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Exhibit 2.1
ASSET PURCHASE AGREEMENT
between
TEXAS INSTRUMENTS INCORPORATED
and
ADAPTEC, INC.
November 6, 1998
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TABLE OF CONTENTS
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I. DEFINITIONS 4
1.1 DEFINITIONS 4
II. PURCHASE OF ASSETS 4
2.1 PURCHASE AND SALE OF ASSETS 4
(a) Product Designs 4
(b) Tangible Assets 4
(c) Technology Deliverables 4
(d) Intangible Assets 4
(e) Contracts 5
(f) Books and Records 5
(g) Inventory 5
2.2 EXCLUDED ASSETS 5
2.3 NONASSIGNABLE CONTRACTS 5
(a) Nonassignability 5
(b) Seller to Use Reasonable Efforts 5
(c) If Waivers or Consents Cannot Be Obtained 6
(d) Cooperation of Purchaser 6
2.4 RESERVATION OF RIGHTS 6
III. ASSUMPTION OF LIABILITIES 6
3.1 ASSUMED LIABILITIES 7
3.2 RETAINED LIABILITIES 7
IV. PURCHASE PRICE 7
4.1 PURCHASE PRICE 7
4.2 ALLOCATION OF PURCHASE PRICE 7
4.3 LICENSE FEES AND ROYALTIES 8
V. CLOSING 8
5.1 CLOSING 8
5.2 DELIVERIES AT CLOSING 8
5.3 DELIVERY OF PURCHASED ASSETS 9
VI. REPRESENTATIONS AND WARRANTIES OF SELLER 9
6.1 ORGANIZATION AND GOOD STANDING 9
6.2 AUTHORIZATION AND EFFECT OF AGREEMENT 10
6.3 NO CONFLICTS 10
6.4 NO THIRD PARTY OPTIONS 10
6.5 INTELLECTUAL PROPERTY 10
(a) Ownership 10
(b) No Infringement 11
(c) Effective Transfer of Rights 11
(d) No Infringement by Third Parties 11
6.6 LITIGATION 11
6.7 TITLE TO AND CONDITION OF ASSETS 11
6.8 PRODUCTS 12
6.9 CONTRACTS 12
6.10 CUSTOMERS 12
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6.11 YEAR 2000 COMPLIANCE 12
6.12 DISCLOSURE 12
VII. REPRESENTATIONS AND WARRANTIES OF PURCHASER 13
7.1 CORPORATE ORGANIZATION 13
7.2 AUTHORIZATION AND EFFECT OF AGREEMENT 13
7.3 NO CONFLICTS 13
7.4 LITIGATION 13
VIII. COVENANTS 14
8.1 COVENANT NOT TO COMPETE 14
8.2 CONFIDENTIALITY 14
8.3 SPECIFIC PERFORMANCE 15
8.4 PRODUCT WARRANTY MATTERS 15
8.5 MAINTENANCE OF BOOKS AND RECORDS 16
8.6 MANUFACTURING SUPPORT 16
8.7 MISCELLANEOUS EMPLOYEE MATTERS 17
IX. SURVIVAL AND INDEMNIFICATION 17
9.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS 17
9.2 LIMITATIONS ON LIABILITY 17
9.3 INDEMNIFICATION 18
9.4 DEFENSE OF CLAIMS 18
9.5 EXCLUSIVE REMEDY 20
X. MISCELLANEOUS PROVISIONS 20
10.1 NOTICES 20
10.2 EXPENSES 21
10.3 SUCCESSORS AND ASSIGNS 21
10.4 WAIVER 21
10.5 ENTIRE AGREEMENT; DISCLOSURE SCHEDULES 21
10.6 AMENDMENTS, SUPPLEMENTS, ETC 21
10.7 RIGHTS OF THE PARTIES 22
10.8 FURTHER ASSURANCES 22
10.9 APPLICABLE LAW 22
10.10 EXECUTION IN COUNTERPARTS 22
10.11 TITLES AND HEADINGS 22
10.12 INVALID PROVISIONS 22
10.13 BULK SALES 22
10.14 TRANSFERS 22
10.15 TRANSFER TAXES 23
10.16 BROKERS 23
10.17 ATTORNEYS' FEES 23
10.18 DISPUTE RESOLUTION 23
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of November 6, 1998, by and between Texas Instruments Incorporated, a
Delaware corporation ("Purchaser"), and Adaptec, Inc., a Delaware corporation
("Seller").
RECITALS:
WHEREAS, Seller desires to sell and Purchaser desires to purchase
certain assets of Seller related to the products and products under development
of Seller listed on Schedule 1 hereto (the "Products"), all on the terms and
subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements herein contained, the parties hereto
agree as follows:
I. DEFINITIONS
1.1 Definitions. As used in this Agreement, unless the context otherwise
requires, capitalized terms shall have the meanings set forth on Exhibit A
hereto.
II. PURCHASE OF ASSETS
2.1 Purchase and Sale of Assets. On the terms and subject to the
conditions hereof, at the Closing (as defined in Section 5.1), Seller will sell,
transfer, convey, assign and deliver, and Purchaser will purchase and accept,
all of Seller's right, title and interest (subject to Section 2.4) in and to the
rights, properties and assets described in this Section 2.1 (collectively, the
"Assets"), free and clear of all Liens except Permitted Liens:
(a) Product Designs. All right, title and interest of Seller in and
to the Product Designs and the custom analog cells identified on Schedule 2.1(a)
that are used exclusively in the Products;
(b) Tangible Assets. The tangible personal property assets of Seller
identified on Schedule 2.1(b) hereto (the "Tangible Assets");
(c) Technology Deliverables. The design and layout databases for
Products and other technology deliverables identified on Schedule 2.1(c) (the
"Technology Deliverables");
(d) Intangible Assets. The intangible assets, properties and rights
of Seller listed on Schedule 2.1(d) including the Intellectual Property Rights
therein and thereto, all rights to enforce such Intellectual Property Rights,
and all causes of action and rights of
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recovery for past infringement of such Intellectual Property Rights (the
"Intangible Assets"). "Intellectual Property Rights" shall mean all domestic and
foreign letters patent, patents, patent applications, invention disclosures,
copyrights, trade secrets, mask rights, technical knowledge and know-how;
(e) Contracts. Subject to Section 2.3, all rights and incidents of
interest of Seller in and to (i) all purchase orders for the purchase of the
2399 Product outstanding at the time of Closing and entered into in the ordinary
course of business consistent with past practice and (ii) each other Contract
identified on Schedule 2.1(e) (collectively, the "High-End Contracts");
(f) Books and Records. All the books and records of Seller which
relate to product engineering, research and development, and manufacture,
marketing and sale of Products, including, without limitation, customer lists,
backlog information, distributor resale data, internal price books, delivery
performance information, and all outstanding Product price quotes, but only to
the extent that such books and records do not also relate to other products or
products under development of Seller; and
(g) Inventory. Solely with respect to the 2399 Product, the (i)
tested wafers, (ii) assembled untested units and (iii) finished goods inventory
indicated on Schedule 2.1(g) (the "Inventory").
2.2 Excluded Assets. No rights, properties or assets of Seller shall be
included in the Assets except to the extent expressly referenced in Section 2.1.
The Assets shall in no event include (i) any cash or cash equivalents, accounts
receivable, bank accounts or securities, (ii) any insurance policies of Seller,
(iii) claims for refunds of taxes paid by Seller prior to the Closing Date, (iv)
any assets of, or held by or with respect to, any employee benefit plan (whether
or not governed by ERISA) or any trust, fund or account that is related to any
such employee benefit plan or that is similar in purpose or function thereto,
(v) any Product or Product component inventories (other than as specified in
Section 2.1(g) above), (vi) any title or interest in the name "Adaptec, Inc." or
any of Seller's monograms, logos, trademarks (other than with respect to part
numbers as described on Schedule 2.1(d)), trade names, service marks or any
variations or combinations thereof, (vii) any of the Adaptec Technology, Adaptec
Technology Property, Adaptec Patents or Adaptec Trademarks or (viii) any of the
assets listed on Schedule 2.2.
2.3 Nonassignable Contracts.
(a) Nonassignability. To the extent that any High-End Contract to be
assigned pursuant hereto is not capable of being assigned without the consent,
approval or waiver of a third person or entity, nothing in this Agreement will
constitute an assignment or require the assignment thereof except to the extent
provided in this Section 2.3.
(b) Seller to Use Reasonable Efforts. Notwithstanding anything
contained in this Agreement to the contrary, Seller will not be obligated to
assign to Purchaser any of its rights and obligations in and to any of the
High-End Contracts referred to in Section 2.3(a)
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without first having obtained all consents, approvals and waivers necessary for
such assignment; provided, however, that Seller shall use reasonable commercial
efforts to obtain all such consents, approvals and waivers prior to and after
the Closing Date (as defined in Section 5.1).
(c) If Waivers or Consents Cannot Be Obtained. To the extent that
the consents, approvals and waivers referred to in Section 2.3(a) are not
obtained by Seller, Seller shall use reasonable commercial efforts to (a)
provide to Purchaser the financial and business benefits of any High-End
Contract referred to in Section 2.3(a) and (b) and enforce, at the request and
expense of Purchaser, for the account of Purchaser, any rights of Seller arising
from any such High-End Contract (including without limitation the right to elect
to terminate such High-End Contract in accordance with the terms thereof upon
the advice of Purchaser).
(d) Cooperation of Purchaser. Purchaser agrees to cooperate with
Seller and supply relevant information to Seller or such third person or entity
in order to assist Seller in its obligations under this Section 2.3.
Notwithstanding the foregoing, nothing contained herein shall obligate Seller or
Purchaser to expend or pay any amount to third parties to obtain any consents,
approvals or waivers.
2.4 Reservation of Rights. (a) Seller hereby reserves for itself, and
Purchaser hereby grants to Seller, (i) the right to use the Assets without
charge by Purchaser (provided, however, that such right shall not be exercisable
in such a manner as to interfere unreasonably with the normal operations and
business of Purchaser), and (ii) an irrevocable, nonexclusive, royalty-free,
worldwide license to the Assets, in each case, for the limited purposes of
making, using and selling current Products (other than the 2399 Product) through
their "end-of-life" during the period from the Closing to March 31, 1999.
(b) Seller hereby reserves for itself, and Purchaser hereby grants
to Seller, the irrevocable, perpetual, fully-paid and royalty-free, worldwide
right to use and reproduce the custom analog cells identified in Schedule 2.1(a)
for the sole purpose of developing derivative works that are designs and
circuits for semiconductor devices having geometries other than 0.35 micron.
Seller and Purchaser agree that Seller will own all right, title and interest in
and to any and all intellectual property created by or for Seller in the
development of such derivative works, including all rights of ownership therein
and thereto; except that Seller will not have the right to develop, or authorize
third persons to develop, derivative works that are designs or circuits for
semiconductor devices having 0.35 micron geometries. Nothing in this Agreement
is intended to preclude Seller from independently developing analog and other
cells and technology without reference to Assets assigned to Purchaser
hereunder. Purchaser shall otherwise have all right, title and interest
including intellectual property rights (but specifically excluding patents and
related patent rights) in and to the custom analog cells identified in Schedule
2.1(a) having 0.35 micron geometries; and nothing in this Agreement or in the IP
Agreement is intended to preclude Purchaser from developing analog and other
cells with reference to those cells.
III. ASSUMPTION OF LIABILITIES
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3.1 Assumed Liabilities. As of the Closing, Purchaser will assume and
thereafter, in due course, pay and fully satisfy the following liabilities and
obligations of Seller (the "Assumed Liabilities") and no other liabilities or
obligations:
(a) all liabilities and obligations for product warranty claims
arising from the 2399 Products produced or sold by Seller prior to Closing, but
not to exceed $20,000 in the aggregate; and
(b) all liabilities and obligations of Seller under the High-End
Contracts to the extent assigned to Purchaser, or if not so assigned, to the
extent Purchaser has received the financial and business benefits thereof
pursuant to Section 2.3(c), but in any event excluding any obligations arising
from a breach of any High-End Contract prior to Closing.
3.2 Retained Liabilities. Notwithstanding anything contained in this
Agreement to the contrary, Purchaser does not assume or agree to pay, satisfy,
discharge or perform, and will not be deemed by virtue of the execution and
delivery of this Agreement or any document delivered at the Closing pursuant to
this Agreement, or as a result of the consummation of the transactions
contemplated by this Agreement, to have assumed, or to have agreed to pay,
satisfy, discharge or perform, any liability, obligation or indebtedness of
Seller other than the Assumed Liabilities (such liabilities and obligations
retained by Seller being referred to herein as the "Retained Liabilities").
Without limiting the foregoing, Seller acknowledges and confirms that all
liabilities and obligations for product warranty claims arising from Seller's
manufacture or sale of current Products (other than the product warranty
obligations in respect of the 2399 Products expressly assumed pursuant to
Section 3.1(a)) constitute Retained Liabilities. It is specifically agreed that
Seller shall remain liable for all the Retained Liabilities and Seller agrees to
discharge the Retained Liabilities as and when the same become due and payable
and to promptly discharge any action or claim in respect thereof.
IV. PURCHASE PRICE
4.1 Purchase Price. In consideration of the conveyance to Purchaser of
the Assets and the other rights granted to Purchaser pursuant hereto and subject
to the conditions and in accordance with terms hereof, Purchaser shall (a) pay
to Seller $8,313,403.80, payable in installments on the dates specified below
(the "Purchase Price"), and (b) assume the Assumed Liabilities. At the Closing,
Purchaser will pay $4,313,403.80 of the Purchase Price ($313,403.80 of which is
attributable to the Inventory) to Seller (the "Closing Date Payment") and
Purchaser will assume the Assumed Liabilities. On the date three months after
the Closing Date, Purchaser will pay to Seller an additional $2,000,000 of the
Purchase Price. On the date six months after the Closing Date, Purchaser will
pay to Seller the remaining $2,000,000 of the Purchase Price.
4.2 Allocation of Purchase Price. Purchaser and Seller agree to consult
with each other with respect to the allocation of the Purchase Price and Assumed
Liabilities to the Assets
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for tax purposes; provided, however, that nothing contained herein shall be
deemed to obligate either Purchaser or Seller to reach agreement with respect to
such allocation.
4.3 License Fees and Royalties. In addition to the foregoing, the
Purchaser will pay Seller license fees and royalties in accordance with the
terms of the IP Agreement (the "License Fees and Royalties").
V. CLOSING
5.1 Closing. The consummation of the transactions contemplated hereby
(the "Closing") shall take place at the offices of Seller, 000 Xxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx, on November 6, 1998 (the "Closing Date"),
immediately following the execution and delivery of this Agreement.
5.2 Deliveries at Closing. At the Closing:
(a) Seller shall deliver to Purchaser the items described in clauses
(i) through (vi) below:
(i) a Xxxx of Sale, substantially in the form attached hereto as
Exhibit B (the "Xxxx of Sale"), executed by Seller;
(ii) an Assignment of Contracts, substantially in the form
attached hereto as Exhibit C (the "Assignment of Contracts"), executed by
Seller;
(iii) the High End Disk Drive Electronics Technology License
Agreement, substantially in the form attached hereto as Exhibit D (the "IP
Agreement"), executed by Seller;
(iv) the Occupancy License Agreement, substantially in the form
attached hereto as Exhibit E (the "Sublease Agreement"), executed by Seller;
(v) all third party consents identified on Schedule 5.2(v)
hereto; and
(vi) evidence that the party signing on behalf of Seller is
authorized to do so.
(b) Purchaser shall deliver to Seller the items described in clauses
(i) through (vi) below:
(i) the Closing Date Payment by wire transfer of immediately
available funds to the account designated by Seller no later than two Business
Days prior to Closing;
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(ii) an Assumption of Liabilities Agreement pursuant to which
Purchaser assumes at Closing the Assumed Liabilities, substantially in the form
attached hereto as Exhibit F (the "Assumption Agreement"), executed by
Purchaser;
(iii) the IP Agreement, executed by Purchaser;
(iv) the Sublease Agreement, executed by Purchaser;
(v) evidence that the party signing on behalf of Purchaser is
authorized to do so; and
(vi) the amount of $229,899.33, representing the Transaction
Taxes collectible by Seller pursuant to Section 10.15.
(c) The Xxxx of Sale, Assignment of Contracts, IP Agreement,
Sublease Agreement and Assumption Agreement shall constitute, collectively, the
"Collateral Agreements."
5.3 Delivery of Purchased Assets. Title to the Assets passes to
Purchaser as of the Closing at the applicable places of business of Seller.
Promptly following the Closing, Seller will place Purchaser in full possession
and control of the Assets and all other information to be provided in accordance
with the terms of the IP Agreement, provided, however, that Seller need not
deliver the Inventory to be transferred to Purchaser pursuant to Section 2.1(g)
prior to November 7, 1998, and, provided further that, to the extent that the
Inventory actually delivered by Seller differs from the amounts described on
Schedule 2.1(g), Purchaser or Seller, as the case may be, will make a payment to
the other (promptly following such delivery) reflecting the increase or
decrease, respectively, in the amount of Inventory so delivered (with such
payment to be calculated pro rata on the basis of $313,403.80 allocated to the
Inventory described on Schedule 2.1(g)). All information capable of electronic
transmission will be transmitted to Purchaser in such manner. All other assets
and information (other than Assets to remain on the premises of Seller during
the term of the Sublease Agreement) will be delivered by Seller to the business
locations of Purchaser designated by Purchaser by means of delivery reasonably
designated by Purchaser, but at Seller's cost and risk of loss.
VI. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller makes the following representations and warranties to Purchaser,
each of which shall be true and correct (except as set forth in the Disclosure
Schedule attached hereto as Schedule 6) as of the date hereof and shall be
unaffected by any investigation heretofore or hereafter made.
6.1 Organization and Good Standing. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the
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requisite corporate power and authority to own, lease or otherwise hold its
properties and assets and to carry on its business as presently conducted.
6.2 Authorization and Effect of Agreement. Seller has the requisite
corporate power and authority to execute and to deliver this Agreement and to
perform the transactions contemplated hereby. The execution and delivery by
Seller of this Agreement and the performance by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Seller. This Agreement has been duly executed and delivered by
Seller and constitutes a valid and binding agreement of Seller, enforceable
against Seller in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, and similar laws affecting creditors' rights and
remedies generally and subject, as to enforceability, to general principles of
equity. Each of the Collateral Agreements, when executed and delivered by Seller
at Closing, will constitute a valid and binding agreement of Seller, enforceable
against Seller in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, and similar laws affecting creditors' rights and
remedies generally and subject, at to enforceability, to general principles of
equity.
6.3 No Conflicts. The execution and delivery of this Agreement and the
Collateral Agreements by Seller does not, and the performance by Seller of the
transactions contemplated by this Agreement and the Collateral Agreements will
not, (i) give rise to the creation of a Lien upon any of the Assets (other than
in favor of Purchaser or as explicitly contemplated by this Agreement or the
Collateral Agreements), (ii) give rise to a right of termination, cancellation
or acceleration of any material obligation or to a loss of a material benefit
under any of the High-End Contracts, or (iii) conflict with, or result in any
violation of, or constitute a default under or (a) any provision of the
Certificate of Incorporation or Bylaws of Seller, (b) any of the terms,
conditions or provisions of any Contract by which any of the Assets are bound,
or (c) any Law or Order applicable to or binding on Seller or the Assets. Except
as set forth on Schedule 6.3 hereto, no Consent is required to be obtained, made
or given (whether pursuant to applicable Law, Contract or otherwise) in
connection with the execution and delivery of this Agreement by Seller or the
performance by Seller of the transactions contemplated hereby.
6.4 No Third Party Options. Except as may be set forth in the High-End
Contracts to which Western Digital Corporation is a party, there are no existing
agreements, options or commitments granting to any Person the right to acquire
any of the Assets or any material interest therein.
6.5 Intellectual Property.
(a) Ownership. Seller owns or possesses licenses or other rights to
use the Product Designs, the Intangible Assets and the Technology Deliverables
and the Adaptec Technology, Adaptec Technology Property, Adaptec Patents and
Adaptec Trademarks (collectively referred to as "Proprietary Rights") and has
the rights to sell, assign, transfer, license and deliver, as applicable, such
Proprietary Rights to Purchaser as contemplated in this Agreement and the IP
Agreement without any required consent of any third party other than those
identified on Schedule 6.3 hereto, each of which required consents that are also
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identified on Schedule 5.2(v) has been previously secured. Neither Seller nor
any subsidiary of Seller has granted to any third party any license or other
right to use any of the Proprietary Rights that are to be sold to Purchaser
hereunder. With respect to Proprietary Rights that are to be exclusively
licensed to Purchaser under the IP Agreement, neither Seller nor any subsidiary
of Seller has granted to any third party any license or other right to use such
exclusively licensed Proprietary Rights within Purchaser's Exclusive Field of
Use (as defined in the IP Agreement). Seller has not asserted and does not
assert any trade dress rights with respect to the packaging of any Product.
(b) No Infringement. Except as set forth on the Disclosure Schedule,
to the knowledge of Seller, the Proprietary Rights do not conflict with or
infringe, and no one has asserted to Seller that such rights conflict with or
infringe, any proprietary rights of any third party. Except as set forth on the
Disclosure Schedule, there are no claims, disputes, actions, proceedings, suits
or appeals pending against Seller with respect to any Proprietary Rights, and to
the knowledge of Seller, none has been threatened against Seller. Except as set
forth on the Disclosure Schedule, to the knowledge of Seller, there are no facts
or alleged facts which would reasonably serve as a basis for any claim that
Seller does not have the right to use, free of any rights or claims of others,
all Proprietary Rights in the design, development, manufacture, use, sale and
other disposition of any or all of the Products.
(c) Effective Transfer of Rights. Pursuant to this Agreement and the
documents, instruments and agreements contemplated hereby, Seller will, as
applicable, (i) license the Adaptec Technology, Adaptec Technology Property,
Adaptec Patents and Adaptec Trademarks and (ii) transfer good title to the
Product Designs, Intangible Assets and Technology Deliverables to Purchaser.
Schedule 6.5(c) sets forth and summarizes each material Intellectual Property
Right in connection with the development, manufacture, use or sale of the
Products that a third party owns and that Seller uses pursuant to a license,
sublicense, agreement or other permission, except for licenses entered into in
the ordinary course of its business or standard "shrink-wrap" licenses for
off-the-shelf software products.
(d) No infringement by Third Parties. To Seller's knowledge, the
Proprietary Rights sold to Purchaser hereunder or exclusively licensed to
Purchaser under the IP Agreement are not infringed by any third party, and
Seller has not asserted against any third party that such rights are infringed
by such third party.
6.6 Litigation. There are no judicial or administrative actions,
proceedings or investigations pending or, to Seller's knowledge, threatened that
question the validity of this Agreement or any action taken or to be taken by
Seller in connection with this Agreement. There are no lawsuits, claims,
administrative or other proceedings or investigations (to which Seller is a
party or is subject) relating to or adversely affecting the Assets pending, or,
to Seller's knowledge, threatened against Seller. There are no judgments, orders
or decrees of any Governmental Authority binding on Seller that relate to or
adversely affect the Assets.
6.7 Title to and Condition of Assets. Seller has, and at Closing, Seller
will convey to Purchaser, good, valid and indefeasible title to the Assets, free
and clear of all Liens other than Permitted Liens. All of the Tangible Assets
are in good operating condition and repair,
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subject to normal wear, are usable in the regular and ordinary course of
business and conform to all applicable Laws.
6.8 Products. (a) Schedule 6.8(a) sets forth, or provides references to,
the terms and conditions of all product warranties and intellectual property
indemnities extended by the Seller to purchasers of the Products during the
preceding three years (or, if shorter, during the period that Seller has sold a
given Product).
(b) Schedule 6.8(b) sets forth Seller's product warranty, product
return and product liability experience for the Products during the twelve month
period ending September 30, 1998 (or, if shorter, during the period that Seller
has sold a given Product).
(c) The 2399 Product finished goods inventory set forth on Schedule
2.1(g) hereto is free of defects in material and workmanship and meets all
applicable customer specifications. The 2399 Product tested wafer and assembled
untested units inventory set forth on Schedule 2.1(g) hereto is of a quality and
condition usable in the ordinary course of business, provided, however, that
Seller represents and warrants, as to the usable yield with respect to such
inventories, only that Seller has no reason to believe that such usable yields
will differ materially from the usable yields previously experienced by Seller
for such 2399 Product.
6.9 Contracts. Seller has provided Purchaser with a complete copy of
each of the High-End Contracts. To Sellers knowledge, the High-End Contracts are
valid and enforceable in accordance with their terms. Seller is not, and to
Seller's knowledge, no other party thereto is, in material default in the
performance, observance or fulfillment of any obligation under the High-End
Contracts, and no event has occurred which with or without the giving of notice
or lapse of time, or both, would constitute a material default thereunder.
Except as listed on Schedule 6.3 hereto, none of the High-End Contracts requires
the consent of any party to its assignment in connection with the transactions
contemplated hereby.
6.10 Customers. Schedule 6.10 hereto set forth a list of each purchaser
of Products during the twelve months ending September 30, 1998, showing the
approximate total sales (expressed in dollars), by Product, to each such
customer during the twelve months ending September 30, 1998.
6.11 Year 2000 Compliance. The Products are not Date-Sensitive Systems.
For purposes of this Agreement "Date-Sensitive System" means any software,
microcode, or hardware system or component, including any electronic or
electronically controlled system or component, that processes any data that
includes date information or which is otherwise derived from, dependent on or
related to date information.
6.12 Disclosure. The representations and warranties of Seller contained
herein, and the statements of Seller contained in any document or other
instrument to be furnished by Seller to Purchaser in connection with the
transactions contemplated hereby, when taken together, do not contain any untrue
statement of a material fact or omit to state a material fact
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necessary to make the representations, warranties and statements so made, in
the light of the circumstances under which they were made, not misleading.
VII. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby makes the following representations and warranties to
Seller, each of which shall be true and correct as of the date hereof and shall
be unaffected by any investigation heretofore or hereafter made.
7.1 Corporate Organization. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the requisite corporate power and authority to own, lease or otherwise
hold its properties and assets and to carry on its business as presently
conducted.
7.2 Authorization and Effect of Agreement. Purchaser has the requisite
corporate power and authority to execute and deliver this Agreement and to
perform the transactions contemplated hereby. The execution and delivery by
Purchaser of this Agreement and the performance by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Purchaser. This Agreement has been duly executed and delivered by
Purchaser and constitutes a valid and binding agreement of Purchaser,
enforceable against Purchaser in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and subject, as to enforceability, to
general principles of equity. Each of the Collateral Agreements, when executed
and delivered by Purchaser at Closing, will constitute a valid and binding
agreement of Purchaser, enforceable against Purchaser in accordance with its
terms, subject to applicable bankruptcy, reorganization, moratorium, and similar
laws affecting creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity.
7.3 No Conflicts. The execution and delivery of this Agreement and the
Collateral Agreements by Purchaser does not, and the performance by Purchaser of
the transactions contemplated by this Agreement and the Collateral Agreements
will not, conflict with, or result in any violation of, or constitute a default
under (a) any provision of the Certificate of Incorporation or Bylaws of
Purchaser, (b) any of the terms, conditions, or provisions of any agreement or
other document by which Purchaser is bound, or (c) any Law or Order applicable
to or binding on Purchaser. No Consent is required to be obtained, made or given
(whether pursuant to applicable Law, Contract or otherwise) in connection with
the execution and delivery of this Agreement by Purchaser or the performance by
Purchaser of the transactions contemplated hereby.
7.4 Litigation. There are no judicial or administrative actions,
proceedings or investigations pending or, to Purchaser's knowledge, threatened
that question the validity of this Agreement or any action taken or to be taken
by Purchaser in connection with this Agreement.
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VIII. COVENANTS
8.1 Covenant Not to Compete. (a) Seller agrees that prior to the second
anniversary of the Closing Date, neither Seller nor any entity that is
majority-owned or controlled by Seller will own a 20% or greater equity interest
in, or manage, operate, control or participate in the management, operation or
control of, any business, whether in corporate, proprietorship or partnership
form or otherwise, engaged in the design, development, manufacturing, marketing
or sale of products or components for High-End Applications, provided, however,
that Seller will otherwise retain all rights to design, develop, manufacture,
market, sell, license, lease or otherwise exploit all of the Adaptec Technology,
Adaptec Technology Property, Adaptec Patents and Adaptec Trademarks (subject to
the exclusive licenses granted with respect to portions of the Adaptec
Technology Property in the IP Agreement).
(b) Notwithstanding the foregoing, Seller may, (A) exercise its
rights under Section 2.4 to make, use and sell the current Products (other than
the 2399 Product) through their "end-of-life", and (B) in connection with the
sale and/or license of all or substantially all of the remaining assets in its
peripheral technology solutions business unit, receive, own, and exercise all
rights pursuant to, any minority (20% or less) equity interest in a purchaser or
licensor of such technology and/or business. In no event shall any of (i) such
ownership, (ii) the exercise of any rights pursuant to such ownership, or (iii)
any subleases or short-term (one year or less) manufacturing, supply or other
commercial agreements entered into and performed by Seller and such purchaser or
licensor in connection with, and related to the assets or business that are the
subject of, such sale and/or license, constitute a violation of Section 8.1(a),
regardless of the business activities of such purchaser or licensor.
8.2 Confidentiality. (a) Seller and Purchaser agree that from and after
the Closing, Seller and Purchaser will continue to be bound by the terms of that
certain undated Master Mutual Nondisclosure Agreement between the parties signed
on or about September 14, 1998 (the "NDA"), provided however, that any
confidential information sold by Seller to Purchaser hereunder or disclosed in
connection with, or pursuant to, this Agreement or the IP Agreement, shall be
subject to the terms of Section 8.2(b) of this Agreement in lieu of being
subject to the NDA.
(b) Each party agrees that (i) it will not use any Confidential
Information of the other party except as expressly permitted under this
Agreement or the IP Agreement, and (ii) it will maintain all Confidential
Information of the other party in strict confidence and will not disclose the
other party's Confidential Information to any third parties except to employees
and consultants with a bona fide need to know, provided that each such employee
and consultant is subject to written nondisclosure and limited use restrictions
at least as protective as those set forth herein. Each party will use its best
efforts to prevent inadvertent disclosure, publication or dissemination of any
of the other party's Confidential Information and will promptly notify the other
party in writing of any actual or suspected unauthorized use or disclosure of
its Confidential Information. For purposes of this Section 8.2, "Confidential
Information" shall mean any confidential information sold by Seller to Purchaser
hereunder or disclosed in connection with, or pursuant to, this Agreement or the
IP Agreement, including, without
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limitation, methods of operation, customers, and customer lists, products,
proposed products, former products, prices, fees, costs, plans, designs,
technology, inventions, trade secrets, know-how, software, marketing methods,
policies, plans, personnel, suppliers, competitors, markets or other specialized
information or proprietary matters. The term Confidential Information does not
include, and there shall be no obligation hereunder with respect to, information
that (i) is generally available to the public on the date of this Agreement,
(ii) becomes generally available to the public through no fault or breach of the
receiving party, (iii) is independently developed by the receiving party without
use of or reference to any Confidential Information of the disclosing party, as
established by documentary evidence or (iv) the receiving party rightfully
obtains from other sources without restriction on use or disclosure (where such
sources have not violated any confidentiality obligations to the disclosing
party). A party shall not have any obligation to keep confidential any
Confidential Information of the other party if and to the extent disclosure
thereof is specifically required by Law; provided, however, that in the event
disclosure is required by applicable Law, such party shall, to the extent
reasonably possible, provide such other party with prompt notice of such
requirement prior to making any disclosure so that such other party may seek an
appropriate protective order.
8.3 Specific Performance. The parties hereto specifically acknowledge
and agree that the remedy at law for any breach of Section 8.1 or 8.2 will be
inadequate and that Purchaser, in addition to any other relief available to it,
shall be entitled to temporary and permanent injunctive relief without the
necessity of proving actual damage.
8.4 Product Warranty Matters. Seller acknowledges that it has retained
liability for certain Product warranty claims pursuant to Section 3.2. Purchaser
will address and remedy all product warranty claims asserted following the
Closing Date with respect to the 2399 Products produced or sold by Seller prior
to Closing. Subject to the limitations in Section 9.2, Seller will reimburse
Purchaser for all costs and expenses in excess of $20,000 in the aggregate
incurred in remedying such product warranty claims. All such sums shall be
payable within 30 days following receipt of Purchaser's invoice and shall
thereafter bear interest at ten percent per annum until paid. For a period of
two years following the Closing, Purchaser will provide all technical and
manufacturing support to Seller (the "Support") reasonably requested by Seller
in connection with both (i) Seller's exercise of its rights under Section 2.4 to
make, use and sell the current Products (other than the 2399 Product) through
their "end-of-life" and (ii) addressing and remedying all product warranty
claims asserted with respect to all Products produced or sold by Seller (other
than the 2399 Products). Purchaser will record all of its out-of-pocket expenses
incurred by Purchaser directly attributable to providing the Support and the
time spent by its technical personnel providing the Support at a rate of $100
per hour (the "Recorded Expenses"). The Support will be provided by Purchaser
free of any charge to Seller provided that the Recorded Expenses for the first
three-month period following the Closing, the second three-month period
following the Closing, and each subsequent three month period, do not exceed,
$15,000, $10,000 and $5,000, respectively. In the event that the Recorded
Expenses with respect to a given three-month period exceed the applicable limit
in the preceding sentence, then Seller will pay to Purchaser the full amount of
the Recorded Expenses for that three-month period only.
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8.5 Maintenance of Books and Records. (a) Each of Seller and Purchaser
shall preserve until the seventh anniversary of the Closing Date all records
possessed by such party relating to the Assets. After the Closing Date, if it is
reasonably necessary that any party hereto or any successors be furnished with
additional information relating to the Assets in order properly to prepare
documents required to be filed with a Governmental Authority (including Tax
authorities) or such party's financial statements, then the other party shall
provide such party with reasonable access, upon prior reasonable written request
specifying the need therefor, during regular business hours, to (i) the relevant
employees of such other party and (ii) the books of account and records of such
other party, but, in each case, only to the extent relating to the Assets, and
such party and its representatives shall have the right to make copies of such
books and records; provided, however, that the foregoing right of access shall
not be exercisable in such a manner as to interfere unreasonably with the normal
operations and business of such other party.
(b) After the Closing Date, upon the request of Purchaser, Seller
will promptly provide Purchaser with a copy of any records possessed by Seller
as of this date which are material to the commercialization of the Products by
Purchaser. After the Closing Date, to the extent that it is reasonably necessary
in order to prepare documents to be filed with the PTO (i) with respect to the
patents (including those identified as "in process") listed on Schedule 2.1(d),
Seller shall provide Purchaser with reasonable access to the inventors of the
subject of such patents provided that such inventors remain in the employ of
Seller, and (ii) with respect to the patents (including those identified as "in
process") licensed to Purchaser under the IP Agreement, Purchaser shall provide
Seller with reasonable access to the inventors of the subject of such patents to
the extent that such inventors are hereafter employed by Purchaser.
(c) To the extent that the information disclosed pursuant to this
Section 8.5 constitutes the Confidential Information of such other party, the
requesting party shall be bound by the terms of Section 8.2 with respect to such
Confidential Information.
(d) Records described in this Section 8.5 may nevertheless be
destroyed by a party if such party sends the other party written notice of its
intent to destroy records, specifying with particularity the contents of the
records to be destroyed. Such records may then be destroyed after the 30th day
following delivery of such notice unless the other party objects to the
destruction, in which case the party seeking to destroy the records shall either
agree to retain such records or to deliver such records to the objecting party.
8.6 Manufacturing Support. From the date of the Closing through November
6, 1998, Seller will make appropriate technical personnel available to provide a
reasonable level of training and manufacturing support to Purchaser in
connection with the transition of the manufacturing of the 2399 Product without
charge. Further, Seller will notify TSMC that it may sell Purchaser time on
SC212 testers (owned by Seller and located at TSMC) for a period of 6 months
following the Closing (the "Transition Period"). The parties agree and
acknowledge that Purchaser will negotiate with TSMC regarding the cost of such
use and Seller will separately negotiate with TSMC regarding compensation to be
received by Seller from TSMC with respect to such use, provided, however, that
Seller will use all commercially
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reasonable efforts to ensure that Purchaser is allocated the equivalent of
full-time use of one SC212 tester during the Transition Period.
8.7 Miscellaneous Employee Matters. (a) To the fullest extent permitted
by Law, Seller will assign to Purchaser (as its successor in interest), and
Purchaser will accept, any and all of Seller's rights, privileges, entitlements
and obligations in and to the existing immigration petitions and/or labor
certification applications filed on behalf of Sushio Xxxxxxxx and Xxx Xxxx.
(b) Purchaser and Seller reaffirm their respective obligations under
that certain letter agreement between Purchaser and Seller dated October 1,
1998.
IX. SURVIVAL AND INDEMNIFICATION
9.1 Survival of Representations, Warranties and Covenants. (a) The
representations and warranties of Seller and Purchaser contained in this
Agreement shall survive the Closing until the expiration of two years from the
Closing Date. Any claim for an Indemnifiable Loss (as defined in Section 9.2)
asserted within such period of survival as herein provided will be timely made
for purposes hereof. Notwithstanding anything herein to the contrary, no claim
for indemnification under this Agreement may be brought after the one year
anniversary of the Closing Date.
(b) Unless a specified period is set forth in this Agreement with
respect to any covenant (in which event such specified period will control and
such covenant will expire upon expiration of such specified period), the
covenants in this Agreement will survive the Closing and remain in effect
indefinitely.
9.2 Limitations on Liability. (a) For purposes of this Agreement, (i)
"Indemnity Payment" means any amount of Indemnifiable Losses required to be paid
pursuant to this Agreement, (ii) "Indemnitee" means any person or entity
entitled to indemnification under this Agreement, (iii) "Indemnifying Party"
means any person or entity required to provide indemnification under this
Agreement, (iv) "Indemnifiable Losses" means any and all damages, losses,
liabilities, obligations, costs and expenses, and any and all claims, demands or
suits (by any person or entity, including, without limitation, any Governmental
Authority), including, without limitation, the costs and expenses of any and all
actions, suits, proceedings, demands, assessments, judgments, settlements and
compromises relating thereto and including reasonable attorneys' fees and
expenses in connection therewith, and (v) "Third Party Claim" means any claim,
action or proceeding made or brought by any person or entity who or which is not
a party to this Agreement.
(b) Notwithstanding any other provision hereof or of any applicable
Law, (i) no Indemnitee will be entitled to make a claim against an Indemnifying
Party under Sections 9.3(a)(i) or (ii), or 9.3(b)(i) or (ii), as applicable,
unless and until the aggregate amount of claims asserted for Indemnifiable
Losses under Sections 9.3(a)(i) and (ii), with respect to claims by Purchaser,
or 9.3(b)(i) and (ii), with respect to claims by Seller, exceeds
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$100,000, in which event the Indemnitee will be entitled to make a claim against
the Indemnifying Party in respect of Indemnifiable Losses only to the extent of
such excess and (ii) no Indemnitee shall be liable for Indemnity Payments under
Sections 9.3(a)(i) or (ii)(other than with respect to a breach of Section 8.1
which is continuing and uncured 30 days after Seller's receipt of written notice
from Purchaser of such a breach), or 9.3(b)(i) or (ii), as applicable, or
payments under Section 8.4, to the extent that the aggregate of such Indemnity
Payments by such Indemnifying Party together with the payments by such
Indemnifying Party under Section 8.4 exceeds 50% of the aggregate amounts paid
by Purchaser to Seller pursuant to Section 4.1 of this Agreement and Section 6.1
of the IP Agreement.
9.3 Indemnification. (a) Subject to Sections 9.1 and 9.2, Seller agrees
to indemnify, defend and hold harmless Purchaser from and against any and all
Indemnifiable Losses resulting from or arising out of:
(i) any failure of a representation or warranty of Seller
contained in this Agreement to be true and correct as of the Closing Date;
(ii) any breach of any agreement or covenant of Seller contained
in this Agreement; and
(iii) any third party claims regarding Retained Liabilities
arising out of the operation of the Seller's business prior to the Closing which
relate to (A) a lien on the Assets that secures indebtedness, (B) failure to
comply with any "bulk sales" laws applicable to the transactions contemplated
hereby, or (C) an assertion by such third party of a successor liability claim.
(b) Purchaser agrees to indemnify, defend and hold harmless Seller
from and against any and all Indemnifiable Losses resulting from or arising out
of:
(i) any failure of a representation or warranty of Purchaser
contained in this Agreement to be true and correct as of the Closing Date;
(ii) any breach of any agreement or covenant of Purchaser
contained in this Agreement; and
(iii) any Assumed Liabilities.
9.4 Defense of Claims. (a) If any Indemnitee receives notice of
assertion or commencement of any Third Party Claim against such Indemnitee with
respect to which an Indemnifying Party is obligated to provide indemnification
under this Agreement, the Indemnitee will give such Indemnifying Party
reasonably prompt written notice thereof, but in any event not later than 15
calendar days after receipt of such notice of such Third Party Claim. Such
notice will describe the Third Party Claim in reasonable detail, will include
copies of all material written evidence thereof and will indicate the estimated
amount, if reasonably practicable, of the Indemnifiable Loss that has been or
may be sustained by the Indemnitee. The Indemnifying Party will have the right
to participate in, or, by giving written
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notice to the Indemnitee, to assume, the defense of any Third Party Claim at
such Indemnifying Party's own expense and by such Indemnifying Party's own
counsel (reasonably satisfactory to the Indemnitee), and the Indemnitee will
cooperate in good faith in such defense.
(b) If, within 30 calendar days after giving notice of a Third Party
Claim to an Indemnifying Party pursuant to Section 9.4(a), an Indemnitee
receives written notice from the Indemnifying Party that the Indemnifying Party
has elected to assume the defense of such Third Party Claim as provided in the
last sentence of Section 9.4(a), the Indemnifying Party will not be liable for
any legal expenses subsequently incurred by the Indemnitee in connection with
the defense thereof; provided, however, that if the Indemnifying Party fails to
take reasonable steps necessary to defend diligently such Third Party Claim
within 30 calendar days after receiving written notice from the Indemnitee that
the Indemnitee believes the Indemnifying Party has failed to take such steps or
if the Indemnifying Party has not undertaken to indemnify the Indemnitee in
respect of all Indemnifiable Losses relating to the matter, the Indemnitee may
assume its own defense, and the Indemnifying Party will be liable for all
reasonable costs or expenses paid or incurred in connection therewith. Without
the prior written consent of the Indemnitee, the Indemnifying Party will not
enter into any settlement of any Third Party Claim which would lead to liability
or create any financial or other obligation on the part of the Indemnitee for
which the Indemnitee is not entitled to indemnification hereunder. If a firm
offer is made to settle a Third Party Claim without leading to liability or the
creation of a financial or other obligation on the part of the Indemnitee for
which the Indemnitee is not entitled to indemnification hereunder and the
Indemnifying Party desires to accept and agree to such offer, the Indemnifying
Party will give written notice to the Indemnitee to that effect. If the
Indemnitee fails to consent to such firm offer within 10 calendar days after its
receipt of such notice, the Indemnitee may continue to contest or defend such
Third Party Claim and, in such event, the maximum liability of the Indemnifying
Party as to such Third Party Claim will not exceed the amount of such settlement
offer, plus costs and expenses paid or incurred by the Indemnitee through the
end of such 10 calendar day period.
(c) A failure to give timely notice or to include any specified
information in any notice as provided in Sections 9.4(a) or 9.4(b) will not
affect the rights or obligations of any party hereunder except and only to the
extent that, as a result of such failure, any party which was entitled to
receive such notice was deprived of its right to recover any payment under its
applicable insurance coverage or was otherwise damaged as a result of such
failure.
(d) The Indemnifying Party will have a period of 30 calendar days
within which to respond in writing to any claim by an Indemnitee on account of
an Indemnifiable Loss pursuant to Section 9.3 that does not result from a Third
Party Claim (a "Direct Claim"). If the Indemnifying Party does not so respond
within such 30 calendar day period, the Indemnifying Party will be deemed to
have rejected such claim. In the event the Indemnifying Party rejects, or is
deemed to have rejected, a Direct Claim, the Indemnitee will be free to pursue
such remedies as are available at law or in equity in respect of such Direct
Claim.
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9.5 Exclusive Remedy. From and after the Closing Date, to the extent
permitted by law, the foregoing provisions of this Article IX are the sole and
exclusive remedy of Purchaser (other than temporary and/or permanent injunctive
relief) for any and all breaches of representations, warranties, covenants or
agreements of Seller contained in this Agreement.
X. MISCELLANEOUS PROVISIONS
10.1 Notices. All notices and other communications required or permitted
hereunder will be in writing and, unless otherwise provided in this Agreement,
will be deemed to have been duly given when delivered in person or when
dispatched by electronic facsimile transfer (confirmed in writing by mail
simultaneously dispatched) or one business day after having been dispatched by a
nationally recognized overnight courier service to the appropriate party at the
address specified below:
(a) If to Seller, to:
Adaptec, Inc.
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile No.: (000) 000-0000
with a copy to:
Adaptec, Inc.
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
(b) If to Purchaser, to:
Texas Instruments Incorporated
0000 Xxxxxxxxx Xxx, X/X 0000
Xxxxxx, Xxxxx 00000
- or -
X.X. Xxx 000000, X/X 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Texas Instruments Incorporated
0000 Xxxxxx Xxxx, X/X 0000
Xxxxxx, Xxxxx 00000
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- or -
X.X. Xxx 000000, X/X 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
or to such other address or addresses as any such party may from time to time
designate as to itself by like notice.
10.2 Expenses. Except as otherwise expressly provided herein, each party
hereto will pay any expenses incurred by it incident to this Agreement and in
preparing to consummate and consummating the transactions provided for herein.
10.3 Successors and Assigns. This Agreement will be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns, but will not be assignable or delegable by any party without
the prior written consent of the other party; provided, however, that upon
notice to the other party, either party may assign or delegate any or all of
their rights or obligations under this Agreement to any Affiliate thereof or to
any Person that directly or indirectly acquires, after the Closing, all or
substantially all of the assets or voting stock of such party.
10.4 Waiver. Purchaser may, by written notice to Seller, and Seller may,
by written notice to Purchaser, (a) extend the time for performance of any of
the obligations of the other party under this Agreement, (b) waive any
inaccuracies in the representations or warranties of the other party contained
in this Agreement, (c) waive compliance with any of the conditions or covenants
of the other party contained in this Agreement, or (d) waive or modify
performance of any of the obligations of the other party under this Agreement;
provided, however, that no such party may, without the prior written consent of
the other parties, make or grant such extension of time, waiver of inaccuracies
or compliance or waiver or modification of performance with respect to its
representations, warranties, conditions or covenants hereunder. Except as
provided in the immediately preceding sentence, no action taken pursuant to this
Agreement will be deemed to constitute a waiver of compliance with any
representations, warranties, conditions or covenants contained in this Agreement
and will not operate or be construed as a waiver of any subsequent breach,
whether of a similar or dissimilar nature.
10.5 Entire Agreement; Disclosure Schedules. This Agreement, which
includes the schedules and exhibits hereto, supersedes any other agreement,
whether written or oral, that may have been made or entered into by any party
relating to the matters contemplated hereby and, together with the NDA,
constitutes the entire agreement by and among the parties hereto.
Notwithstanding the foregoing, that certain letter agreement dated September 30,
1998, between the parties addressing certain Seller employee matters shall
continue in full force and effect.
10.6 Amendments, Supplements, Etc. This Agreement may be amended or
supplemented at any time by additional written agreements as may mutually be
determined by
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Purchaser and Seller to be necessary, desirable or expedient to further the
purposes of this Agreement or to clarify the intention of the parties.
10.7 Rights of the Parties. Nothing expressed or implied in this
Agreement is intended or will be construed to confer upon or give any Person
other than the parties hereto any rights or remedies under or by reason of this
Agreement or any transaction contemplated hereby.
10.8 Further Assurances. From time to time, as and when requested by any
party hereto, the other party will execute and deliver, or cause to be executed
and delivered, all such documents and instruments, make such other deliveries
and take such other actions as may be reasonably necessary to consummate the
transactions contemplated by this Agreement.
10.9 Applicable Law. This Agreement and the legal relations among the
parties hereto will be governed by and construed in accordance with the rules
and substantive Laws of the State of California, United States of America,
without regard to conflicts of law provisions thereof.
10.10 Execution in Counterparts. This Agreement may be executed in two
or more counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same agreement.
10.11 Titles and Headings. Titles and headings to Sections herein are
inserted for convenience of reference only, and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
10.12 Invalid Provisions. If any provision of this Agreement is held to
be illegal, invalid, or unenforceable under any present or future Law, and if
the rights or obligations under this Agreement of Seller on the one hand and
Purchaser on the other hand will not be materially and adversely affected
thereby, (a) such provision will be fully severable; (b) this Agreement will be
construed and enforced as if such illegal, invalid, or unenforceable provision
had never comprised a part hereof; (c) the remaining provisions of this
Agreement will remain in full force and effect and will not be affected by the
illegal, invalid, or unenforceable provision or by its severance from this
Agreement; and (d) in lieu of such illegal, invalid, or unenforceable provision,
there will be added automatically as a part of this Agreement a legal, valid,
and enforceable provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible.
10.13 Bulk Sales. Subject to the provisions of Article IX of this
Agreement, Purchaser waives compliance by Seller with the provisions of the
so-called bulk sales Law of any applicable jurisdiction.
10.14 Transfers. Purchaser and Seller will cooperate and take such
action as may be reasonably requested by the other in order to effect an orderly
transfer of the Assets with a minimum of disruption to the operations and
employees of the businesses of Purchaser and Seller.
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10.15 Transfer Taxes. All sales, use, transfer, stamp, conveyance, value
added or other similar taxes, duties, excises or governmental charges imposed by
any taxing jurisdiction, domestic or foreign, and all recording or filing fees,
notarial fees or other similar costs of Closing with respect to the transfer of
the Assets or otherwise on account of this Agreement or the transactions
contemplated hereby (the "Transaction Taxes") will be borne by Purchaser, and,
to the extent that there are any collection or withholding obligations on the
part of Seller, shall be payable by Purchaser at the Closing. Subject to the
agreement regarding the allocation of the Purchase Price in Section 4.2, Seller
and Purchaser shall use all commercially reasonable efforts to cooperate in
order to minimize the Transaction Taxes.
10.16 Brokers. Purchaser hereby agrees to indemnify and hold harmless
Seller, and Seller hereby agrees to indemnify and hold harmless Purchaser,
against any liability, claim, loss, damage or expense incurred by Seller or
Purchaser, respectively, relating to any fees or commissions owed to any broker,
finder or financial advisor as a result of actions taken by Purchaser or Seller,
respectively.
10.17 Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to recover in such action its reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which it may be
entitled.
10.18 Dispute Resolution. (a) Purchaser and Seller shall attempt to
resolve disputes between the Purchaser and the Seller arising out of or in
connection with this Agreement through good faith negotiations as provided
herein. The parties agree that disputes shall be fully discussed by
representatives of Purchaser and the Seller involved in the dispute in an
attempt to achieve a prompt resolution of such dispute. In the event that such
dispute shall not be promptly resolved by the mutual agreement of such
representatives, the dispute shall be submitted to senior management
representatives of Purchaser and Seller. Such senior management representatives
of Purchaser and Seller shall meet and fully discuss such dispute in an attempt
to achieve a prompt resolution of the dispute. If such dispute is not promptly
resolved by the mutual agreement of such senior management representatives of
Purchaser and Seller, Purchaser and Seller shall be free to exercise any of the
remedies available to it (i) pursuant to the terms of this Agreement or (ii)
otherwise at law or in equity, provided, however, that the parties hereby waive
trial by jury in any litigation in any court with respect to, in connection
with, or arising out of this Agreement or the transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
TEXAS INSTRUMENTS INCORPORATED
ADAPTEC, INC.
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Exhibits and Schedules to Asset Purchase Agreement
Exhibits
--------
Exhibit A: Definitions
Exhibit B: Xxxx of Sale
Exhibit C: Assignment of Contracts
Exhibit D: IP Agreement
Exhibit E: Sublease Agreement
Exhibit F: Assumption Agreement
Schedules
---------
Schedule 1 Products
Schedule 2.1(a) Custom Analog Cells
Schedule 2.1(b) Tangible Assets
Schedule 2.1(c) Technology Deliverables
Schedule 2.1(d) Intangible Assets
Schedule 2.1(e) High-End Contracts
Schedule 2.1(g) 2399 Inventory
Schedule 2.2 Certain Excluded Assets
Schedule 5.2(v) Third Party Consents (to be delivered at Closing)
Schedule 6 Disclosure Schedule
Schedule 6.3 Required Consents
Schedule 6.5(c) Licenses
Schedule 6.8 Product Warranties
Schedule 6.10 Custom
