. trade sanctions
regulations (Title 31 U.S.C.F.R., Part 500 et seq.). Each Buyer shall be responsible for
determining if an export license or a deemed export license is required for any of such Buyer’s
portion of the Equipment. Each Buyer acknowledges that an export license or deemed export license
may be required before such Buyer’s inspection of Equipment. Each Buyer shall indemnify, save, and
hold Company harmless for any failure to obtain any required license. Each Buyer is responsible
for the filing of all export documentation, including, but not limited to the Shipper’s Export
Declaration (SED) or Automated Export System (AES) record, where required.
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EXTRACTION
Subject to full payment being received by Company, each Buyer has the right and obligation to
remove the released item(s) purchased from Company premises prior to April 1, 2006 (the “Extraction
End Date”) in an orderly manner, unless otherwise mutually agreed upon in writing, by themselves or
their representatives, under the following guidelines:
| (1) | each individual designated by a Buyer to enter Company’s facility to perform work at Company’s facility (each, a “Buyer’s Agent”) must be approved by Company Treasury Site Coordinator (and Company agrees that Company Treasury Site Coordinator has approved Xxxxx Xxxxxxx) and receive certain Company site safety training; | ||
| (2) | each Buyer’s Agent must participate and comply with Company’s site safety, craftsmanship, and behavior rules, (which rules Agere agrees shall reasonably conform to industry standard practices) copies of which will be furnished to Buyers prior to Extraction; | ||
| (3) | each Buyer’s Agent must participate and comply with the extraction schedule mutually agreed to by each Buyer and Agere for such Buyer’s portion of the Equipment; | ||
| (4) | AGSCL will serve as the sole Buyer point of contact with Agere Treasury Site Coordinator and other Agere personnel to meet the Extraction End Date, provided, however, that if any Buyer feels that such coordination by AGSCL is not satisfactory, such Buyer may coordinate directly with the Agere Treasury Site Coordinator or other Agere personnel; subject to the foregoing, each Buyer shall coordinate its respective Extraction activities, schedules and requests solely through AGSCL; and | ||
| (5) | each Buyer’s Agent must use its own tools and equipment when extracting such Buyer’s Equipment from Agere’s facility. |
If a Buyer’s Agent is approved and then fails to comply with any of the above rules or guidelines
in any material respect, Company will provide the applicable Buyer with written notice, and a five
(5) business day opportunity to cure such alleged failure, including obtaining Company’s approval
of an alternate Buyer’s Agent, which shall not be unreasonably withheld. If such Buyer is unable
to demonstrate an ability to cure such alleged failure, Company reserves the right to refuse such
Buyer’s Agent access to such Buyer’s Equipment, and on not less than ten (10) business days’
advance written notice extract, and/or warehouse them at such Buyer’s reasonable expense, provided
that any such extraction and/or warehousing by Company will be done in accordance with customary
semiconductor manufacturing industry methods and standards of care.
Notwithstanding anything to the contrary contained herein, if any Buyer does not remove its
respective portion of the Equipment on or before the Extraction End Date, Company shall have the
right, upon ten (10) business days advance written notice to the applicable Buyer, to (a) remove
such Equipment and store it in a location selected by Company and reasonably acceptable to such
Buyer (and if such Buyer does not reasonably agree to a location selected by Company, Company will
nevertheless have the right to store such equipment at a location reasonably selected by Company)
at such Buyer’s risk and expense provided that Company will use customary semiconductor
manufacturing industry methods and standards of care in connection therewith, or (b) ship the
material to such Buyer or such Buyer’s designee at such Buyer’s risk and expense using a shipping
company selected by Company and reasonably acceptable to such Buyer (and if such Buyer does not
reasonably agree to a shipping company selected by Company, Company will nevertheless have the
right to use a shipping company reasonably selected by Company), provided that any such removal or
shipping by Company will be done in accordance with customary semiconductor manufacturing industry
methods and standards of care.
If Company has failed to meet its Extraction obligations under this Agreement to any Buyer
(including, without limitation, Company’s Decontamination and/or Disconnection obligations), such
Buyer may provide Company with written notice of such failure (the “failure notice”), noting the
period of time in which Company has failed to meet such Extraction obligations (the “failure
period”). Upon receipt of the failure notice, Company will extend the Extraction End Date for such
period as is necessary to give such Buyer the opportunity to remove such Buyer’s Equipment from
Company’s Orlando, FL site in an orderly fashion, not to exceed the failure period. Company will
use reasonable commercial efforts to
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meet each Buyer’s extraction schedule as communicated to and managed by such Buyers’ Agent and in
accordance with Company’s decontamination and disconnection schedule.
EXTRACTION TERMS: The responsibilities by each party for these activities relative to the
sale are specified below. However, should Company determine that a Buyer has not or is not
fulfilling its Extraction obligations in any material respect, Company will provide such
Buyer with written notice of its Extraction obligations (the “Extraction Notice”). Ten (10)
days after the Extraction Notice, Company may assume such Buyer’s Extraction obligations
(e.g. Stabilization, Internal Transport, etc. as defined below) at such Buyer’s risk and
reasonable expense.
Decontamination:
Decontamination consists of removing all hazards associated with the Equipment, including,
but not limited to chemicals, gases, radioactive materials and refrigerants (other than with
respect to the Maxim Equipment). Hazards include any hazardous gases or chemicals used in
conjunction with the Equipment or process-related ancillary Equipment (such as pumps or vent
lines). Agere shall be responsible, at Agere’s expense, for removing such hazards (other
than refrigerants with respect to the Maxim Equipment) and performing such Decontamination
in accordance with Agere, local, state, federal and other governmental requirements, OEM
procedures, SEMI standard 012-0248, as modified in accordance with Agere’s Orlando
Decontamination Procedures Memorandum, dated August 16, 2005, and to meet all standards to
allow for transportation of the Equipment as a non-hazardous material under U.S. Department
of Transportation specifications. Decontamination will occur prior to Disconnection.
However, any additional hazards discovered during Disconnection (e.g., liquids and chemical
residues in traps, chemical residues in pipes or valve openings, or surface residues, etc.)
shall be addressed as set forth above, with such steps included as part of the definition of
full Decontamination for the Equipment. Specifically, Agere will be responsible for
Decontamination of all pumps and all associated costs. Agere shall not be responsible for
any work or costs associated with the re-assembly or refurbishing of the pumps, (i.e., each
Buyer will be responsible for the work and/or costs of reassembly and/or refurbishing of the
pumps being bought by such Buyer). Buyers shall have the right to select one or more
contractors to perform the reassembly and refurbishing of the Equipment (including the
pumps). Buyers will be permitted to introduce other potential Decontamination suppliers to
Agere for consideration. However, the roles and responsibilities established above shall
still prevail. If such other potential Decontamination supplier (i) is qualified to perform
Agere’s Decontamination work, (ii) can meet the Decontamination schedule to be established
under this Agreement, (iii) is cost effective for Agere and (iv) is otherwise reasonably
acceptable to Agere, then Agere will agree to use such other potential Decontamination
supplier.
Disconnection:
Disconnection consists of (w) powering down the Equipment, (x) disconnecting same from power
supplies, (y) separating facility services from the Equipment and (z) leaving the Equipment
in a safe energy state with respect to all hazardous energies, in each case, in substantial
accordance with OEM specifications so as to (i) avoid damage to the Equipment and (ii) to
maintain the value, functionality and integrity of the Equipment. Agere shall perform
Disconnection on all Equipment at its own expense, at its own risk and in substantial
accordance with OEM specifications (including, without limitation, recordkeeping
requirements). Services that may need to be disconnected include: compressed air, exhausts,
vacuum, lab air, nitrogen, hydrogen, silane, phosphine, other toxic gases, electricity,
building control systems, fire detection, lab waste, sanitary drains, and hot/cold water,
etc. Plant regulators or valves shall not be included with the Equipment unless provided by
the original equipment manufacturer (OEM). Some Equipment may require Stabilization before
Disconnection by Agere. In these circumstances, Buyer will be responsible for the
Stabilization of the Equipment and any associated cost.
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Agere shall provide written notification (“Equipment Release Documentation”) to each Buyer
upon completion of Agere’s Decontamination and Disconnection obligations with respect to
such Buyer’s Equipment or portions thereof and shall deliver to each Buyer an “Order Packing
Slip” in the form of Exhibit G attached hereto. Equipment Release Documentation
consists of: (a) an orange Equipment Release Form, which includes identification of all
known remaining potential hazards, including chemical names, and attached to each piece of
Equipment for which Decontamination is required and in the form of Exhibit H
attached hereto and (b) a Hazards Notification Form, in the form of Exhibit I
attached hereto, provided with the Order Packing Slip, for each portion of the Equipment.
Agere shall provide a single Material Data Safety Sheet (MSDS) for each hazardous chemical
identified in the set Equipment Release Documentation.
Agere will keep AGSCL’s Buyer’s Agent apprised (and AGSCL’s Buyer’s Agent will accordingly
apprise each Buyer) of daily Decontamination and Disconnection activities and will permit
each Buyer to have a qualified engineer observe the Decontamination and Disconnection
process (except in respect of any Decontamination and Disconnection that has occurred prior
to the date of this Agreement) in accordance with the overall Extraction schedule, which
schedule is subject to change.
Within ten (10) days after such Buyer’s receipt of Equipment Release Documentation, each
Buyer will either: (1) notify Agere in writing that Agere has not fulfilled its
Decontamination and Disconnection obligations under the terms of this Agreement (in which
case, Agere will promptly fulfill its Decontamination and Disconnection obligations under
the terms of this Agreement); or (2) provide written notice (by execution of the Order
Packing Slip) that it accepts its Equipment in its present condition (and if any Buyer fails
to deliver such notice within such ten (10) day period, such Buyer will be deemed to have
given such acceptance notice under clause (2)). Upon such written acceptance notice,
subject to the terms of this Agreement, such Buyer will accept full and complete
responsibility for the future use and operation of such Equipment, except for any damage to
the Equipment resulting from a gross deviation from the standard established for the
Decontamination and Disconnection work that is discovered by a Buyer within 30 days after
shipment from Agere’s facility, in which case Agere will be responsible for remedying the
damage to the Equipment caused by such gross deviation.
Stabilization:
Stabilization consists of locking down, caging, or otherwise securing the Equipment’s moving
or fragile parts and sub-components. The intent is to ensure that no damage occurs to the
Equipment during Internal Transport, Crating, or Shipping. Stabilization shall be the
responsibility of the applicable Buyer and such Buyer will determine which items on its
portion of the Equipment require Stabilization. However, each Buyer shall furnish Agere
with a list of items that such Buyer determines require Stabilization and schedules to
complete the work. Company will not attempt to Disconnect or Extract Equipment that a Buyer
has identified as requiring Stabilization. All costs associated with Stabilization shall be
the responsibility of the applicable Buyer, including but not limited to, the purchase of
locking and caging kits. When the Equipment is stationed in an operational manufacturing
area, the applicable Buyer shall keep the Stabilization process to a reasonable, minimum
level. The intent is to ensure protection of the Equipment during Internal Transport but
minimize the impact on the ongoing manufacturing operation. The remainder of the
Stabilization shall occur after the Internal Transport process just prior to Crating. Any
tools required by the Buyer to complete Stabilization shall be provided by the applicable
Buyer. Company will provide to Buyers any ship kits ordered by Company in respect of the
Equipment at no additional cost to Buyers. Company has ordered the ship kits listed on
Exhibit N attached hereto. Any additional ship kits not initially ordered by Agere
but later required for equipment extraction, will be paid by the Buyers.
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Internal Transport:
Internal Transport consists of adequately palletizing, wrapping, or banding of the Equipment
to safely and securely transport it to Agere’s designated shipping dock. Equipment shall be
transported from its original location to Agere’s shipping dock in accordance with Agere’s
personnel and plant rules. AGSCL shall be responsible for arranging and coordinating
Internal Transport of the Equipment, provided that if any Buyer determines that AGSCL is not
performing such responsibilities in a reasonably satisfactory manner, and such matter is not
resolved within three (3) business days after notice to AGSCL and Agere, then such Buyer may
coordinate directly with Agere. Each Buyer will be responsible for the portion of the
reasonable Internal Transport costs associated with such Buyer’s Equipment and each Buyer
will pay such costs within five days after AGSCL’s written request therefor. Any building
or facility modifications required to support Internal Transporting must be approved in
writing by the Agere Treasury Site Coordinator and shall be conducted by the applicable
Buyer at such Buyer’s risk and expense. Any such building or facility modifications shall,
if requested by Agere, be restored by the applicable Buyer(s) to substantially the condition
that existed prior to the making of such modifications or, with respect to holes created in
existing walls, by covering such holes with “Visqueen” plastic sheeting. Each Buyer will
pay directly to applicable third parties the expenses for which such Buyer is responsible,
however if one Buyer pays a third party for another Buyer’s expense, then the responsible
Buyer will promptly reimburse the Buyer that paid such expense on its behalf.
Dismantling:
Dismantling consists of the labeling and disconnecting of Equipment intra-connects, and
breaking down the Equipment into smaller components suitable for Crating and Shipping. Each
Buyer shall be responsible for Dismantling its portion of the Equipment and its costs
associated therewith.
Crating:
Crating consists of packaging the Equipment for safe transportation. Each Buyer shall be
responsible for completing any Stabilization and Crating of its portion of the Equipment
within a timely manner after Internal Transport occurs. All work and costs associated with
Crating are the responsibility of the applicable Buyer. If Agere determines that a Buyer’s
Crating operation in the Agere furnished facility is not on schedule, Agere may assume the
Crating operation of such Buyer’s Equipment or require such Buyer to perform Crating at a
non-Agere facility, or remove the items to an offsite warehouse. Prior to assuming such
Crating operation, Company will provide the applicable Buyer with five (5) days written
notice of its intent to assume Crating operations (the “crating notice period”). Following
the crating notice period, any such Crating actions taken by Company will be at the
applicable Buyer’s risk and reasonable expense.
Loading:
Loading consists of placing the Crated Equipment onto a Buyer’s carrier’s trucks or other
vehicles of transportation. Each Buyer shall be responsible for Loading its portion of the
Equipment and its costs associated therewith. Should it be necessary that any Loading be
done by Agere, it shall be done at the applicable Buyers risk following reasonable notice by
Company to the applicable Buyer.
Shipping:
Shipping consists of transporting the Equipment safely to its ultimate destination for use
by the applicable Buyer. All aspects and costs associated with Shipping are the
responsibility of the applicable Buyer with respect to its portion of the Equipment. This
includes the preparation of any documentation or any export matter.
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FORCE MAJEURE
Neither any Buyer nor Company shall be liable for any loss, damage, or delay to the extent caused
by strikes, picketing, labor disturbances (except such labor disturbances involving such party’s
own employees), riots, fires, insurrection, or the elements, embargoes, failure of carriers,
inability to obtain facilities, Government Regulations or requirements, acts of God or the public
enemy, or any cause beyond its control whether or not similar to the foregoing.
IDENTIFICATION
No identification or simulation thereof of Agere Systems Inc., or its affiliated companies
(“affiliates”), references to Company and its customers or references to codes, drawings or
specifications of Company or its affiliates will be used in any of any Buyer’s written advertising
or written promotional efforts without Company’s prior written permission; provided that any Buyer
can identify the Company as the source of the Equipment to prospective purchasers. This clause
does not modify the USE OF INFORMATION clause.
INFRINGEMENT
The purchase of the Equipment under this Agreement does not convey by implication or otherwise any
licenses under any patent, trademark, copyright, trade secret or other proprietary interest,
domestic or foreign. Company makes no representation or warranty that the use of any Equipment,
material, program, documentation or technical information furnished under this Agreement will not
infringe or misuse any patents, trademarks, copyrights, trade secrets, or other proprietary
interests of any third party, and it shall be each Buyer’s sole responsibility to make such
determination as is necessary with respect to the acquisition of licenses or other rights under
patents or with respect to other rights of third parties, including rights to programs and
documentation. Company shall not be held to any liability with respect to any claim made by any
third party on account of, or arising from the use of such Equipment, material, program,
documentation, or technical information. Each Buyer agrees to indemnify and save harmless Company
from and against any and all judgments, damages, penalties, fines, costs, expenses, liabilities,
and claims (including attorney’s fees) for such Buyer’s infringement or misuse of any patents,
trademarks, copyrights, trade secrets, or other proprietary interests in any foreign country or in
the U.S.A. However, no Buyer shall have any liability to Company for claims of infringement or
misuse directly arising from a claim that Company breached an express obligation to any third
party.
INSURANCE
Upon transfer of title of Equipment to a Buyer, such Buyer will be responsible for providing
property insurance covering requirements for all losses and damages related to its portion of the
Equipment.
In addition, each Buyer shall maintain and cause such Buyer’s subcontractors to maintain: (1)
Workers’ Compensation insurance as prescribed by the law of the state or nation in which the
extraction is performed; (2) employer’s liability insurance with limits of at least $500,000 for
each occurrence; (3) automobile liability insurance, if the use of motor vehicles is required, with
limits of at least $1,000,000 combined single limit for bodily injury and property damage per
occurrence; (4) Commercial General Liability (‘CGL’) insurance, ISO 1988 or other occurrence form
of insurance, including Broad Form Property Damage, with limits of at least $5,000,000 combined
single limit for bodily injury and property damage per occurrence, including coverage for products
liability and premises-completed operations.
All CGL and automobile liability insurance shall designate Company, its affiliates, and its
directors, officers and employees and each other Buyer as additional insureds, as their interests
may appear. All such insurance must be primary and non-contributory and required to respond and
pay prior to any other insurance or self-insurance available as respects Buyer’s negligence. Any
other coverage available to Company or such other Buyer shall apply on an excess basis, but only as
respects Buyer’s negligence. Each Buyer agrees that such Buyer, such Buyer’s insurer(s) and anyone
claiming by, through, under or in such Buyer’s behalf shall have no claim, right of action or right
of subrogation against Company or any other Buyer based on any loss or liability insured against
under the foregoing
9
insurance. Upon Company’s request, each Buyer and such Buyer’s subcontractors shall furnish to
Company, prior to the transfer of possession, certificates or adequate proof of the foregoing
insurance. Company shall be notified in writing at least thirty (30) days prior to cancellation of
or any material change in any policy required to be carried by a Buyer hereunder. Notwithstanding
the foregoing, Maxim will have the right to satisfy all of the foregoing insurance requirements
through self-insurance.
LIMITATION OF LIABILITY
IN NO EVENT WILL COMPANY OR ANY BUYER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT
DAMAGES WHETHER ARISING OUT OF OR CLAIMING TO HAVE ARISEN OUT OF BREACH OF WARRANTY, BREACH OF
CONTRACT, NEGLIGENCE, STRICT TORT LIABILITY, OR OTHERWISE. IN NO EVENT SHALL COMPANY BE LIABLE FOR
DAMAGES IN EXCESS OF THE TOTAL PURCHASE PRICE STATED IN THIS AGREEMENT NOR SHALL ANY BUYER BE
LIABLE FOR DAMAGES IN EXCESS OF THE PORTION OF THE TOTAL PURCHASE PRICE REQUIRED TO BE PAID BY EACH
SUCH BUYER. THIS PROVISION SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
NON-WAIVER
No course of dealing or failure of any party to strictly enforce any term, right or condition of
this Agreement shall be construed as a waiver of such term, right or condition.
NOTICES
Any notices or correspondence concerning this Agreement shall be in writing sent via confirmed fax,
or certified or registered mail, return receipt requested to:
Company:
Agere Systems Inc.
0000 Xxxxxxxx Xxxxxxx XX
Xxxxxxxxx, XX, 00000
Attn: Xxxxxxx Xxxxx, Asst. Treasurer
Room 12B 312
Fax: 000 000 0000
0000 Xxxxxxxx Xxxxxxx XX
Xxxxxxxxx, XX, 00000
Attn: Xxxxxxx Xxxxx, Asst. Treasurer
Room 12B 312
Fax: 000 000 0000
with a copy to:
Agere Systems Inc.
0000 Xxxxxxxx Xxxxxxx XX
Xxxxxxxxx, XX, 00000
Attn: Xxxx Xxxxxxx, Corporate Counsel
Room 12K-314
Fax: 000 000 0000
0000 Xxxxxxxx Xxxxxxx XX
Xxxxxxxxx, XX, 00000
Attn: Xxxx Xxxxxxx, Corporate Counsel
Room 12K-314
Fax: 000 000 0000
AGSCL:
c/o Ogier Fiduciary Services (Cayman) Limited
Queensgate House
PO Box 1234GT
Xxxxxx Town, Grand Cayman, Cayman Islands
Attention: Xxxxxxxx Xxxxx
Fax: 000-000-0000
Queensgate House
PO Box 1234GT
Xxxxxx Town, Grand Cayman, Cayman Islands
Attention: Xxxxxxxx Xxxxx
Fax: 000-000-0000
10
with a copy to:
c/o AG Semiconductor Services LLC
00 Xxxx Xxxx
Xxx Xxxxxx, Xxxxxxxxxxx 00000 X.X.X.
Attention: Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
00 Xxxx Xxxx
Xxx Xxxxxx, Xxxxxxxxxxx 00000 X.X.X.
Attention: Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
and
Faegre & Xxxxxx LLP
0000 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 X.X.X.
Attention: Xxxx Xxxx, Esq.
Fax: 000-000-0000
0000 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 X.X.X.
Attention: Xxxx Xxxx, Esq.
Fax: 000-000-0000
Maxim:
Maxim/Dallas Direct, Inc.
000 Xxx Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Fax: 000-000-0000
000 Xxx Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Fax: 000-000-0000
with a copy to:
Maxim/Dallas Direct, Inc.
000 Xxx Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Legal Department
Fax: 000-000-0000
000 Xxx Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Legal Department
Fax: 000-000-0000
TI:
Texas Instruments Incorporated
00000 Xxxxx Xxxxxxx Xxxxxxxxxx
XX 0000
Xxxxxx, XX 00000
Attention: Xxxx XxXxxxxxxx and Xxx Xxxxxx
Fax: 000-000-0000
00000 Xxxxx Xxxxxxx Xxxxxxxxxx
XX 0000
Xxxxxx, XX 00000
Attention: Xxxx XxXxxxxxxx and Xxx Xxxxxx
Fax: 000-000-0000
with a copy to:
Texas Instruments Incorporated
0000 Xxxxxxxxx Xxx
XX 0000
Xxxxxx, XX 00000
Attention: Xxx Xxxx
Fax: 000-000-0000
0000 Xxxxxxxxx Xxx
XX 0000
Xxxxxx, XX 00000
Attention: Xxx Xxxx
Fax: 000-000-0000
Any party may change its address for notices by written notice to the other parties.
PAYMENT
The total purchase price for the Equipment (the “Total Purchase Price”) paid by the three Buyers
(AGSCL, Maxim, and TI) for the semiconductor assets listed in Exhibit A is US$89,000,000.
Each Buyer
11
shall execute and return to Agere the Order Confirmation in the form previously
distributed to Buyers; and pay its respective portion of the Total Purchase Price in accordance
with each Buyer’s respective Equipment Exhibit. Payments by Buyers to Company will be made by wire
transfer in accordance with the wiring instructions set forth on Exhibit E attached hereto.
Company may offer additional items such as spare parts not listed on Exhibit A or
consumables to Buyers at either no charge or at a negotiated additional price. Any such additional
items shall be offered to all of the Buyers and each Buyer and the Company shall agree as to which
additional items said Buyer will purchase and such Buyer’s respective portion of any additional
price therefor.
If any Buyer (a “Defaulting Buyer”) fails to pay to Company its respective portion of the Total
Purchase Price payable by such Buyer within three (3) business days after the full mutual execution
of this Agreement the following provisions will apply:
(a) If the Defaulting Buyer’s portion of the Total Purchase Price is $15,000,000 or less,
Company will on the fourth (4th) business day after the full mutual execution of this Agreement
notify the other Buyers in writing of such event and disclose the Defaulting Buyer’s Equipment
Exhibit to the non-defaulting Buyers. Company will first offer the Defaulting Buyer’s Equipment to
AGSCL. AGSCL will have the right, but not the obligation, within three (3) business days after
such notification from Agere, to pay the Defaulting Buyer’s portion of the balance of the Total
Purchase Price and buy the Defaulting Buyer’s portion of the Equipment. If within such three (3)
business day period AGSCL elects not to purchase the Defaulting Buyer’s Equipment (or if AGSCL
fails to make any election), then Agere will have the right to elect, by giving written notice to
the non-defaulting Buyers within two (2) business days after the expiration of such three (3)
business day period, to either (i) terminate this Agreement, in which case Company will return any
and all monies paid to it by the non-defaulting Buyers within five (5) business days, whereupon no
party will have any further rights or obligations under this Agreement, or (ii) terminate this
Agreement with respect to the Defaulting Buyer’s portion of the Equipment and proceed forward with
the non-defaulting Buyers on the terms and conditions of this Agreement with respect to the
non-defaulting Buyers’ portion of the Equipment (and if Company fails to deliver any such notice,
Company will be deemed to have elected to proceed under clause (ii) above); or
(b) If the Defaulting Buyer’s portion of the Total Purchase Price is greater than $15,000,000,
then Company will have the right to elect, by giving written notice to the non-defaulting Buyers on
the fourth (4th) business day after the full mutual execution of this Agreement, to either (i)
terminate this Agreement, in which case Company will return any and all monies paid to it by the
non-defaulting Buyers within five (5) business days, whereupon no party will have any further
rights or obligations under this Agreement, or (ii) terminate this Agreement with respect to the
Defaulting Buyer’s portion of the Equipment and proceed forward with the non-defaulting Buyers on
the terms and conditions of this Agreement with respect to the non-defaulting Buyers’ portion of
the Equipment (and if Company fails to deliver any such notice, Company will be deemed to have
elected to proceed under clause (ii) above).
PLANT RULES AND GOVERNMENT CLEARANCE
All persons furnished by any Buyer shall, while on the premises of Company, comply with all plant
rules and regulations, and where required by government regulations, submit satisfactory clearance
from relevant government agencies and authorities, including validated export licenses as required.
RELEASE OF EQUIPMENT
“Release Dates” are the dates on which the Company releases possession of each Equipment item to
each Buyer for Shipping (i.e., after completion of Decontamination and Disconnection by Company).
Upon the Release Date of a given item, any legal (title), Decontamination and Disconnection
concerns will have been met by the Company and the applicable Buyer will have previously made full
payment for said Equipment item. The Release Dates for each item of Equipment shall be determined
by the Company taking into account the reasonable input of each Buyer as to such Buyer’s Equipment;
provided, that (i) requests by TI and Maxim for earlier Release Dates will take priority over
requests by
12
AGSCL for earlier Release Dates, and (ii) Company will use commercially reasonable efforts to
ensure that the Release Dates for the Equipment being purchased by TI and Maxim occur no later than
November 30, 2005; provided that if Company cannot reasonably cause the Release Dates for the TI
Equipment and the Maxim Equipment to occur by November 30, 2005, Company will in any event cause
such Release Dates to occur no later than December 31, 2005. Company will notify each Buyer in
writing of such Buyer’s Release Dates on or about October 1, 2005. Once established, each Release
Date may be unilaterally changed by Company one time for up to thirty (30) days (but the Release
Dates for Equipment being purchased by TI and Maxim will not be delayed beyond December 31, 2005
and the Release Dates for the AGSCL Equipment will be no later than January 31, 2006).
SOFTWARE
Except as expressly provided herein to the contrary, this is a sale of hardware items only and does
not include a sale or license, sublicense or assignment of any associated software in any form,
except for OEM equipment operating system software, regardless of whether such software has been
packaged with, integrated into or otherwise included with the item(s). Each Buyer agrees to
destroy all such software on such Buyer’s portion of the Equipment, except for OEM equipment
operating system software, or to obtain an appropriate license for its continued use and to
indemnify Company for any failure to do so. However, no Buyer shall have any liability to Company
for claims arising from Company’s breach of any Company obligation to any third party.
TAXES
Each Buyer shall bear all taxes and related charges (including interest and penalties) in respect
of such Buyer’s portion of the Equipment imposed as a result of the transactions contemplated in
this Agreement, other than net income taxes imposed upon Agere by the United States or any
governmental authority within the United States (the fifty states and the District of Columbia).
Any tax or related charge which Agere shall be required to pay to or collect for any government
upon or with respect to the services rendered or sale, use, or delivery of a Buyer’s portion of the
Equipment, shall be billed to such Buyer as a separate item and paid by such Buyer unless a valid
exemption certificate is furnished by such Buyer to Agere. Prior to transfer of title to the
Equipment to a Buyer, such Buyer will provide to Agere an exemption certificate in the form of
Exhibit J (in the case of AGSCL), Exhibit K (in the case of Maxim) and Exhibit
L (in the case of TI) attached hereto. If a Buyer provides Agere with such certificate, Agere
will not collect sales or use taxes from the Buyer in connection with the sale of the Equipment, in
which event such Buyer will, on an after tax basis, indemnify and save Agere harmless from and
against any liability for sales or use taxes (including any interest and penalties) imposed against
Agere in connection with the sale of the Equipment based on Buyer’s failure to qualify for the
exemption. Each Buyer shall bear all taxes and related charges (including interest and penalties)
imposed as a result of its ownership of the Equipment with respect to any period beginning on the
date such Buyer acquires title to its portion of the Equipment.
TITLE AND RISK OF LOSS AND DAMAGE
Unless otherwise agreed in writing, title to all of the Equipment shall at all times remain in
Company until Company shall have received payment in full of such Buyer’s portion of the Total
Purchase Price for any applicable portion of the Equipment; and no part of the Equipment may be
removed by a Buyer prior to receipt of full payment for such part. After a Buyer has paid its
portion of the Total Purchase Price and upon transfer of title of such Equipment to such Buyer,
each Buyer shall bear risk of loss and damage for such Buyer’s portion of the Equipment prior to
removing it from Company’s premises unless such loss is caused by the gross negligence or
intentional acts of Company, its agents, employees or contractors; provided, however, that
notwithstanding the foregoing, Company will be responsible for up to One Million Dollars
($1,000,000) in the aggregate of damage to the TI Equipment or any portion thereof caused solely by
the negligence of Company, its agents, employees or contractors; provided, further, that if TI
fails to notify Company of a claim with respect to such negligence of Company, its agents,
employees or contractors within sixty (60) days after shipment of the applicable portion of the TI
Equipment from Company’s facility, then TI will not be entitled to make any further claim against
Company in respect of such negligence. Company warrants that it has good and valid title to the
Equipment, subject only to the Permitted Encumbrances, and will sell, transfer, assign, convey, and
13
deliver all right, title, and interest to the Equipment to Buyers free and clear of any lien and or
encumbrance of any kind or nature other than Permitted Encumbrances. Upon the payment by a Buyer
of such Buyer’s portion of the Total Purchase Price, Agere will deliver an executed Xxxx of Sale
for such Buyer’s Equipment in the form of Exhibit F attached hereto whereupon title to such
Buyer’s Equipment will be deemed to have been transferred to such Buyer.
“Permitted Encumbrances” means any (i) statutory lien for taxes, assessments, and other
governmental charges or liens of carriers, landlords, warehousemen, mechanics, and material men
incurred in the ordinary course of business, which are in each case for sums not yet due and
payable (ii) liens incurred or deposits made in the ordinary course of Agere’s business in
connection with workers’ compensation, unemployment insurance, and other types of social security
or to secure the performance of tenders, statutory obligations, surety and appeal bonds and similar
obligations, and (iii) any Encumbrance or minor imperfection in title or minor encroachments, if
any, that individually or in the aggregate, are not material in amount, do not materially interfere
with the use of the Equipment or do not materially affect the value of the Equipment.
Company has performed UCC searches to determine whether there are any outstanding liens,
encumbrances or security interest affecting any of the Equipment, which has revealed certain liens,
encumbrances and/or security interests listed on Exhibit O attached hereto, all of which
will be cured to the applicable Buyer’s satisfaction promptly after the date of this Agreement.
Should a lien, encumbrance or security interest affecting any portion of the Equipment be
discovered post-closing, Company will promptly cause such lien, encumbrance and/or security
interest to be terminated or removed at no cost to any Buyer. In the event the Company does not
comply with the preceding sentence and, as a result, a Buyer, in order to clear a lien or otherwise
maintain clear title to the Equipment, is required to incur any costs of any kind or nature
(including, without limitation, any payment to a taxing authority with respect to a tax assessed
against the Company with respect to any period ending on or before the date title to the Equipment
is transferred to Buyers (other than any taxes and related charges for which Buyers are responsible
under the section of this Agreement entitled “Taxes”)), the Company, on an after-tax basis, shall
promptly pay, reimburse, indemnify and hold such Buyer harmless from and against such costs,
including, without limitation taxes and related charges (including interest and penalties). The
provisions of this paragraph will survive the closing of the transactions contemplated under this
Agreement.
USE OF INFORMATION
Any specifications, drawings, sketches, diagrams, computer or other apparatus programs, manuals,
technical, or business information or data, including methods and concepts set forth or utilized
therein, in each case, which are proprietary to Company (all hereinafter designated “information”),
if any, which Company may furnish hereunder or in contemplation hereof and which are identified by
Company as confidential or with a similar designation, shall be kept in confidence by Buyers, using
the same degree of care which they use with respect to their own similar information, and shall not
be published or otherwise disclosed by any Buyer without Company’s prior written permission except
as hereinafter provided. Unless such information was previously known to a Buyer free of any
obligation to keep it in confidence or has been or is subsequently made public by Company or a
third party, it shall be kept in confidence by such Buyer and may be used by such Buyer solely to
remove, install, operate, maintain or resell the Equipment supplied hereunder, and may not be used
for other purposes except upon such terms as may be agreed upon in writing between such Buyer and
Company. No copies of such information may be made other than copies, which are necessary for
removal, installation, operation, maintenance or resale of the Equipment supplied hereunder. Such
information may be disclosed to any Buyer’s authorized designee for the sole purpose of removing,
installing, operating, and maintaining the Equipment supplied hereunder provided such designee,
agrees in writing to keep such information in confidence in an agreement consistent with the
provisions herein.
14
REPRESENTATIONS, WARRANTIES, AND COVENANTS OF COMPANY
Company hereby covenants, warrants and represents to Buyers as follows:
1. AUTHORITY, APPROVAL AND ENFORCEABILITY
(a) Company has full corporate power and authority to execute, deliver and perform its
obligations under this Agreement and all agreements, instruments and documents contemplated
hereby, and all corporate action of Company necessary for such execution, delivery and
performance has been duly taken.
(b) Company has, or by the date of transfer of title to any of the Equipment will
have, obtained any and all consents from third parties (including, without limitation, any
lender to the Company) necessary for Company to enter into, and be bound by, this Agreement.
(c) This Agreement is a legal, valid and binding obligation of Company, and, upon due
execution and delivery by the parties thereto, all agreements, instruments and documents to
be executed by Company in connection with the transactions contemplated hereby will be
legal, valid and binding obligations of Company, each enforceable against Company in
accordance with their respective terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally, and subject to general equity principles and to limitations on
availability of equitable relief, including specific performance.
(d) The party executing this Agreement on behalf of Company has been duly authorized
and is empowered to bind Company to this Agreement.
2. NO CONFLICT The execution, delivery and performance by Company of this Agreement and any
other agreements, instruments and documents to be executed and delivered by Company pursuant hereto
do not, and the performance and consummation by Company of the transactions contemplated hereby and
thereby will not, conflict with or result in any breach or violation of or default, termination,
forfeiture or lien under (or upon the failure to give notice or the lapse of time, or both, result
in any conflict with, breach or violation of or default, termination, forfeiture or lien under) any
terms or provisions of Company’s charter documents, as amended, or any statute, rule, regulation,
judicial or governmental decree, order or judgment, or any agreement to which Company is a party or
to which Company or the Equipment are subject.
3. TITLE TO EQUIPMENT Company has good and valid title to the Equipment, free and clear of
all liens and encumbrances of any kind or nature. Upon payment of its portion of the Total
Purchase Price, each Buyer will acquire good and valid title to its respective portions of the
Equipment free and clear of all liens and encumbrances of any kind or nature. On or before
delivery all taxes with respect to the Equipment, if any, shall be paid current.
4. NO FURTHER SALE OR ASSIGNMENT From and after the date hereof, and until transfer of title
to Buyer or earlier termination of this Agreement, Company shall not sell, assign or create any
right, title or interest whatsoever in or to the Equipment or create or permit the creation of any
lien, encumbrance or charge thereon.
5. NO REMOVAL; USE OF EQUIPMENT Company shall not transfer or remove any of the Equipment
from its current location, except as agreed in writing with the applicable Buyer and except for
purposes of replacement thereof and customary loss of minor, nonmaterial items, in which case such
replacements shall be promptly installed prior to closing and shall be comparable in quantity and
quality to the item(s) being replaced. After the transfer of title to the applicable Equipment to
the applicable Buyer, Company will have the right to continue to use the Equipment, at Company’s
sole
15
risk and expense, for the use such Equipment is currently being used by Company; provided that (i)
Company shall discontinue its use of the Equipment on or before September 30, 2005, (ii) Company
will be responsible for any damage to the Equipment caused by any employees, contractors or agents
of Company resulting from or in connection with such use (it being agreed that Company will ensure
that the Equipment will, at the time of transfer of possession of the Equipment to the applicable
Buyer, be in substantially the same condition as such Equipment was in on the date on which such
Equipment was last inspected by the applicable Buyer, notwithstanding such use thereof by Company),
(iii) Company will not move the Equipment from its present location in a “clean room” at Company’s
Orlando, FL site except in connection with the Decontamination and Disconnection thereof as set
forth herein or otherwise consented to or directed in writing by the applicable Buyer (iv) Company
hereby releases each Buyer from any claim of any kind or nature relating to or arising from the use
by Company of such Buyer’s Equipment (including, without limitation, any claims related to
defective products produced using such Buyer’s Equipment) unless said claim arises from the actions
of Buyer or Buyer’s Employees and (v) Company hereby agrees to indemnify, defend and hold each
Buyer harmless from and against any and all liability, cost, loss or expense of any kind or nature
(including, without limitation, reasonable attorneys’ fees and disbursements) incurred by such
Buyer in connection with (i) any third party claims relating to goods produced by Company (or other
goods into which Company’s products are incorporated) using such Buyer’s Equipment, (ii) personal
injury, (iii) property damage or (iv) violation by Company of any applicable federal, state or
local law, rule or regulation, in each case, resulting from or in connection with the use of such
Buyer’s Equipment unless said claim arises from the actions of Buyer or Buyer’s Employees.
6. AUTHORITY TO SIGN The party executing this Agreement on behalf of Company has been duly
authorized and is empowered to bind Company to this Agreement.
7. LITIGATION There are no actions, suits, claims, proceedings, investigations, or litigation
pending, or to the knowledge of the Company threatened against or affecting Company and/or the
Equipment that would affect the validity of transfer of title to the Equipment to the applicable
Buyer or would materially affect the value of the Equipment or any of Company’s obligations under
this Agreement, at law or in equity or admiralty, or before any federal, state, municipal, or other
governmental department, commission, board, bureau, agency, or instrumentality, domestic or
foreign. Company is not in default with respect to any order, writ, injunction, or decree of any
court or federal, state, municipal, or other governmental department, commission, board, bureau,
agency, or instrumentality, domestic or foreign.
The representations, warranties and covenants by Company provided in sections 1 through 7 above
shall survive the closing of the transactions contemplated under this Agreement.
REPRESENTATIONS, WARRANTIES, AND COVENANTS OF BUYERS
Each Buyer hereby covenants, warrants and represents to Company as to itself as follows:
1. AUTHORITY, APPROVAL AND ENFORCEABILITY
(a) Such Buyer has full corporate power and authority to execute, deliver and perform
its obligations under this Agreement and all agreements, instruments and documents
contemplated hereby, and all corporate action of such Buyer necessary for such execution
delivery and performance has been duly taken.
(b) Such Buyer has, or by the date of closing will have, obtained any and all consents
from third parties (including, without limitation, any lender to such Buyer) necessary for
such Buyer to enter into, and be bound by, this Agreement.
(c) This Agreement is a legal, valid and binding obligation of such Buyer, and, upon
due execution and delivery by the parties thereto, all agreements, instruments and
16
documents to be executed by such Buyer in connection with the transactions contemplated
hereby will be legal, valid and binding obligations of such Buyer, each enforceable against
such Buyer in accordance with their respective terms, except as enforcement may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally, and subject to general equity principles and to limitations on
availability of equitable relief, including specific performance.
(d) The party executing this Agreement on behalf of such Buyer has been duly
authorized and is empowered to bind such Buyer to this Agreement.
2. NO CONFLICT. The execution, delivery and performance by such Buyer of this Agreement and
any other agreements, instruments and documents to be executed and delivered by such Buyer pursuant
hereto do not, and the performance and consummation by such Buyer of the transactions contemplated
hereby and thereby will not, conflict with or result in any breach or violation of or default,
termination, forfeiture or lien under (or upon the failure to give notice or the lapse of time, or
both, result in any conflict with, breach or violation of or default, termination, forfeiture or
lien under) any terms or provisions of such Buyer’s charter documents, each as amended, or any
statute, rule, regulation, judicial or governmental decree, order or judgment, to which such Buyer
is a party or to which such Buyer or its Equipment are subject.
The representations, warranties and covenants by each Buyer provided in sections 1 and 2 above
shall survive the closing of the transactions contemplated under this Agreement.
MEDIATION / NON-EXCLUSIVE JURISDICTION
If a dispute arises out of or relates to this Agreement, or its breach, and the parties have not
been successful in resolving such dispute through negotiation, the parties may agree to attempt to
resolve the dispute through mediation by submitting the dispute to a sole mediator selected by the
parties or, at any time at the option of a party, to mediation by the American Arbitration
Association (“AAA”). In such event, each party shall bear its own expenses and an equal share of
the expenses of the mediator and the fees of the AAA. The parties, their representatives, other
participants and the mediator shall hold the existence, content and result of the mediation in
confidence. Such mediation shall be held in New York City, New York, USA, or such other location
as may be mutually agreeable to the parties. Each party to this Agreement hereby submits to the
non-exclusive jurisdiction of the State or Federal courts sitting in the City and State of New
York. Company acknowledges that the Equipment to be conveyed to Buyers is unique and that monetary
damages, or other legal remedies, may not be adequate to compensate Buyers for a breach of this
Agreement by Company and that, because of the unique nature of the Equipment, Buyers, as one of
their available remedies, may seek the specific performance of this Agreement if the remedy of
specific performance is available to Buyers under applicable law. All defenses based on passage of
time shall be tolled pending the termination of the mediation. Nothing in this clause shall be
construed to preclude any party from seeking injunctive relief in order to protect its rights
pending mediation. A request by a party to a court for such injunctive relief shall not be deemed
a waiver of any agreement by such party to mediate. The provisions of this paragraph will survive
the closing or the earlier termination of this Agreement.
FURTHER ASSURANCES
Company hereby agrees to perform, execute and deliver or cause to be performed, executed and
delivered any and all such further agreements, certificates, instruments and other documents and
assurances (including, without limitation, a letter agreement between any Buyer and Company
allocating such Buyer’s portion of the Total Purchase Price among the tools comprising such Buyer’s
Equipment in a manner satisfactory to such Buyer) and take such other actions as any Buyer may
reasonably require to effect the assignment, transfer and conveyance of the Equipment to such
Buyer, and to consummate the other transactions contemplated under this Agreement.
17
BROKER
Each Buyer represents and warrants that such Buyer has not dealt with any broker, agent, finder or
similar party in connection with the transaction contemplated hereby, and such Buyer hereby
indemnifies and holds harmless Company and the other Buyers from any liability, cost or expense
(including, without limitation, reasonable attorneys’ fees and costs of enforcement of the
foregoing indemnity) arising out of the falsity of the foregoing representation. Company
represents and warrants that Company has not dealt with any broker, agent, finder or similar party
in connection with the transaction contemplated hereby and Company hereby indemnifies and holds
harmless Buyers from any liability, cost or expense (including, without limitation, reasonable
attorneys’ fees and costs of enforcement of the foregoing indemnity) arising out of the falsity of
the foregoing representation. The provisions of this paragraph shall survive the closing of the
transactions contemplated under this Agreement.
XXXX-XXXXX-XXXXXX
The parties acknowledge and agree that the sales of the portions of the Equipment by Company to
each of AGSCL, TI and Maxim constitute separate transactions in fact and in particular for purposes
of the Xxxx-Xxxxx Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”). Buyers
each represent and warrant that they are unaffiliated entities and that none of them is buying or,
as a result of the acquisition, will hold (within the meaning of the HSR Act), assets of the
Company with a fair market value, or with an allocated portion of the purchase price, greater than
$53,000,000, and that each Buyer’s Equipment Exhibit will so reflect. Accordingly, the parties
acknowledge and agree, having each had an opportunity to consult with its respective legal counsel,
that neither Company nor any Buyer is required to make a filing with any U.S. Governmental
authority under the HSR Act with respect to the transactions contemplated under this Agreement.
NO PARTNERSHIP OR SPECIAL RELATIONSHIP
Buyers and Company acknowledge and agree that the relationship between Buyers and Company, on the
one hand, and among Buyers, on the other hand, is in each case solely a commercial relationship,
and the execution of this Agreement by Buyers and Company shall not create (and neither Buyers nor
Company intends to create) any relationship of principal and agent between Buyers and Company, on
the one hand, or among Buyers, on the other hand, or any partnership or joint venture relationship
between Buyers and Company, on the one hand, or among Buyers, on the other hand. Neither Buyers
nor Company shall be deemed to be a fiduciary of the other party and no Buyer shall be deemed to be
a fiduciary of any other Buyer.
[Signatures on Following Pages]
18
IN WITNESS WHEREOF, Company and Buyers have executed this Agreement as of the date set forth
below such party’s name.
Company:
By:
|
/s/ Xxxx X. Xxxxxxxxxx, Xx. | |||
| Name and Title: Xxxx X. Xxxxxxxxxx, Xx., Vice President-Tax and Treasurer | ||||
| Date: September 13, 2005 | ||||
| AGSCL: AG SEMI-CONDUCTOR LIMITED |
||||
| By: Ztec Financial Advisors, Inc., its authorized agent | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||
| Xxxxxx Xxxxxxx, President | ||||||
| Date: September 13, 2005 | ||||
| Maxim: | ||||
| MAXIM/DALLAS DIRECT, INC. | ||||
By:
|
/s/ Xxxx X. Xxxxxx | |||
| Name and Title: Xxxx X. Xxxxxx, President | ||||
| Date: September 13, 2005 | ||||
TI: |
||||
| TEXAS INSTRUMENTS INCORPORATED | ||||
By:
|
/s/ Xxxxx X. March | |||
| Name and Title: SENIOR VICE
PRESIDENT CHIEF FINANCIAL OFFICER |
||||
| Date: September 13, 2005 | ||||
