EXHIBIT 2
DATED AUGUST 22, 2003
(1) THE PERSONS NAMED IN SCHEDULE 1
(2) AGERE SYSTEMS INC.
(3) MASSANA LIMITED
AGREEMENT FOR THE SALE AND PURCHASE OF
the entire issued share capital in
MASSANA LIMITED
XXXXXX XXX
Xxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx
Xxxxxx 0
CONTENTS
CLAUSE
1 DEFINITIONS AND INTERPRETATION......................................1
2 SALE AND PURCHASE...................................................9
3 CONSIDERATION.......................................................9
4 CONDITIONS PRECEDENT...............................................14
5 COMPLETION.........................................................15
6 WARRANTIES.........................................................19
7 THE BUYER'S REMEDIES...............................................20
8 LIMITATIONS ON THE SELLERS' LIABILITY..............................21
9 CONFIDENTIAL INFORMATION...........................................21
10 USE OF INTELLECTUAL PROPERTY RIGHTS................................22
11 FURTHER UNDERTAKINGS BY KEY PERSONNEL..............................22
12 EXEMPTION FROM REGISTRATION; OTHER ACTIONS.........................24
13 ASSIGNMENT.........................................................25
14 ANNOUNCEMENTS......................................................25
15 COSTS..............................................................25
16 FURTHER ASSURANCE..................................................25
17 GENERAL............................................................25
19 NOTICES............................................................27
20 GOVERNING LAW AND JURISDICTION.....................................27
21 ENTIRE AGREEMENT...................................................27
22 COUNTERPARTS.......................................................28
SCHEDULE 1 - PART I The Sellers (other than the Excluded Sellers) and the
Shares
SCHEDULE 1 - PART II The Excluded Sellers and the Shares
SCHEDULE 2
Information concerning the Company and each Subsidiary Undertaking
SCHEDULE 3
Items for delivery by the Sellers at Completion
SCHEDULE 4
Warranties
SCHEDULE 4
Warranties
SCHEDULE 5
Properties
SCHEDULE 6
Details of Registered Intellectual Property Rights
SCHEDULE 7
Indebtedness
SCHEDULE 8
Limitations of Liability
SCHEDULE 9
Information Statement
AGREED FORM DOCUMENTS
1. Tax Deed
2. Disclosure Letter
3. Lapsing Agreement
4. Deed of Removal and Appointment in relation to the Trustees of
the Massana Design Limited Retirement and Benefit Plan
5. Escrow Agreement
6. Form S-3 Investor Questionnaire
7. Amendment Agreement to Service Agreements of each of Xxxxxx
Xxxxxx and Xxxxx Xxxxxx
8. Acknowledgement of termination at Service Agreement of Xxxxxxx
X'Xxxxxxxx
9. Deed of termination of employment from Xxxx Xxxxxxxx
THIS AGREEMENT is made on August 22, 2003 BETWEEN:
(1) THE PERSONS NAMED IN PART I AND II OF SCHEDULE 1 (the "Sellers");
(2) AGERE SYSTEMS INC. a company incorporated in the State of
Delaware, USA, having its principal executive office at 0000 Xxxxxxxx
Xxxxxxx XX, Xxxxxxxxx, Xxxxxxxxxxxx, 00000, XXX (the "Buyer"); and
(3) MASSANA LIMITED a company incorporated in Ireland under
registration number 213759 having its registered office at 0 Xxxxxxxx
Xxxxxx, Xxxxxx 0, Xxxxxxx (the "Company");
BACKGROUND:
(A) The Sellers are the legal and beneficial owners of the Shares.
(B) The Sellers have agreed to sell and the Buyer has agreed to
purchase the Shares on the terms and subject to the conditions of this
Agreement.
(C) The Shares represent the entire issued share capital of the
Company.
IT IS AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following expressions shall have the
following meanings namely:
"1963 Act" means the Xxxxxxxxx Xxx, 0000;
"1990 Act" means the Xxxxxxxxx Xxx, 0000;
"1999 Act" means the Companies (Amendment) Act, 1999;
"1999 No. 2 Act" means the Companies (Amendment) (No. 2) Xxx,
0000;
"2001 Act" means the Company Law Enforcement Xxx 0000;
"Accounts" means the audited balance sheet as at the Last
Accounting Date and the audited profit and loss account for the
period ended on the Last Accounting Date of each Group Company
together with the directors' reports and auditors' reports and
includes all notes and other documents annexed thereto in
accordance with any legal requirement or otherwise;
"Agere Average Price per Share" means the average closing price
per Agere Share as quoted on the NYSE for the five (5) trading
days prior to (but not including) the date of this Agreement.
"Agere Incentive Plan" means the Agere Systems Inc. 2001 Long
Term Incentive Plan.
"Agere Shares" means Agere Systems Inc. Class A Common Stock,
par value $0.01 per share.
"Agreement" means this agreement and the schedules hereto;
"Business" means the business carried on by the Group Companies
at the Completion Date including but not limited to the design
and development of and technical research and development in
connection with, semi-conductors and integrated circuits, for
Gigabit Ethernet transceivers;
"Business Day" means a day other than a Saturday or Sunday or
public holiday in Ireland or the United States of America;
"Buyer's Group" means the Buyer and each of its subsidiaries
including following Completion the Group;
"Buyer's Solicitors" means Xxxxxx Xxx xx Xxxxxxxxx Xxxxxx,
Xxxxxxxxx Xxxxxxx, Xxxxxx 0;
"Completion" means completion of the sale and purchase of the
Shares in accordance with this Agreement;
"Completion Date" means the date on which Completion takes
place as determined pursuant to clause 5;
"Conditions" means the conditions specified in clause 4.1;
"Connected Person" and "Connected" means a person who would be
connected with another person for the purposes of Section 26 of
the Companies Act, 1990 if that other person was a director of
a company;
"Confidential Information" means all information not at present
in the public domain used in or otherwise relating to the
business, customers or financial or other affairs of a Group
Company including, without limitation, information relating to:
(a) the marketing of any products or services including,
without limitation, customer names and lists
and any other details of customers, sales targets, sales
statistics, market share statistics, prices, market
research reports and surveys, and advertising or other
promotional materials; and
(b) future projects, business development or planning,
commercial relationships and negotiations;
"Consideration" means the aggregate consideration payable
pursuant to clause 3.1.
"Consultant" means any person who is engaged by any Group
Company pursuant to a contract for services other than any
service provider who is requested to provide services to any
Group Company from time to time on an as required basis;
"Disclosure Letter" means the letter of today's date from the
Warrantors to the Buyer in relation to the Warranties together
with all the documents annexed thereto;
"Dublin Property" means the Company's property at 0-0 Xxxxxxxx
Xxxxxx, Xxxxxx Xxxxxx, Xxxxxx 0 more particularly described at
paragraph 1 of the Schedule 5;
"Employee" means a person who has entered into or works under a
contract of employment with any Group Company and includes
directors, temporary or permanent employees, full-time
employees, part-time employees, agency workers and persona
employed under fixed -term contracts;
"Encumbrance" means any mortgage, charge, pledge, lien, option,
restriction, right of first refusal, right of pre-emption,
conditional or instalment sale agreement, third party right or
interest, any other encumbrance or security interest of any
kind, and any other type of preferential arrangement
(including, without limitation, title transfer and retention
arrangements) having a similar effect;
"Environment" has the meaning given to it in paragraph 21 of
Schedule 4;
"EURIBOR" means:
(a) the percentage rate per annum equal to the offered
quotation which appears on the page of the Telerate
Screen which displays an average rate of the Banking
Federation of the European Union for the euro
(currently page 2480) for one month at 11.00am
(Brussels time) on the quotation date or, if such page
or service ceases to be available, such other page or
other service for the purpose of displaying an average
rate of the Banking Federation of the European Union
agreed by the parties; or
(b) if no quotation for the relevant period is
displayed and the parties have not agreed an alternative
service on which a quotation is displayed, the
arithmetic mean (rounded upwards to four decimal places)
of the rates at which each of the Reference Banks was
offering to prime banks in the European interbank market
deposits in the euro of an equivalent amount for such
period at 11.00am (Brussels time) on the quotation date;
"euro" or "EUR" means the currency unit of the participating
Member States of the European Union as defined in Recital (2)
of Council Regulation 974/98/EC on the introduction of the
euro;
"Excluded Sellers" means those persons named in Part II of
Schedule 2;
"Expert" means, an independent firm of internationally
recognised chartered accountants to be agreed upon by the
Sellers' Representative and the Buyer or, failing agreement, on
the application of the Seller's Representative or the Buyer to
be selected by the President for the time being of the
Institute of Chartered Accountants in Ireland;
"First Release Date" means the date which is the first
anniversary of Completion or if such date is not a Business
Day, the next following Business Day;
"Group" means the Company and each Subsidiary Undertaking for
the time being and the term "Group Company" means any one of
them;
"Indebtedness" means any and all indebtedness of or in respect
of the Company or the Subsidiary Undertakings at Completion,
including bank overdrafts and other debts or amounts owed to
any financial institution or any other party or parties,
amounts due in respect of bills of exchange, letters of credit,
promissory notes, debentures, factoring, credit, deferred
payment and similar arrangements and agreements;
"Information Technology" means all computer systems,
communication systems, software and hardware owned or licensed
by or to any Group Company;
"Intellectual Property" means without limitation (i) all web
pages, web sites, logos and domain names used, useful for or
held for use in connection with the business, (ii) business or
trade names, brand names, including the "Name", trademarks,
service marks, certification marks, assumed names and other
indicators of origin and slogans embodying business or product
goodwill including any variations, derivations and combinations
thereof, get-up, product endorsements or image rights,
character merchandising and the right to publicity, (iii) any
processes, formulae, directions, designs, plans, manuals,
specifications, information, data, trade secrets,
Know-How, semiconductor chip products constituting "mask works"
as defined under European Communities (Protection of
Topographies of Semiconductor Products) (Amendment) Regulations
1993 , et seq. writings and other and proprietary information,
and (iv) all copyrights including copyright in software both in
object code and source code form), computer programs (including
operating software, application software, development
environments, testing suites and other design and testing
tools), and database rights, sui generis database rights, moral
rights, inventions, inventor's certificates, invention
disclosures, Patents and patent applications including
supplementary protection certificates, xxxxx patents,
registered designs, utility models, design rights,
semi-conductor topography rights, registrations, renewals,
extensions, continuations, divisions or reissues, discoveries,
processes, formulae, specifications, information, data, trade
secrets, know-how, and proprietary information and all other
intellectual and industrial property rights (of every kind and
nature including all associated goodwill throughout the world
and however designated whether or not the same are registered
or capable of registration and all applications for, or for the
protection of, any of the foregoing) whether arising by
operation of law, contract, license or otherwise, rights in the
nature of unfair competition rights, rights to xxx for
passing-off, the right to apply for any of them and all other
information necessary for the technical exploration of any of
the same and all registrations;
"Intellectual Property Rights" means all Intellectual Property
that is being or has been created or developed by or on behalf
of any Group Company, or
used or held for use in the operation of the Business as
currently conducted as of the Completion Date, or otherwise
owned by any Group Company, used, useful for or held for use
in connection with or material to the Business, including
without limitation all variations, derivations and combinations;
"Interest Rate" means EURIBOR plus 2% per annum;
"Key Personnel" means Xxxx Xxxxxxxx, Xxxxxx Xxxxxx,
Xxxxx Xxxxxx, Xxxxxxx X'Xxxxxxxx;
"Know-How" means all information and techniques (not publicly
known) owned by a Group Company or used, or required to be
used, by a Group Company in, or in connection with, the
Business, held in any form (including, without limitation,
paper, electronically stored data, magnetic media, film and
microfilm) including, without limitation, that comprised in or
derived from drawings, data, reports, project reports,
formulae, specifications, testing procedures, test results,
component lists, instructions, manuals, brochures, catalogues
and process descriptions, market forecasts, lists and
particulars of customers and suppliers (excluding the
Intellectual Property Rights in existence and further excluding
know-how, processes and/or techniques which form part of the
general and professional knowledge, skill and experience of the
individual employees of the Group Companies and/or the
Warrantors);
"Lapsing Agreement" means the lapsing agreement in the agreed
form to be entered into by each of the Option Holders;
"Last Accounting Date" means 31st December 2002;
"Management Accounts" means the unaudited profit and loss
account and balance sheet and cashflow statement of each Group
Company for the accounting period beginning on the next day
following the Last Accounting Date and ended on 31st July 2003
and attached to the Disclosure Letter;
"Massana Option Holders" means the holders of unexercised
options pursuant to the Massana Option Plans.
"Massana Option Plans" means the 1999 Irish Stock Option Plan
and the 1999 US Stock Option Plan;
"Massana Research" means Massana Research Limited;
"NYSE" means the New York Stock Exchange;
"Name" means "Massana";
"Patents" means the patents and patent applications as more
particularly listed in Schedule 6;
"Planning Acts" means the Local Government (Planning &
Development) Acts 1963 to 1999, the Planning & Development Acts
2000 and 2001, the Building Control Act 1990 and any statutory
modification or re-enactment
thereof for the time being in force and any regulations or
orders for the time being made thereunder;
"Property" means the property or properties short particulars
of which are set out in Schedule 5 and includes an individual
property and a part of an individual property;
"Property Schedule" means Schedule 5;
"Reference Banks" means the principal Dublin offices of Allied
Irish Banks, Bank of Ireland and Ulster Bank or such other
banks agreed between the parties from time to time;
"Release Dates" means the First Release Date, the Second
Release Date and the Third Release Date;
"Relevant Claim" means any Warranty Claim or claim under the
Tax Deed.
"Research Sellers" means Xxxxxx Xxxxx, Xxxx XxXxxxxxxx, Xxxx
Xxxxxxxxx, Xxxxxx XxXxxxx, Xxxx Xxxxxxx, Xxxx Xxxxxx and Xxx
X'Xxxxxxxx;
"Research Shares" means shares in Massana Research Limited;
"Second Release Date" means the date which is the second
anniversary of Completion or if such date is not a Business
Day, the next following Business Day;
"Sellers' Representative" means Xxxxx Xxxxxx, being one of the
Sellers;
"Sellers' Solicitors" means Xxxxxxxx Xxxxxx Xxxxxxxx;
"Shares" means the entire issued share capital of the Company
further particulars of which are set out in Schedule 1 and
which are to be purchased by the Buyer under the terms of this
Agreement;
"Subsidiary Undertaking" means a subsidiary undertaking of the
Company listed in Part 2 of Schedule 2 and "Subsidiary
Undertakings" means all those subsidiary undertakings;
"Tax" and "Taxation" means all forms of taxation, duties,
imposts and levies and includes (without limiting the
generality of the foregoing) corporation tax, corporation
profits tax, advance corporation tax ("ACT"), capital gains
tax, development land tax, rates, water rates, capital transfer
tax, inheritance tax, gift tax, capital acquisitions tax, share
transfer tax, residential property tax, value added tax, income
tax, dividend withholding tax, pay related social insurance,
national insurance contributions, amounts due under the PAYE or
PRSI system, income or other levies, customs and excise duties
any other import or export duties, stamp duty, stamp duty
reserve tax, companies capital duty, tax on turnover or
profits, sales tax, and any other amounts corresponding thereto
and all other taxes, rates, levies, fines, duties or other
fiscal impositions of any kind whatsoever, whether imposed by
government, municipal or local authority or otherwise, or other
sums paid in respect of Tax
or Taxation (including in particular but without derogating
from the generality of the foregoing any interest, fine,
charge, surcharge or penalty) whether arising under the laws of
Ireland or those of any other jurisdiction and whether incurred
as principal, agent, trustee, indemnitor or otherwise, and
regardless of whether such taxes, penalties, charges, levies,
fines, surcharges and interest are directly or primarily
chargeable against or attributable to the Company or any other
person, firm or company and whether or not the Purchaser or the
Company is or may be entitled to claim reimbursement thereof
from any other person or persons;
"Tax Authority" and "Taxation Authority" means the Revenue
Commissioners, and any other local, municipal, governmental,
state, federal or other fiscal authority or body anywhere in
the world;
"Tax Deed" means the deed of tax covenant in the agreed form
between the Sellers, the Buyer and the Group Companies;
"Tax Warranties" means the warranties contained in paragraph 6
of Schedule 4;
"TCA" means Taxes Consolidation Act, 1997;
"Territory" means (i) the island of Ireland; (ii) the United
Kingdom; (iii) Spain; (iv) the United States of America or (v)
anywhere else in world where the Business is conducted;
"Third Release Date" means the date which is the third
anniversary of Completion or if such date is not a Business
Day, the next following Business Day;
"US Securities Exchange Act" means the U.S. Securities and
Exchange Act of 1934, as amended.
"US Securities Act" means the U.S. Securities Act of 1933, as
amended.
"Warranties" means the representations and warranties contained
in Schedule 4 and "Warranty" means any of them;
"Warranty Claim" means a claim for breach of the Warranties
and/or a claim pursuant to Clause 7.1(a) and/or a claim
pursuant to Clause 7.1(c); and
"Warrantors" means:
(a) in respect of the Warranties in Part I of Schedule 4, the
Sellers other than the Excluded Sellers; and
(b) in respect of the Warranties in Part II of Schedule 4, all
of the Sellers.
1.2 In this Agreement:
(a) words and expressions which are defined in the
Companies Acts 1963 to 2001 (the "Companies Acts") shall
have the same meanings as are ascribed to them in the
Companies Acts;
(b) a document in the "agreed form" is a reference to a
document in a form approved and for the purposes of
identification signed by the Seller's Representative and
the Buyer;
(c) a statutory provision includes a reference to the
statutory provision as modified or re-enacted or both
from time to time before the date of this Agreement and
any subordinate legislation made under the statutory
provision before the date of this Agreement;
(d) persons includes a reference to any body corporate,
unincorporated association or partnership;
(e) a person includes a reference to that person's
legal personal representatives and successors;
(f) a clause, Paragraph or Schedule, unless otherwise
specified, is a reference to a clause, paragraph of or
schedule to this Agreement;
(g) reference to writing or similar expressions
includes, unless otherwise specified, transmission by
telecopier or comparable means of communication; and
(h) any reference to a statutory provision shall be
construed as a reference to the laws of Ireland unless
otherwise specified.
1.3 The headings in this Agreement shall not affect the
interpretation of this Agreement.
1.4 Unless the context otherwise requires, words importing the
singular include the plural and vice versa, words importing the
masculine include the feminine, and words importing persons
include corporations.
1.5 A reference in a Warranty in Schedule 4 to a person's
knowledge, information, belief or awareness is deemed to
include knowledge, information, belief or awareness which the
person would have had if the person had made all usual and
reasonable enquiries, in respect of the subject matter of such
Warranty, of:
(a) each of the Key Personnel;
(b) the following employees of the Group Companies,
Xxxxx Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxx de la
Torre, Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxx, Xxxx Xxxxxx,
Xxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxx XxXxxxxxxx or any
other employees of the Group companies who have primary
responsibility for the subject matter of the Warranty;
and
(c) the Group's solicitors, Xxxxxxxx Xxxxxx Xxxxxxxx
and Xxxx Xxxx, the Group's auditors,
PricewaterhouseCoopers and the Group's patent agents,
Xxxx X X'Xxxxx and Associates;
enquiring in each case such person's view of the truth and
accuracy of the matter warranted.
1.6 Where any party to this Agreement is more than one person
then (except in respect of Clauses 2, 5.10, 5.11, 5.12, 9, 10,
11, 12, 14, 16, Schedule 8 or where otherwise expressly
provided in this Agreement and Clause 6 in the manner described
in Clause 6.7 and Clause 7 in the manner described in Clause
7):
(a) the Warranties, agreements and obligations
contained in this Agreement on the part of such parties
shall be construed and take effect as joint and several
Warranties, agreements and obligations and the act or
default of any one of them shall be deemed to be the act
or default of each of them;
(b) reference to that party shall refer to each of
those persons or any of them as the case may be; and
(c) the benefits contained in this Agreement in favour
of such party shall be construed and take effect as
conferred in favour of all such persons collectively and
each of them separately.
2. SALE AND PURCHASE
2.1 The Sellers severally agree to sell as legal and
beneficial owners and the Buyer shall purchase the Shares free
from all Encumbrances together with all rights of any nature
whatsoever now or after the date of this Agreement attaching or
accruing to them.
2.2 Each Seller severally waives and shall procure that there
will be waived before Completion, all rights of pre-emption and
other restrictions on transfer over the Shares conferred on him
or any other person under the articles of association of any
Group Company or otherwise.
3. CONSIDERATION
3.1 Subject to the remaining provisions of this Clause 3, the
aggregate consideration payable by the Buyer to Sellers for the
Shares shall be up to 9,108,125 Agere Shares which shall
consist of the Initial Consideration Shares and the Holdback
Shares (together the "Aggregate Consideration Shares").
3.2 The initial consideration for the Shares shall be
7,340,091 Agere Shares payable on Completion (the "Initial
Consideration Shares"). Such Initial Consideration Shares shall
be apportioned among the Sellers as set out in Section A of
Parts I and II of Schedule 1.
3.3 The additional Consideration for the Shares shall be up to
1,768,034 Agere Shares (the "Holdback Shares"). The Sellers
other than the Excluded Sellers (the "Holdback Sellers") shall
be entitled to receive the Holdback Shares on the Release Dates
as set out in the remaining provisions of this Clause 3.
3.4 No fractional Agere Shares will be issued in connection
with this Agreement, but in lieu thereof, if any Seller would
otherwise be entitled to receive a fraction of an Agere Share,
such Seller will receive from the Buyer, promptly after
Completion such number of Agere Shares as represent the next
whole number of Agere Shares, and in the case of the First
Release Date, the Second Release Date or the Third Release Date
(as the case may be), each Holdback Seller shall be entitled to
receive such number of Agere Shares as determined pursuant to
the Escrow Agreement.
3.5 The Buyer shall on Completion issue the Holdback Shares
and the Holdback Sellers shall place the Holdback Shares with
The Bank of New York as escrow agent (the "Escrow Agent")
pursuant to the instructions set out in the escrow agreement
entered into on Completion among the Sellers' Representative,
the Buyer and The Bank of New York (the "Escrow Agreement").
3.6 On the First Release Date, the Buyer shall authorise the
Escrow Agent to transfer 589,345 Agere Shares to the Holdback
Sellers, less :
(a) the Estimated Shares in respect of any Relevant
Claims notified to the Holdback Sellers prior to the
First Release Date which on the First Release Date have
not been finally resolved, lapsed, or withdrawn; and
(b) any Holdback Shares sold prior to the First Release
Date:
(i) pursuant to Clause 3.10 to meet any Relevant
Claims;
(ii) pursuant to Clause 3.12 to meet the costs of any
Expert determined to be borne by the Holdback
Sellers pursuant to Clause 3.12; and/or
(iii) to meet the costs of the Escrow Agent to be borne
by the Holdback Sellers pursuant to the Escrow
Agreement.
3.7 On the Second Release Date, the Buyer shall authorise the
Escrow Agent to transfer 589,345 Agere Shares to the Holdback
Sellers, less
(a) the Estimated Shares in respect of any Relevant
Claims notified to the Holdback Sellers, after the First
Release Date but before the Second Release Date, which
on the Second Release Date have not been finally
resolved, lapsed or withdrawn; and
(b) any Holdback Shares sold after the First Release
Date but before the Second Release Date
(i) pursuant to Clause 3.10 to meet any Relevant
Claims;
(ii) pursuant to Clause 3.12 to meet the costs of any
Expert determined to be borne by the Holdback
Sellers pursuant to Clause 3.12; and/or
(iii) to meet the costs of the Escrow Agent to be borne
by the Holdback Sellers pursuant to the Escrow
Agreement.
3.8 On the Third Release Date, the Buyer shall authorise the
Escrow Agent to transfer 589,344 Agere Shares to the Holdback
Sellers, less
(a) the Estimated Shares in respect of any Relevant
Claims notified to Holdback Sellers after the Second
Release Date but before the Third Release Date which on
the Third Release Date have not been finally resolved,
lapsed or withdrawn; and
(b) any Holdback Shares sold after the Second Release
Date but before the Third Release Date
(i) pursuant to Clause 3.10 to meet any Relevant
Claims;
(ii) pursuant to Clause 3.12 to meet the costs of any
Expert determined to be borne by the Holdback
Sellers pursuant to Clause 3.13; and/or
(iii) to meet the costs of the Escrow Agent to be borne
by the Holdback Sellers pursuant to the Escrow
Agreement.
plus, any remaining Holdback Shares which have not been
released to the Holdback Sellers prior to the Third Release
Date and are not comprised in the Estimated Shares for the
purposes of Clause 3.8(a) above.
3.9 If any Relevant Claim arises and is notified by the Buyer to
the Holdback Sellers by notice given on or before the First
Release Date, Second Release Date or Third Release Date, as the
case may be, such number of Holdback Shares as equals the
Estimated Shares in respect of each Relevant Claim shall be
retained by the Escrow Agent in accordance with Clauses 3.6 to
3.8 until such Relevant Claim is finally resolved, lapsed,
failed or withdrawn (or deemed lapsed, failed or withdrawn)
whereupon such Estimated Shares shall then be dealt with in
accordance with Clause 3.10 or Clause 3.11.
3.10 If any Estimated Shares are retained by the Escrow Agent in
respect of a Relevant Claim, when that claim is finally
resolved, the Seller's Representative shall within 5 Business
Days of such resolution instruct the Escrow Agent to sell such
number of the Estimated Shares which have been so retained in
respect of the Relevant Claim in question as equals the amount
agreed or determined as payable to the Buyer in respect of the
Relevant Claim. If the value of the Estimated Shares retained
in respect of such Relevant Claim is less than the amount so
agreed or determined as payable to the Buyer in respect of the
Relevant Claim, the Buyer shall as soon as possible, following
receipt by the Buyers of the proceeds of the sale of the
Estimated Shares, notify the Seller's Representative and the
Escrow Agent of the amount which remains undischarged in
respect of such Relevant Claim (the "Shortfall"). The Sellers'
Representative shall within 5 Business Days of being notified
by the Buyer of the Shortfall, instruct the Escrow Agent to
sell such number of Holdback Shares as are necessary to satisfy
the amount of the Shortfall or if there are insufficient
Holdback Shares available for sale to satisfy the amount
of the Shortfall, all of the Holdback Shares available to be
sold to satisfy Relevant Claims. The proceeds of any sale of
Estimated Shares and/or Holdback Shares by the Escrow Agent
pursuant to this Clause 3.10 shall be paid forthwith by the
Escrow Agent to the Buyer. Any payments received by the Buyer
from the Escrow Agent from the sale of such Estimated Shares
and/or Holdback Shares in respect of a Relevant Claim shall be
a complete discharge of the amounts agreed or determined as
payable to the Buyer in respect of that Relevant Claim:
3.11 If any Estimate Shares are retained by the Escrow Agent in
respect of Relevant Claims and the Relevant Claim is either
withdrawn or lapses or fails (or is deemed to have been
withdrawn or lapsed or failed) or is finally resolved or if
following the discharge of a Relevant Claim pursuant to Clause
3.10, there remains unsold any amount of the Estimated Shares
in respect of such Relevant Claim, the Sellers' Representative
shall instruct the Escrow Agent to transfer to the Holdback
Sellers:
(a) if the Relevant Claim was notified prior to the First
Release Date, and is withdrawn or lapsed or failed or
finally resolved following the First Release Date, such
number of the Estimated Shares which have not been sold
pursuant to Clause 3.10 as is equal to 589,345 Agere
Shares minus the number of Holdback Shares transferred
to the Holdback Sellers on the First Release Date and
minus such Estimated Shares sold pursuant to Clause 3.10
in respect of such Relevant Claim, or if the number of
such unsold Estimated Shares is less, such lesser
number;
(b) if the Relevant Claim was notified prior to the Second
Release Date, and is withdrawn failed or lapsed or
failed or finally resolved following the Second Release
Date, such number of the Estimated Shares which have not
been sold pursuant to Clause 3.10, as is equal to
589,345 Agere Shares minus the number of Holdback Shares
transferred to the Holdback Sellers on the Second
Release Date and minus the number of Estimated Shares
sold in respect of such Relevant Claim pursuant to
Clause 3.10, or if the number of such unsold Estimated
Shares is less, such lesser number; and
(c) if the Relevant Claim was notified prior to the
Third Release Date, and after the Third Release Date is
either withdrawn, failed or lapsed or finally resolved
following the Third Release Date, such number of the
Estimated Shares which have not been sold pursuant to
Clause 3.10 in respect of such Relevant Claim shall be
transferred to the Holdback Sellers.
3.12 Within 21 Business Days of notifying the Holdback Sellers of a
Relevant Claim, the Buyer shall notify the Sellers'
Representative of the amount, in its reasonable opinion, of the
pre-estimate of such Relevant Claim (the "Pre-Estimate"). Such
notification shall include a schedule supporting the Buyer's
opinion of the Pre-Estimate together with relevant supporting
documentation. The Sellers' Representative shall notify the
Buyer within 21 Business Days of receiving each such notice
from the Buyer if it disagrees with the Buyer's Pre-Estimate of
the Relevant Claim in question and in so doing, shall set out
the
amount, in its reasonable opinion, of the Pre-Estimate of
such Relevant Claim. Such notification shall include a schedule
supporting the Sellers' Representative's opinion of the
Pre-Estimate together with relevant supporting documentation.
The Buyer and the Sellers' Representative shall seek to agree
the relevant Pre-Estimate and, failing agreement within 21
Business Days of the date of the notice given by the Sellers'
Representative under this Clause 3.12 that it disagrees with
the Buyer's notification of the Pre-Estimate, either the
Seller's Representative or the Buyer shall be entitled to refer
the matter to an Expert and shall request that the Expert
determines the Pre-Estimate of such Relevant Claim within 21
Business Days of receiving the reference. The Expert shall be
instructed by the appointing party to report his determination
in respect of the Pre-Estimate by notice in writing to the
Seller's Representative and the Buyer. In determining the
Pre-Estimate, the Expert shall act as an expert and not as an
arbitrator and the Parties agree that the Expert's decision in
relation to the Pre-Estimate for the purposes of Clause 3 shall
be final and binding. In determining the costs of any reference
to him pursuant to this Clause 3.12, the Expert shall apply the
general principle that:
(a) if the Expert determines that the Pre-Estimate is
equal to or greater than the amount notified by the
Buyer, the costs shall be borne by the Holdback Sellers;
(b) if the Expert determines that the Pre-Estimate is
equal to or less than the amount notified by the
Sellers' Representative, the costs shall be borne by the
Buyers; and
(c) if the Expert determines that the Pre-Estimate is
an amount between the amount notified by the Buyer and
the amount notified by the Sellers' Representative, the
costs shall be apportioned equally between the Buyer and
the Holdback Sellers.
The Expert shall notify in writing each of the Sellers'
Representative and the Buyer of the amount, if any, of his
costs to be borne by the Holdback Sellers and the Buyer. Within
5 Business Days of any such notification from the Expert as to
his costs which determines that some or all of his costs are to
be borne by the Holdback Sellers, the Sellers' Representative
shall instruct the Escrow Agent to sell such number of Holdback
Shares as equals the amount of such costs to be borne by the
Holdback Sellers and to pay such amounts to the Expert.
3.13 For the purposes of this Clause 3, the Estimated Shares in
respect of a Relevant Claim shall be such number of Holdback
Shares as equals A divided by B where:
(a) A is either the Pre-Estimate of the Relevant Claim
as notified by the Buyer pursuant to clause 3.12 or if
the Sellers' Representative gives a notification that it
disagrees with the Pre-Estimate, the amount so agreed,
or in the event of failure to reach agreement, the
amount so determined by the Expert pursuant to clause
3.12; and
(b) B is the average closing price per Agere Share as
quoted on the NYSE five trading days prior to
notification (excluding the date of notification) by the
Buyer to the Sellers' Representative of the Relevant
Claim.
3.14 The giving of notice or the failure to give notice pursuant to
clause 3.12 and 3.13 shall not in any way be construed as
regards the Holdback Sellers or the Buyer as an acceptance or
denial of any liability in respect of the Relevant Claim and
shall be entirely without prejudice to any subsequent
litigation arising out of such Relevant Claim.
3.15 Any transfers of Holdback Shares to the Holdback Sellers by the
Escrow Agent shall be distributed to the Holdback Sellers in
accordance with the proportions set out in Section B of Part I
of Schedule 1.
3.16 For all the purposes of this Clause 3, "finally resolved" shall
mean (i) agreed in writing between the Buyer and the Holdback
Sellers; or (ii) finally determined by a court of competent
jurisdiction and either there is no right of appeal or the time
for appeal has expired.
3.17 For all purposes of this Clause 3 and for measuring the value
of the Holdback Shares on the sale of any Holdback Shares by
the Escrow Agent withheld by the Escrow Agent, such value shall
be measured with reference to the net proceeds obtained by the
Escrow Agent for any such sale.
3.18 A Relevant Claim shall be notified for the purposes of this
Clause 3 if in the case of a Warranty Claim, it is made in
accordance with Schedule 8 and in the case of a claim under the
Tax Deed, it is made in accordance with the Tax Deed.
4. CONDITIONS PRECEDENT
4.1 Completion is subject to and conditional upon the
following conditions being satisfied, or waived by the Buyer,
on or before the date set for Completion in accordance with
clause 5.
(a) Satisfactory due diligence;
(b) Such third party consents, approvals,
authorisations or releases (if any) as are necessary for
the completion of the sale and transfer of the Shares
being obtained by the Sellers and the Buyer as the case
may be;
(c) The Statutory Books of the Group Companies being
written up to the satisfaction of the Buyer;
(d) The consent of Enterprise Ireland under grant
agreements in place with the Company, to the proposed
transaction and confirmation in a form satisfactory to
the Buyer that there has been no breaches of the terms
of these grants;
(e) All outstanding loan stock issued by any Group
Company being converted into shares in the Company;
(f) All warrants to subscribe for shares in any Group
Company having been exercised or waived;
(g) Each of the Option Holders executing a Lapsing
Agreement in respect of their unexercised options in the
Massana Option Plans;
(h) A Deed of Removal and Appointment in relation to
such of the Trustees of the Massana Design Limited
Retirement and Death Benefits Plan as is required by the
Buyer;
(i) A letter of confirmation from each of the members
of the Massana Design Limited Retirement and Death
Benefits Plan that the current employer contribution
rate is 6.25%;
(j) Official confirmation of the filing a certificate
of correction of with the US Patent Office in respect of
the error in the assignee name in US Patent 6334179 from
`Massana Research Limited' to `Massana Research Limited'
and such change to be noted on the official assignment
record and paying a correction fee in respect thereof;
(k) Official confirmation of payment of the renewal fee
and applicable surcharge in respect of Year 8 of Patent
GB 2309346 which was due on 1 August 2003;
(l) Duly executed letters of resignation or termination
agreements on terms satisfactory to the Buyer from each
of Xxxx Xxxxxxxx and Xxxxxxx X'Xxxxxxxx;
(m) Duly executed Amendment Agreement in relation to
the amendment of Xxxxxx Xxxxxx'x and Xxxxx Xxxxxx'x
service agreements to provide for termination on notice;
(n) Any shareholders in the Subsidiary Undertakings
apart from the Company are to transfer their shares to
the Company. All directors of the Company and the
Subsidiary Undertakings to resign in accordance with
clause 5.4;
(o) Letter of consent from Banco Santander in relation
to the Spanish equipment leases on terms satisfactory to
the Buyer;
4.2 If at any time the Sellers or the Buyer become aware of a
fact or circumstance that might prevent a condition set out in
clause 4.1 being satisfied, it shall immediately inform the
other party.
5. COMPLETION
5.1 Completion shall take place at the offices of the Buyer's
Solicitors on the date of this Agreement.
5.2 At Completion, the Sellers shall deliver or procure to be
delivered to the Buyer those items set out in Schedule 3.
5.3 The Sellers shall procure that the directors of the
Company shall convene and at Completion hold a meeting of the
board of directors of the Company and the Group Companies
(where necessary) at which the directors shall, inter alia,
(a) vote in favour of the registration of the Buyer and
its nominee(s) as member(s) of the Company in respect of
the Shares (subject to the production of duly stamped
transfers);
(b) revoke all existing mandates for the operation of
bank accounts and issue new mandates giving authority to
persons nominated by the Buyer;
(c) change the registered office of the Company to such
place as is nominated by the Buyer;
(d) change the financial year end of the Company to a
year ending on 30th September of each year;
(e) appoint such persons as the Buyer may nominate as
directors, secretary and auditors of the Company with
immediate effect and approve the resignations of such
persons as directors, secretary and auditors as may be
required by the Buyer;
(f) approve and authorise the execution by the Company
of the Tax Deed.
5.4 The Company and the Sellers shall procure that immediately
following the board meeting referred to in clause 5.3, meetings
of the boards of directors of each Subsidiary Undertaking are
convened to inter alia,
(a) approve the transfer of any shares in Subsidiary
Undertakings not held by the Company, to the Company or
a nominee of the Buyer; and
(b) transact (mutatis mutandis) such of the matters
referred to in clause 5.3 as the Buyer may require.
5.5 Each Seller shall procure at Completion:
(a) the discharge of all monies owing to each Group
Company (whether then due for payment or not) by such
Seller or director of any Group Company or by any of
them or any Connected Person;
(b) the release of any and all guarantees or
indemnities or security given by any Group Company for
or on behalf of such Seller or for or on behalf of any
director of any Group Company or for or on behalf of any
of them or any Connected Person.
5.6 Each Seller shall:
(a) assign and/or deliver to a Group Company any asset
whatever (including bank balances, agencies or
appointments) in his name or in the name of a company or
companies controlled by him which asset is
related to the Business of any Group Company carried on
at Completion;
(b) irrevocably waive any claims against any Group
Company its agent, or employees which he may have
outstanding at Completion.
5.7 At Completion the Buyer shall:
(a) allot the Initial Consideration Shares to the
Sellers in the proportions set out in Schedule 1 and
shall provide that the Initial Consideration Shares are
issued in the name of such of the Sellers as soon as
practicable after allotment, the Aggregate Consideration
Shares having been authorised for listing on the New
York Stock Exchange, subject to official notice of
issuance;
(b) deliver to the Sellers' Solicitors the Tax Deed
duly executed by the Buyer.
5.8 At Completion, each of the Sellers (other than the
Excluded Sellers) thereto shall enter into the Tax Deed.
5.9 The Buyer shall not be obliged to complete this Agreement unless:
(a) the Sellers comply fully with all their obligations
under clauses 4 and 5; and
(b) the purchase of all of the Shares is completed in
accordance with the provisions of this Agreement on the
Completion Date.
5.10 Each of the Excluded Sellers and Powerscourt Nominees Limited
hereby severally undertake and covenant to the Buyer in
relation to the Shares they are selling hereunder that they :
(a) will exercise all rights attaching to their shares or
exercisable by them in their capacity as members of the
Company on the instructions of the Buyer and without
prejudice to the generality of the foregoing this shall
include the exercise of rights of attending at, voting
at, consenting to short notice of; or requisitioning or
joining in the requisition of any general, class or
other meeting and the execution and delivery of all
deeds and instruments in connection with their shares;
(b) undertake and agree not, save upon the written request
of the Buyer, to exercise any rights attaching to their
shares exercisable by them in their capacity as members
of the Company or to appoint any other person to
exercise such rights;
(c) undertake and agree, save as may be provided to the
contrary in the Agreement, that any monies, securities
or other benefits, or notices, documents or other
communications which may be received after the date
hereof by any of the Excluded Sellers or Powerscourt
Nominees Limited (including any officer, employee,
banker or other agent thereof) from the Company or any
third party in respect of their shares
or in any of the Excluded Sellers' or Powerscourt Nominees
Limited capacity as a member of the Company shall be
received by the Excluded Sellers or Powerscourt Nominees
Limited (including as aforesaid) and held in trust for
the Buyer and, without prejudice to the generality of
the obligations imposed by the foregoing, promptly to
procure the forwarding to the Buyer all such benefits or
communications and to account to the Buyer for all
benefits arising therefrom; and
(d) declare that such covenants in Clauses 5.10(a), 5.10(b)
and 5.10(c) above shall cease and determine for each of
the Excluded Sellers and Powerscourt Nominees Limited
upon their ceasing to be members of the Company by
registration in the register of members of the Company
of the Buyer or its nominee as owner of their shares,
but without prejudice to any power exercised prior to
such date and shall not, save as may be required by law,
terminate on the commencement of any winding up of any
of the Excluded Sellers or Powerscourt Nominees Limited
or appointment of any administrator or receiver and
shall, save as aforesaid, in connection with the shares
be accordingly binding upon any liquidator,
administrator or receiver.
5.11 Each of the Research Sellers hereby severally undertake and
covenant to the Company in relation to the Research Shares they
have agreed to sell to the Company as a condition precedent to
this Agreement that they :
(a) will exercise all rights attaching to their shares or
exercisable by them in their capacity as members of
Massana Research on the instructions of the Company and
without prejudice to the generality of the foregoing
this shall include the exercise of rights of attending
at, voting at, consenting to short notice of; or
requisitioning or joining in the requisition of any
general, class or other meeting and the execution and
delivery of all deeds and instruments in connection with
their shares;
(b) undertake and agree not, save upon the written request
of the Company, to exercise any rights attaching to
their Research Shares exercisable by them in their
capacity as members of Massana Research or to appoint
any other person to exercise such rights;
(c) undertake and agree, save as may be provided to the
contrary in the Agreement, that any monies, securities
or other benefits, or notices, documents or other
communications which may be received after the date
hereof by any of the Research Sellers (including any
banker or other agent thereof) from Massana Research or
any third party in respect of their shares or in any of
the Research Sellers' capacity as a member of Massana
Research shall be received by Massana Research
(including as aforesaid) and held in trust for the
Company and, without prejudice to the generality of the
obligations imposed by the foregoing, promptly to
procure the forwarding to the Company all such benefits
or communications and to account to the Company for all
benefits arising therefrom; and
(d) declare that such covenants in Clauses 5.11(a), 5.11(b),
and 5.11(c) above shall cease and determine for each of
the Research Sellers upon their ceasing to be members of
Massana Research by registration in the register of
members of Massana Research of the Company or its
nominee as owner of their shares or through a redemption
of the Research Shares by the Company, but without
prejudice to any power exercised prior to such date and
shall not, save as may be required by law, terminate on
the commencement of any winding up of any of the
Research Sellers or appointment of any administrator or
receiver and shall, save as aforesaid, in connection
with the shares be accordingly binding upon any
liquidator, administrator or receiver.
5.12 Each of the Sellers and the Buyer shall, within five Business
Days of Completion, give to each Group Company such notice as
is required by section 53 of the Companies Act, 1990.
6. WARRANTIES
6.1 The Warrantors hereby represent and warrant to and
undertake with the Buyer in relation to each Group Company,
that each of the Warranties set out in Schedule 4 is, true,
accurate and not misleading at the date of this Agreement.
6.2 The Warrantors acknowledge that the Buyer is entering into
this Agreement in reliance (inter alia) upon each of the
Warranties.
6.3 The Warranties (other than Warranty 5) are qualified by
the facts and circumstances fairly, accurately and specifically
disclosed in the Disclosure Letter. Claims may be made by the
Buyer under the Warranties whether or not the Buyer knew or
could have discovered (whether by any investigation made by it
or on its behalf into the affairs of each Group Company or
otherwise) prior to signing this Agreement that any of the
Warranties have not been complied with or carried out or are
otherwise untrue or misleading. The Warrantors may not invoke
the Buyer's knowledge (actual, constructive or imported) of a
fact or circumstance which might make a Warranty untrue,
inaccurate, incomplete or misleading as a defence to a claim
for breach of clause 6.1.
6.4 The Warrantors agree with the Buyer that the Warrantors
shall waive and not enforce any right which the Warrantors may
have in respect of any misrepresentation, inaccuracy, neglect
or omission in or from any information or advice supplied or
given by any Group Company or any officer, employee or adviser
of or to any Group Company for the purpose of assisting the
Warrantors to give any of the Warranties or to prepare the
Disclosure Letter.
6.5 Each of the Warranties shall be construed separately and
independently and (except where the Agreement expressly
provides otherwise) shall not be limited or restricted by
reference to or inference from a provision of this Agreement or
another Warranty.
6.6 The rights and remedies of the Buyer in respect of a
breach of any of the Warranties shall not be affected by the
sale and purchase of the Shares.
6.7 The liability of the Warrantors for breach of any Warranty
shall be joint and several with the exception of
(a) a breach of the Warranties contained in Part II of
Schedule 4 in which case the liability of the Warrantors
shall be several; or
(b) a claim in respect of a breach of any Warranty
notified to the Warrantors after the third anniversary
of Completion, in which case the liability of the
Warrantors shall be several.
7. THE BUYER'S REMEDIES
7.1 Subject to clause 7.2, the Sellers shall indemnify and
keep indemnified the Buyer (for itself and as trustee for the
benefit of each Group Company) from and against any and all
losses, costs, damages, liabilities, obligations, impositions,
assessments, fines, penalties, deficiencies and expenses
arising from claims, demands, actions, causes of action, and
proceedings (including any liability to Taxation) including,
without limitation, reasonable legal and other professional
costs and fees arising out of :
(a) Any breach of Clause 6.1;
(b) Any breach or default by the Sellers of any of the
covenants or agreements given or made by any of them in
this Agreement; and
(c) Any breach or default by the Sellers' Representatives
of his obligations pursuant to Clause 3.
7.2 In relation to Clause 7.1, the following shall apply:
(a) in the case of a breach of Clause 6.1 arising from
a breach of the Warranties in Part I of Schedule 4, the
Excluded Sellers shall have no liability;
(b) in the case of a breach of Clause 6.1 arising from
a breach of the Warranties in Part II of Schedule 4, the
Sellers shall be severally liable;
(c) in the case of a breach of Clause 6.1 which is
notified to the Warrantors in accordance with Schedule 8
after the third anniversary of Completion, the Sellers
shall be severally liable;
(d) in the case of a breach or default of any of the
covenants or agreements given or made by the Sellers in
this Agreement (other than a breach of Clause 6.1), the
Sellers shall be severally liable;
(e) in the case of a claim in respect of Clause 7.1(c),
the Sellers (other than the Excluded Sellers) shall be
jointly and severally liable.
7.3 Without prejudice to any other right or remedy of the
Buyer under this Agreement or otherwise all sums payable by the
Warrantors, under this Agreement shall bear interest at the
Interest Rate from the date of claim until the date of payment
(before as well as after judgment).
7.4 The Warrantors shall pay to the Buyer any amount required
to be paid pursuant to Clause 7.1(b) as cleared funds, or at
the option of the Buyer, discharge directly the underlying
liability, within 30 days of receipt of notice of the subject
matter or, if later, on the day before the due date for
settlement or discharge of the liability the subject matter of
the claim.
7.5 To the extent that the Buyer makes a claim under Clauses
7.1(a) and such claim comprises a Non Escrow Claim (as defined
in paragraph 1(a)(i)(B) of Schedule 8), the Warrantors shall
pay to the Buyer any amount required to be paid pursuant to
Clause 7 as cleared funds or, at the option of the Buyer,
discharge directly the underlying liability, within 30 days of
receipt of notice of the subject matter or, if later, on the
day before the due date for settlement or discharge of the
liability the subject matter of the claim.
7.6 To the extent that the Buyer makes a Warranty Claim and
such Warranty Claim comprises an Escrow Claim (as defined in
paragraph 1(a)(i)(A) of Schedule 8) the Warrantors' liability
shall be discharged in accordance with Clause 3.
8. LIMITATIONS ON THE SELLERS' LIABILITY
8.1 The liability of the Warrantors shall be limited in
accordance with the following provisions of this Clause 8 and
Schedule 8.
8.2 No liability shall attach to the Warrantors for a Warranty
Claim (other than in respect of paragraph 5 of the Warranties)
unless the aggregate amount of all liabilities of the
Warrantors in respect of Relevant Claims shall have exceeded
the total sum of EUR 250,000 (the "De Minimus") whereupon the
Warrantors shall be liable for the entire amount of such
liabilities and not merely the excess.
8.3 The Buyer shall be entitled to make Warranty Claims in
respect of paragraph 5 of the Warranties notwithstanding that
any such Warranty Claims do not individually or collectively
exceed the De Minimus.
8.4 Any payment by the Warrantors to the Buyer pursuant to the
Relevant Claims shall be deemed to be a reduction of the
Consideration payable hereunder.
9. CONFIDENTIAL INFORMATION
9.1 Each Seller shall not and shall procure that no body
corporate controlled by it shall, at any time after the date of
this Agreement, make use of or disclose for their own benefit
or for or on behalf of or to any other person any Confidential
Information or Know How which may be within or may come to
their knowledge.
9.2 Each Seller shall not and shall procure that any body
corporate controlled by it, will use all reasonable endeavours
to prevent the disclosure of any Confidential Information.
9.3 Clause 9.1 shall not apply to:
(a) disclosure of any Confidential Information to
officers or employees of the Buyer or any Group Company
whose province it is to know about the Confidential
Information;
(b) disclosure of any Confidential Information which is
already in the public domain (save where such
Confidential Information is in the public domain as a
result of a breach of any confidentiality obligations);
(c) disclosure of any Confidential Information required
by law or by a recognised stock exchange or in pursuance
of any Seller's obligations as general partner or
manager of any investment fund or partnership to
disclose Confidential Information to that investment
fund or partnership;
(d) disclosure of any Confidential Information to any
professional adviser for the purpose of advising the
Sellers and on terms that this clause 9 shall apply to
any use or disclosure by the professional adviser;
10. USE OF INTELLECTUAL PROPERTY RIGHTS
Each Seller shall not, and shall procure that no body corporate
controlled by it will, either alone or jointly with, through or as
manager, adviser, consultant or agent for any person, directly or
indirectly use in connection with any business which competes,
directly or indirectly, with any part or all of the Business or a
Group Company, any of the Intellectual Property Rights or Know How in
particular, a name including the words Massana or use anything which
is intended or is likely to be confused with the Name.
11. FURTHER UNDERTAKINGS BY KEY PERSONNEL
11.1 The Key Personnel severally undertake that they shall not and
shall procure that no body corporate controlled by them will,
either alone or jointly with, through or as manager, adviser,
consultant or agent for any person, directly or indirectly:
(a) for a period of two years after the Completion Date
carry on, or be engaged, concerned or interested in, or
assist, any business competing, directly or indirectly,
with the Buyer or any member of the Buyer's Group or any
part or all of the Group Companies, which in either
case, is carrying on the Business in the Territory.
(b) for a period of two years after the Completion Date in
competition with the Buyer or any member of the Buyer's
Group or any part or all of the Group Companies, which
in either case, is carrying on or being engaged in the
Business either seek to procure orders from, or do
business with, or procure directly or indirectly any
other person to seek to procure orders from or do
business with, any person who has been a customer of any
Group Company in any part or all of the Business at any
time during the period of one year before the date of
this Agreement;
(c) for a period of two years after the Completion Date
engage, employ, solicit, or contact with a view to the
engagement or employment by any person, any employee,
officer or manager of any Group Company;
(d) do or say anything which is harmful to the reputation of
any Group Company;
(e) for a period of two years after the Completion Date seek
to contract with or engage in competition with the Buyer
or any member of the Buyers Group or any part or all of
the Group Companies, which in either case, is carrying
on or being engaged in the Business, in such a way as to
adversely affect the business of any Group Company as
carried on at the date of this Agreement, any person who
has been contracted with or engaged to manufacture,
assemble, supply or deliver products, goods, materials
or services to any part or all of the Group Companies
carrying on or being engaged in with the Business at any
time during the period of one year before the date of
this Agreement;
with the intent that each of the foregoing provisions of this
clause 11.1 shall constitute an entirely separate and
independent restriction on the Sellers.
11.2 The undertakings in clause 11.1 shall
(a) not prevent any Key Personnel after he ceases to be
employed by any of the Group Companies from becoming an
employee or contractor of any company or business in
circumstances where his duties or obligations do not
compete with the Business;
(b) terminate upon the Group Companies (or any of them)
ceasing to carry on or be engaged in the Business save
where such cessation is as a result of the Buyer or any
member of the Buyer's Group being engaged in the
Business; and
(c) not prevent any Key Personnel from being engaged in,
connected with, interested in, or assisting with any
business involved in semi-conductor and integrated
circuit design, manufacture, research or development so
long as any such business is not in competition with the
Business, it being accepted that for the purposes of
this Clause 11.2.(c) the term "Business" is not intended
to nor shall it be construed as being or including the
generic business of semi-conductor and integrated
circuit design, manufacture, research or development.
11.3 It is agreed between the parties that, whilst the restrictions
set out in clause 11.1 are considered fair and reasonable, if
it should be found that any of the restrictions be void or
unenforceable as going beyond what is fair and reasonable in
all the circumstances and if by deleting part of the wording or
substituting a shorter period of time or different geographical
limit or a more restricted range of activities for any of the
periods of time, geographical limits or ranges of activities
set out in clause 11.1 it would not be void or unenforceable
then there shall be substituted such next less extensive period
or limit or activity or such deletions shall be made as shall
render clause 11.1 valid and enforceable.
12. EXEMPTION FROM REGISTRATION; OTHER ACTIONS
12.1 The Agere Shares to be issued in connection with this Agreement
will be issued in a transaction exempt from registration under
the US Securities Act by reason of Section 4(2) thereof. The
Buyer shall use its reasonable efforts to prepare, file and
cause to become effective, as promptly as practicable after the
Buyer shall have received all relevant information to be
provided by the Company and the Sellers in connection with such
filing, but in any event not later than 75 days following the
receipt of all such information, on Form S-3 or such other form
as may be appropriate to be filed with the US Securities and
Exchange Commission by the Buyer under the US Securities Act
(together with any amendments or supplements thereto, whether
prior to or after the effective date thereof, the "Registration
Statement") covering the public resale of such shares of Agere
Shares to be issued in connection with the Agreement, and the
Buyer shall use its reasonable efforts to keep the registration
statement effective until the first anniversary of the
Completion Date. The Buyer will notify the Sellers'
Representative of the Registration Statement becoming effective
within five Business Days of such event. Any such registration
shall be subject to the customary terms and conditions used in
connection with resale prospectuses; provided that if the Buyer
determines that sales under the Registration Statement would
require disclosure of non-public information material to the
Buyer at a time when the Buyer desires not to disclose such
information, the Buyer may, upon notice to the Sellers'
Representative, suspend on one or more occasions and for a
period not to exceed 30 consecutive days at any one time and
120 days in the aggregate the right of the Sellers to effect
resales, pursuant to such Registration Statement, of such of
the Agere Shares issued in connection with the Agreement, and
the Buyer agrees to promptly notify the Sellers' Representative
prior to the expiration of such period of the date on which the
Sellers may again effect resales under the Registration
Statement. All fees, disbursements and out-of-pocket expenses
and costs incurred by the Buyer in connection with the
preparation and filing of the Registration Statement and in
complying with applicable securities and Blue Sky laws
(including, without limitation, all attorneys' fees of the
Company) shall be borne by the Buyer. The Sellers shall bear
the cost of underwriting and/or brokerage discounts, fees and
commissions, if any, applicable to the registrable securities
being registered and the fees and expenses of its counsel.
12.2 Each party hereto agrees, subject to applicable laws relating
to the exchange of information, promptly to furnish the other
parties hereto with copies of written communications received
by such party, or any of its Subsidiaries, affiliates or
associates (as such terms are defined in Rule 12b-2 under the
US Securities Exchange Act), from, or delivered by any of the
foregoing to, any governmental or regulatory authority,
domestic or foreign, relating to or in respect of the
transactions contemplated under this Agreement.
12.3 Each Seller agrees not to engage in any hedging transactions
with regard to the Aggregate Consideration Shares unless in
compliance with the US Securities Act.
13. ASSIGNMENT
No party may assign or transfer or purport to assign or transfer any
of its rights or obligations under this Agreement to any person.
14. ANNOUNCEMENTS
The Buyer shall prepare a release announcing the transaction
contemplated hereby, and except for such press release, none of the
Sellers nor the Buyer shall, without the approval of the other, make
any press release or other public announcement concerning the
existence of this Agreement or the terms of the transactions
contemplated by this Agreement, except as and to the extent that any
such party shall be so obligated by law, in which case the other party
shall be advised and the parties shall use their reasonable commercial
efforts to cause a mutually agreeable release or announcement to be
issued; provided, however, that the foregoing shall not apply to
communications or disclosures necessary to comply with accounting
rules, stock exchange or market rules or United States (or other
relevant jurisdiction) federal securities or labour relations law
disclosure obligations.
15. COSTS
Each party shall pay its own costs of and incidental to the
negotiation, preparation, execution and implementation by it of this
Agreement and of all other documents referred to in it including,
without limitation, the fees of its legal and accounting advisers and
investment bankers.
16. FURTHER ASSURANCE
16.1 At any time after Completion each of the Sellers shall
severally (at their sole expense) do and execute, or procure to
be done and executed, all necessary acts, deeds, documents and
things as may be reasonably requested of each of them by the
Buyer to give effect to this Agreement.
16.2 Upon the Buyer's reasonable request from time to time following
Completion, each of the Sellers shall:
(a) provide, or procure to be provided, to the Buyer
all information relating to the business and affairs of
any Group Company and which is in his possession or
under his control; and
(b) give, or procure to be given, to the Buyer, its
directors and agents access to any documents containing
any of the information referred to in clause 16.2(a) and
the Buyer may copy any of those documents.
17. GENERAL
17.1 No variation of this Agreement shall be valid unless it is in
writing and signed by or on behalf of each of the parties.
17.2 The failure to exercise or delay in exercising a right or
remedy under this Agreement shall not constitute a waiver of
the right or remedy or a waiver of any other rights or remedies
and no single or partial exercise of any right or
remedy under this Agreement shall prevent any further exercise
of the right or remedy or the exercise of any other right or
remedy.
17.3 The rights and remedies of the Buyer contained in this
Agreement are cumulative and not exclusive of any rights or
remedies provided by law.
17.4 The invalidity, illegality or unenforceability of any provision
of this Agreement shall not affect or impair the continuation
in force of the remainder of this Agreement.
17.5 This Agreement shall enure to the benefit of and be binding
upon the successors in title to the parties hereto.
18. THE SELLERS' REPRESENTATIVE
18.1 The Sellers' Representative is hereby duly authorized by the
Sellers to be their representative and, may bind the Sellers in
respect of those matters in this Agreement delegated to the
Seller's Representative.
18.2 The Sellers' Representative or any successor Sellers'
Representative shall have the power to substitute any Seller
(with such Seller's consent) as a successor Sellers'
Representative hereunder. In the event that the Sellers'
Representative is unable to perform his duties hereunder and
unable to substitute a successor Sellers' Representative by
reason of the death or incapacity of the Sellers'
Representative and no substitute Sellers' Representative has
previously been appointed, a substitute Sellers' Representative
shall be appointed by the Sellers holding a majority of the
Shares as of the date of this Agreement.
18.3 The Sellers' Representative shall act for the Sellers on all
matters delegated to the Sellers' Representative in this
Agreement in a manner the Sellers' Representative believes (in
his absolute discretion) to be in the best interests of the
Sellers and consistent with his obligations under this
Agreement, but the Sellers' Representative shall not be
responsible to the Sellers for any loss or damages the Sellers
may suffer by reason of the performance by the Sellers'
Representative of his duties under the Agreement, other than
loss or damage arising from wilful violation of the law in the
performance of his duties under this Agreement, and the Sellers
(other than the Excluded Sellers) shall indemnify and keep the
indemnity the Sellers' Representative accordingly.
18.4 All actions, decisions and instructions of the Sellers'
Representative taken, made or given pursuant to the authority
granted to the Sellers' Representative hereunder shall be
conclusive and binding upon all of the Sellers and no Seller
shall have the right to object, dissent, protest or otherwise
contest the same. The parties agree that the Buyer shall be
entitled to rely without enquiry on any action, decision or
instruction of the Sellers' Representative made pursuant to
this Agreement as being a valid action, decision or instruction
of the Sellers' Representative.
19. NOTICES
19.1 Any notice or other communication under or in connection with
this Agreement shall be in writing and shall be delivered
personally or by
registered post, to the party due to receive the notice or
communication at his address set out in this Agreement or such
other address as any party may specify by notice in writing to
the others. Any such notice served on the Sellers' Solicitors,
or such other firm of solicitors to be located in Ireland
notified by the Sellers' Representative to the Buyer, shall be
deemed, for the purposes of this Agreement to be served on the
Sellers.
19.2 In the absence of evidence of earlier receipt, any notice or
other communication shall be deemed to have been duly given:
(a) if delivered personally, when left at the address
referred to in this Agreement; and
(b) if sent by registered post, 48 hours after posting
it.
20. GOVERNING LAW AND JURISDICTION
20.1 This Agreement is governed by, and shall be construed in
accordance with the laws of Ireland.
20.2 Each party irrevocably agrees that the courts of Ireland shall
have non-exclusive jurisdiction to hear and determine any suit,
action or proceedings, and to settle any disputes, which may
arise out of or in connection with this Agreement and, for such
purposes, each party irrevocably submits to the jurisdiction of
the courts of Ireland.
20.3 Without prejudice to any other mode of service:
(a) the Sellers irrevocably appoint the Sellers'
Solicitors or, such other solicitors as notified in
writing to the Buyer by the Sellers' Representative, as
agents for service of process relating to and for all
matters concerning the conduct of any proceedings before
the courts of Ireland in connection with this Agreement;
and
(b) each party agrees that failure by a process agent
to notify it of the process will not invalidate the
proceedings concerned.
21. ENTIRE AGREEMENT
The parties agree that :
21.1 This Agreement and the other documents to be entered into
pursuant to it contains the entire, complete and exclusive
agreement and understanding between the parties hereto relating
to the transactions provided for in this Agreement and
supersedes and extinguishes all previous drafts, agreements,
contracts, undertakings and collateral warranties, whether
written or oral, express or implied (if any) between such
parties in respect of such matters;
21.2 In entering into this Agreement, it has not relied on any oral
or written representation, warranty or other assurance other
than the Warranties;
21.3 So far as permitted by law and except in the case of fraud no
party hereto shall be liable, whether in contract, tort or
otherwise, for any representation, warranty or assurance
whether innocently or negligently made, not set out in this
Agreement and each party waives all remedies which might
otherwise be available to it in respect thereof.
21.4 The parties shall not have the right to rescind or terminate
this Agreement for breach of contract or for negligent or
innocent misrepresentation.
22. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which when executed and delivered shall be an original, but all the
counterparts together shall constitute one and the same instrument.
[The registrant hereby agrees to furnish supplementally a copy of any of the
omitted schedules to this agreement to the Commission upon request.]
