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EXHIBIT 6
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement"), dated as of January 15,
2001, is entered into by and between Intel Corporation, a Delaware corporation
("Parent"), and Xircom, Inc., a California corporation ("Company"). Capitalized
terms used herein but not otherwise defined shall have the meanings set forth in
the Merger Agreement (as defined below).
RECITALS
WHEREAS, Company, Parent and ESR Acquisition Corporation, a California
corporation and direct wholly-owned subsidiary of Parent ("Acquisition"), 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 commence a tender offer (the
"Offer") for all of the issued and outstanding shares of the common stock, par
value $0.001 per share, of the Company (the "Company Common Stock") and, after
accepting for payment the shares tendered in the Offer (the "Tendered Shares"),
Acquisition will merge with and into the Company with the Company continuing as
the surviving corporation as a wholly-owned subsidiary of Parent; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has required that Company agree, and Company has agreed, to
enter into this Agreement, which provides, among other things, that Company
grant to Parent an option to purchase shares of Company Common Stock upon the
terms and subject to the conditions provided herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements contained in this 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, Exercise and Termination of Option.
(a) Subject to the terms and conditions of this Agreement, Company
hereby grants to Parent an irrevocable option (the "Option") to purchase up to
5,954,325 shares of Company Common Stock, or such other number of shares of
Company Common Stock as equals 19.9% of the issued and outstanding shares of
Company Common Stock at the time of exercise of the Option (the "Option
Shares"), in the manner set forth below, at an exercise price of Twenty-Five
Dollars ($25.00) per share of Company Common Stock, subject to adjustment as
provided below (the "Exercise Price").
(b) Subject to the satisfaction or waiver of the conditions set
forth in Section 9 of this Agreement, prior to the termination of this Agreement
in accordance
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with its terms, Parent may exercise the Option, in whole or in part, at any time
or from time to time on or after the occurrence of a Trigger Event (as defined
below). The term "Trigger Event" means the earlier to occur of (i) the time
immediately prior to the occurrence of any of the events (or the last of any
series of events, as applicable) specified in Section 7.3(a) of the Merger
Agreement giving rise to the obligation of the Company to pay the fee specified
in Section 7.3(a) and (ii) the date on which Acquisition has accepted payment
for the Tendered Shares; provided, however, that clause (ii) of this sentence
shall only constitute a Trigger Event if the number of Option Shares plus the
number of Tendered Shares will, upon the issuance of the Option Shares, equal at
least ninety percent (90%) of the issued and outstanding shares of Company
Common Stock.
(c) In the event Parent wishes to exercise the Option, Parent shall
deliver to the Company a written notice (an "Exercise Notice") specifying the
total number of shares of Company Common Stock it wishes to purchase. Each
closing of a purchase of shares of Company Common Stock (a "Closing") shall
occur at a place, on a date and at a time designated by Parent in an Exercise
Notice delivered at least two business days prior to the date of the Closing.
(d) The Option shall terminate upon the earlier of: (i) the
Expiration Date (as defined in Section 11 below); (ii) the termination of the
Merger Agreement pursuant to Section 7.1 thereof, other than a termination as a
result of the occurrence of a Trigger Event; or (ii) one (1) year following any
termination of the Merger Agreement as the result of the occurrence of a Trigger
Event (or, if at the expiration of such one (1) year period the Option cannot be
exercised by reason of any applicable judgment, decree, order, law or
regulation, or because the applicable waiting period under the HSR Act has not
expired or been terminated, ten (10) business days after such impediment to
exercise shall have been removed or shall have become final and not subject to
appeal).
2. Certain Repurchases.
(a) At the request of Parent at any time during which the Option is
exercisable pursuant to Section 1, the Company (or any successor entity thereof)
shall repurchase from Parent the Option, or any portion thereof, for a price
equal to the amount by which the "Market/Tender Offer Price" for shares of the
Company Common Stock as of the date Parent gives notice of its intent to
exercise its rights under this Section 2 (defined as the higher of (i) the
highest price per share of the Company Common Stock paid as of such date
pursuant to any tender or exchange offer or other Company Acquisition and (ii)
the average of the closing sale prices of shares of the Company Common Stock on
the Nasdaq National Market for the five trading days immediately preceding such
date) exceeds the Exercise Price, multiplied by the number of shares of the
Company Common Stock purchasable pursuant to the Option (or portion thereof with
respect to which Parent is exercising its rights under this Section 2)).
(b) In the event Parent exercises its rights under this Section 2,
within ten (10) business days thereafter, (i) the Company shall pay the required
amount to Parent
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in immediately available funds by wire transfer, (ii) Parent shall surrender to
the Company the Option, and (iii) Parent shall warrant that it owns the Option
free and clear of all liens or other encumbrances of any kind or nature
whatsoever.
(c) As used in this Agreement, "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 Company and its subsidiaries
taken as a whole; (ii) the acquisition by a third party of fifty percent (50%)
or more of the outstanding shares of Company Common Stock or any securities
convertible into or exchangeable for shares of Company Common Stock that would
constitute fifty percent (50%) or more of the outstanding shares of Company
Common Stock upon such conversion or exchange, or any combination of the
foregoing; (iii) the acquisition by the Company of the assets or stock of a
third party if, as a result of which the outstanding shares of the Company
immediately prior thereto are increased by one hundred percent (100%) or more;
or (iv) the merger, consolidation or business combination of the Company with or
into a third party, where, following such merger, consolidation or business
combination, the shareholders of the Company (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, but shall
specifically exclude any transaction authorized pursuant to the term of the
Merger Agreement.
3. Payment of Exercise Price and Delivery of Certificate. Any
Closing under Section 1 of this Agreement shall be held at the principal
executive offices of Company, or at such other place as Company and Parent may
agree. At any Closing hereunder, (a) Parent or its designee will make payment to
Company of the aggregate Exercise Price for the Option Shares being so purchased
by delivery of a certified check, official bank check or wire transfer of funds
pursuant to Company's instructions payable to Company in an amount equal to the
product obtained by multiplying the Exercise Price by the number of Option
Shares to be purchased, and (b) upon receipt of such payment, Company will
deliver to Parent 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
Company in writing by Parent.
4. Registration and Listing of Shares.
(a) Parent may, by written notice (a "Registration Notice"), request
at any time or from time to time within three (3) years following a Trigger
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
Parent upon exercise of the Option and any other shares of Company Common Stock
that are held by Parent during the Registration Period ("Registrable
Securities"), that Company register under the Securities Act of 1933, as amended
(the "Securities Act"), the offering, sale and delivery, or other disposition,
of the Registrable Securities. In connection with any such sale or other
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disposition, Parent shall use commercially reasonable efforts to prevent any
person or group from purchasing through such offering shares of Company Common
Stock representing more than five percent (5%) of the outstanding Company Common
Stock 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 Parent shall
be entitled to exercise its rights hereunder but only for all of the remaining
Registrable Securities (a "Permitted Offering"). Parent's rights hereunder shall
terminate at such time as Parent shall be entitled to sell all of the remaining
Registrable Securities pursuant to Rule 144(k) under the Securities Act. The
Registration Notice shall include a certificate executed by Parent and its
proposed managing underwriter, which underwriter shall be an investment banking
firm of nationally recognized standing reasonably acceptable to Company (the
"Manager"), stating that (i) Parent 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 specified in the Registration
Notice. Company shall thereupon have the option, exercisable by written notice
delivered to Parent within ten (10) 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 Company Common Stock on the
Nasdaq National Market for the twenty (20) trading days immediately preceding
the date of the Registration Notice. Any such purchase of Registrable Securities
by Company hereunder shall take place at a closing to be held at the principal
executive offices of Company at any reasonable date and time designated by
Company in such notice within ten (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 by
wire transfer.
(b) If Company does not elect to exercise its option to purchase
pursuant to the foregoing subsection (a) with respect to all Registrable
Securities, Company shall use its best efforts to effect, as promptly as
practicable, the registration under the Securities Act of the unpurchased
Registrable Securities requested to be registered in the Registration Notice,
and Company will use its best efforts to qualify any Registrable Securities
Parent desires to sell or otherwise dispose of under applicable state securities
or "blue sky" laws; provided, however, that Company 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 Parent's prior written
consent, no other securities may be included in any such registration. Company
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 one hundred twenty (120) days from the day such registration statement first
becomes effective (which period shall be tolled during any suspension period
contemplated by the following sentence). The obligations of Company hereunder to
file a registration statement and to maintain its effectiveness may be suspended
for one or
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more periods not exceeding ninety (90) days in any twelve (12) month period if
the Board of Directors of Company 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 (which would not otherwise be
required to be disclosed but for the registration statement) that would
materially and adversely affect Company, or Company is required under the
Securities 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. Parent shall be entitled to make up to
three (3) requests under this Section 4. For purposes of determining whether the
three (3) requests have been made under this Section 4, only requests relating
to a registration statement that has become effective under the Securities Act
will be counted.
(c) If, during the Registration Period, Company shall propose to
register under the Securities Act the offering, sale and delivery of Company
Common Stock for cash for its own account or for any other shareholder of
Company pursuant to a firm underwriting, it will, in addition to Company's other
obligations under this Section 4, allow Parent the right to participate in such
registration so long as Parent participates in such underwriting; provided,
however, that, if the managing underwriter of such offering advises Company in
writing that in its opinion the number of shares of Company Common Stock
requested to be included in such registration exceeds the number that would be
in the best interests of Company to sell in such offering, Company will, after
fully including therein all shares of Company Common Stock to be sold by
Company, include the shares of Company Common Stock requested to be included
therein by Parent pro rata (based on the number of shares of Company Common
Stock requested to be included therein) with the shares of Company Common Stock
requested to be included therein by persons other than Company and persons to
whom Company owes a contractual obligation (other than any director, officer or
employee of Company to the extent any such person is not currently owed any such
contractual obligation).
(d) 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, filing fees in respect
of the SEC or the National Association of Securities Dealers, Inc. and fees and
disbursements of counsel to Parent) ("Registration Expenses") will be paid by
Company, except for underwriting discounts or commissions or brokers' fees in
respect of shares of Company Common Stock to be sold by Parent; provided,
however, that Company 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 Parent unless Parent agrees to forfeit its right to
request one (1) registration; provided further, however, that, if at the time of
such withdrawal Parent has learned of a material adverse change in the results
of operations, condition, business or prospects of Company not known to Parent
at the time of the request and has withdrawn the request within a reasonable
period of time following disclosure by Company to Parent of such material
adverse change, then Parent shall not be required to pay any of such
Registration Expenses and shall not forfeit such right to request one (1)
registration.
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(e) In connection with each registration under this Section 4,
Company shall indemnify and hold Parent, 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 Parent, its underwriters and each of their respective affiliates may
become subject, under the Securities 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 Parent to Company expressly for use in such registration statement.
(f) In connection with any registration statement pursuant to this
Section 4, Parent agrees to furnish Company 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 Securities Act and shall
provide representations and warranties customary for selling shareholders who
are unaffiliated with the Company. In addition, Parent shall indemnify and hold
Company, 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 Company, its
underwriters and each of their respective affiliates may become subject under
the Securities 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 Parent to Company expressly for
use in such registration statement; provided, however, that in no event shall
any indemnification amount contributed by Parent hereunder exceed the net
proceeds received by Parent in connection with such registration.
(g) Upon the issuance of Option Shares hereunder, Company will use
its best efforts to promptly list such Option Shares with such national or other
exchange on which the shares of Company Common Stock are at the time listed.
5. Representations and Warranties of Company. Company hereby
represents and warrants to Parent as follows:
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(a) Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of California and has all requisite
power and authority to enter into and perform its obligations under this
Agreement.
(b) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of Company and no other corporate
proceedings on the part of Company are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby. The Board of Directors of
Company has duly approved the issuance and sale of the Option Shares, upon the
terms and subject to the conditions contained in this Agreement, and the
consummation of the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by Company and, assuming this Agreement
has been duly and validly authorized, executed and delivered by Parent,
constitutes a valid and binding obligation of Company enforceable against
Company in accordance with its terms.
(c) Company 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
Agreement through the Expiration Date will have reserved for issuance upon
exercise of the Option, a sufficient number of authorized shares of Company
Common Stock for issuance upon exercise of the Option, each of which, upon
issuance pursuant to this Agreement and when paid for as provided herein, will
be duly and validly issued, fully paid and nonassessable, and shall be delivered
free and clear of all claims, liens, charges, encumbrances and security
interests.
(d) 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 Securities Act and any applicable state
securities laws, the execution, delivery and performance of this Agreement by
Company and the consummation by it of the transactions contemplated hereby 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 Articles of Incorporation or bylaws, or any
indenture, mortgage, lien, lease, agreement, contract, instrument, order,
judgment, ordinance, regulation or decree or any restriction to which Company or
any property of Company or its subsidiaries is bound.
6. Representations and Warranties of Parent. Parent hereby
represents and warrants to Company that:
(a) Parent 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
Agreement.
(b) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
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authorized by the Board of Directors of Parent and no other corporate
proceedings on the part of Parent are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Parent and, assuming this Agreement has
been duly executed and delivered by Company, constitutes a valid and binding
obligation of Parent enforceable against Parent in accordance with its terms.
(c) Parent 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 Parent. Parent agrees not to transfer or otherwise
dispose of the Option or the Option Shares, or any interest therein, except in
compliance with the Securities Act and any applicable state securities law.
Parent further agrees to the placement of the following legend on the
certificate(s) representing the Option Shares (in addition to any legend
required under applicable state securities laws):
"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. Cooperation. Parent and Company shall take, or cause to be
taken, all reasonable action to consummate and make effective the transactions
contemplated by this Agreement, including, without limitation, reasonable
efforts to obtain any necessary consents of third parties and governmental
agencies and the filing by Parent and Company promptly of any required HSR Act
notification forms and the documents required to comply with the HSR Act.
9. Certain Conditions. The obligation of Company to issue Option
Shares under this 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 Parent pursuant to this Agreement under the HSR Act and any material
foreign competition laws shall have expired or been terminated;
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(b) the representations and warranties of Parent made in Section 6
of this 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
(c) 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 Agreement.
10. Adjustments upon Changes in Capitalization. In the event of any
change in the number of issued and outstanding shares of Company 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 Company, Parent shall receive, upon exercise of the Option, the stock or
other securities, cash or property to which Parent would have been entitled if
Parent had exercised the Option and had been a holder of record of shares of
Company Common Stock on the record date fixed for determination of holders of
shares of Company Common Stock entitled to receive such stock or other
securities, cash or property at the same aggregate price as the aggregate
Exercise Price of the Option Shares.
11. Expiration. The Option shall expire at the earlier of (i) the
Effective Time (as defined in the Merger Agreement) and (ii) 5:00 p.m.,
California time, on the day that is the one (1) 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. Profit Limitation. Notwithstanding any other provision of this
Agreement, in no event shall Parent's Total Profit (as hereinafter defined)
exceed Thirty-Five Million Dollars ($35,000,000) and, if it otherwise would
exceed such amount, Parent, at its sole election, shall either (a) deliver to
the Company for cancellation shares of Company Common Stock previously purchased
by Parent, (b) pay cash or other consideration to the Company or (c) undertake
any combination thereof, so that Parent's Total Profit shall not exceed
Thirty-Five Million Dollars ($35,000,000) after taking into account the
foregoing actions. As used herein, the term "Total Profit" shall mean the
aggregate amount (before taxes) of the following: (i) the amount received by
Parent pursuant to the Company's repurchase of the Option pursuant to Section 2
hereof, (ii)(A) the net cash amounts received by Parent pursuant to the sale of
Option Shares (or any other securities into which such shares are converted or
exchanged) to any unaffiliated party, less (B) Parent's purchase price for such
shares, and (iii) the aggregate amount received by Parent from the Company
pursuant to Section 7.3(a) of the Merger Agreement.
13. General Provisions.
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(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.
(b) Further Assurances. If Parent exercises the Option pursuant to
Section 1 or its put right pursuant to Section 2, or any portion thereof,
Company and Parent 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 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
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 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 to 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 Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
(d) Assignment; Transfer of Option. This Agreement shall be binding
on and inure to the benefit of the parties hereto and their respective
successors and permitted assigns; provided, however, that Company and Parent,
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
Parent shall be entitled to assign or transfer this Agreement or any rights
hereunder to any wholly-owned subsidiary of Parent 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 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 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 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 Agreement may not be modified, amended, altered
or supplemented except upon the execution and delivery of a written agreement
executed by Parent and Company.
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(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 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 Parent: Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: General Counsel
and Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Treasurer
with a copy to: Weil, Gotshal & Xxxxxx LLP
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
If to Company: Xircom, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx
Telecopier: (000) 000-0000
Attention: Chief Financial Officer
with a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0 Xxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx Xxxxxx
(h) Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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(i) Counterparts. This Agreement may be executed in multiple
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.
(i) THIS 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 Agreement and of the documents referred to in
this 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
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 13(g) or in such other manner as may be
permitted by applicable law, shall be valid and sufficient service
thereof.
(ii) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS 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 (A) 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, (B) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH
SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH SUCH PARTY HAS
BEEN
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INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS
AND CERTIFICATIONS IN THIS SECTION 13(j).
(k) Entire Agreement. This Agreement and the Merger Agreement, and
any documents and instruments referred to herein or 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 Agreement shall be construed
to give any person other than the parties to this Agreement or their respective
successors or permitted assigns any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
(l) Expenses. Except as otherwise provided in this Agreement, each
party shall pay its own expenses incurred in connection with this Agreement and
the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties have caused this 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
XIRCOM, INC.
By: /s/ XXXXXX X. XXXXXXXXX
--------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Chief Financial Officer
[SIGNATURE PAGE TO INTEL/XIRCOM STOCK OPTION AGREEMENT]
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