Exhibit 10.11
[LOGO] ASHURST XXXXXX XXXXX
AGREEMENT
AMI Semiconductor Belgium BVBA
And
AMI Semiconductor Inc.
And
STMicroelectronics NV
for the acquisition of the business of the Mixed Signal
Division of Alcatel Microelectronics
8th May 2002
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CONTENTS
CLAUSE ................................................................ PAGE
1. INTERPRETATION ................................................... 1
2. SALE AND PURCHASE ................................................ 10
3. CONDITIONS ....................................................... 10
4. PERIOD TO COMPLETION ............................................. 12
5. CONSIDERATION .................................................... 15
6. COMPLETION ....................................................... 15
7. PROPERTIES ....................................................... 17
8. ACTION AFTER COMPLETION .......................................... 17
9. LIABILITIES OF THE SELLER AND BUYER .............................. 18
10. RECEIVABLES AND PAYABLES ......................................... 19
11. CONTRACTS ........................................................ 19
12. EMPLOYEES ........................................................ 20
13. TAX .............................................................. 21
14. WARRANTIES AND INDEMNITY ......................................... 21
15. NON-COMPETE COVENANT AND PROTECTION OF GOODWILL .................. 22
16. CONFIDENTIAL INFORMATION ......................................... 22
17. ANNOUNCEMENTS .................................................... 23
18. ASSIGNMENT ....................................................... 23
19. COSTS ............................................................ 24
20. EFFECT OF COMPLETION ............................................. 24
21. ENTIRE AGREEMENT ................................................. 24
22. WAIVER ........................................................... 25
23. INVALIDITY ....................................................... 25
24. NOTICES .......................................................... 25
25. ORIGINALS ........................................................ 26
26. GOVERNING LAW AND JURISDICTION ................................... 26
27. SELLER'S GUARANTEE ............................................... 27
28. BUYER'S GUARANTEE ................................................ 27
29. FOREIGN EQUIVALENCY .............................................. 28
SCHEDULE 1 ............................................................ 29
Assumed Employees ..................................................... 29
SCHEDULE 2 ............................................................ 30
Warranties ............................................................ 30
SCHEDULE 3 ............................................................ 39
Limitations on Liability .............................................. 39
SCHEDULE 4 ............................................................ 43
Properties ............................................................ 43
SCHEDULE 5 ............................................................ 44
Pensions .............................................................. 44
SCHEDULE 6 ............................................................ 45
Agreed Terms Documents ................................................ 45
SCHEDULE 7 ............................................................ 46
The Sellers' Guarantor's Guarantee .................................... 46
SCHEDULE 8 ............................................................ 48
The Buyers Guarantee .................................................. 48
SCHEDULE 9 ............................................................ 50
Environmental Indemnity ............................................... 50
SCHEDULE 10 ........................................................... 52
Best Knowledge of the Seller .......................................... 52
SCHEDULE 11 ........................................................... 53
Management Accounts and Financial Statements of the Company and the
Acquired Subsidiary ................................................. 53
SCHEDULE 12 ........................................................... 54
Allocation Rules ...................................................... 54
SCHEDULE 13 ........................................................... 55
Fixed Asset Budget 2002 ............................................... 55
(Clause 4.1(b))...............................................................55
SCHEDULE 14...................................................................56
Bonuses to Assumed Employees..................................................56
(Clause 4.1(b))...............................................................56
SCHEDULE 15...................................................................57
Patent Licence Agreement and Technology Transfer and Licence Agreement and
Assignment of Certain Patents from the Seller's Guarantor to the Buyer......57
SCHEDULE 16...................................................................58
Guarantees in Respect of Assumed Liabilities..................................58
SCHEDULE 17...................................................................59
Supply Agreement between the Buyer and the Seller's Guarantor.................59
SCHEDULE 18...................................................................60
Provisions of Global Supply Agreement and copy of the Volume Purchase
Agreement................................................................60
SCHEDULE 19...................................................................61
Deed of Adherence.............................................................61
SCHEDULE 20...................................................................62
Agreed upon Closing Policies and Procedures...................................62
SCHEDULE 21...................................................................63
Excluded Warranty Obligations.................................................63
SCHEDULE 22...................................................................64
Transitional Services Agreement Term Sheet....................................64
THIS AGREEMENT is made on 8th May 2002
BETWEEN:
(1) AMI SEMICONDUCTOR BELGIUM BVBA a company incorporated under the laws of
Belgium (the "Buyer"); and
(2) AMI SEMICONDUCTOR Inc. a Delaware corporation (the "Buyer's Guarantor");
and
(3) STMICROELECTRONICS NV, a company incorporated under the laws of the
Netherlands, (the "Seller's Guarantor").
THE PARTIES AGREE AS FOLLOWS:
1. INTERPRETATION
1.1 The following words and expressions shall, unless the context otherwise
requires, have the following meanings:
"ACCOUNTS DATE" means 31 December 2001;
"ACCOUNTING POLICIES" means those accounting policies described in the
Financial Statements and consistently applied by the Company;
"ACQUIRED SUBSIDIARY" means Mietec France, a French "Societe par actions
simplifiee (SAS)", with a share capital of EUR 40,000 registered with the
companies registry of Nanterre under n(degree) 399 395 581 RCS Nanterre,
having its registered office at 00/00 xxx Xxxxxx Xxxxxxxxxx -- 92 360
Meudon xx Xxxxx;
"ACTIVITIES" means any activity, operation or process carried out by the
Seller at any Property;
"AGREED UPON CLOSING POLICIES AND PROCEDURES" shall mean those accounting
principles, rules and methods described in Schedule 20 to this Agreement;
"ALCATEL" means Alcatel, a French societe anonyme, with a share capital of
E2,481,539,594 registered with the Companies Registry of Paris under number
542 019 096, having its registered office at 00 xxx xx xx Xxxxxx, 00000
Xxxxx, Xxxxxx;
"ALCATEL AGREEMENT" or "SPA" means the agreement dated 15 April 2002
between Alcatel, Alcatel Xxxx N.V. and the Seller's Guarantor under which
the Seller's Guarantor is to acquire the Company;
"ALCATEL GROUP" means Alcatel and each of its Related Persons including,
for the avoidance of doubt, Alcatel Xxxx NV;
"ALCATEL TRANSACTION DOCUMENTS" means the Alcatel Agreement and each of the
agreements to be entered into by any of the Seller, the Seller's Guarantor,
Alcatel and Alcatel Xxxx N.V. pursuant to or in connection with the Alcatel
Agreement, including agreements contained in the schedules to the Alcatel
Agreement;
"ALCATEL TRANSITIONAL SERVICES AGREEMENT" means the agreement, in the
agreed terms, between Alcatel and the Buyer in respect of transitional
services to be provided by the Alcatel Group directly to the Buyer;
"ALLOCATION RULES" has the meaning given to that term in schedule 12;
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"ASSETS" means all of the non cash tangible and intangible assets used by the
Company and the Acquired Subsidiary in the carrying out of MSB, other than the
Excluded Assets;
"ASSUMED EMPLOYEES" means those employees of MSB as identified in Schedule 1,
together with those persons agreed upon between the Buyer's Guarantor and the
Seller's Guarantor, employed by MSB between the date hereof and Completion with
the consent of the Buyer less those persons identified in Schedule 1 who resign
between the date hereof and Completion;
"ASSUMED LIABILITIES" means all liabilities (whether known or unknown, whether
done or omitted to be done) associated with the ongoing operation of MSB (but
generally not obligations arising outside the Ordinary Course of Business
unless otherwise specified in the Agreement) prior to the Completion Date,
including:
(a) the obligations of the Seller under the Contracts (but excluding the
Excluded Contract Liabilities);
(b) the Payables and Current Liabilities;
(c) the employment and compensation obligations of the Seller in respect of
the Assumed Employees pursuant to clause 12;
(d) active warranty obligations other than the Excluded Warranty Obligations
(provided, and to the extent that an appropriate reserve, as per current
Accounting Policies, is reflected in the Financial Statements; and
(e) the obligations of the Seller in respect of the Properties and Leases
pursuant to clause 4;
"BELGIAN PROPERTY" means the property located at 9700 Xxxxxxxxx, Xxxxxxxxxx
00, Xxxxxxx;
"BENEFIT PLAN" means any plan, pension plan, arrangement or scheme maintained,
sponsored or participated in by the Company and the Acquired Subsidiary,
relating to the Assumed Employees (including but not limited to retirement,
disability, life insurance, death benefit schemes and arrangements);
"BEST EFFORTS" means the efforts that a prudent person desirous of achieving a
result would use in similar circumstances to ensure that such result is
achieved as expeditiously as possible;
"BEST KNOWLEDGE OF THE SELLER" shall mean that the Seller shall be deemed to
have knowledge of such particular fact or other matter if any of those persons
listed in Schedule 10 (being members of the management of Seller and/or
the Acquired Subsidiary, and/or the Seller's Guarantor and/or Alcatel), is
actually aware of such fact or other matter, or if in the Ordinary Course of
Business they would be reasonably expected to know;
"BOOKS AND RECORDS" means all books and records and including tool registers,
books of account, financial and tax records, and all other records relating to
MSB as at Completion;
"BREACH" means breach of, or failure to perform or comply with, a
representation, warranty, covenant, obligation, or other provision of this
Agreement or any instrument or agreement delivered or executed pursuant to this
Agreement;
"BUSINESS DAY" means any day other than a Saturday, Sunday or legal holiday in
France and in Belgium;
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"BUSINESS INFORMATION" means all information, know-how and documentation (and
on whatsoever medium they are stored) relating to MSB and the Assets as at
Completion including all correspondence, promotional material, lists of
customers and suppliers, technical or computer hardware or software manuals;
"BUSINESS INTELLECTUAL PROPERTY" means Intellectual Property owned by or
licensed, by the Alcatel Group, (with the right to sub-license), to the Seller
or a member of the Seller's Group and used in MSB, together with the goodwill
relating thereto comprising the registered and unregistered Intellectual
Property set out in the Patent Assignment and Patent License Agreement and the
rights provided to certain Intellectual Property of Seller's Guarantor pursuant
to the terms of the Technology Transfer and License Agreement in the agreed form
attached hereto in Schedule 15;
"BUYER'S DESIGNEE(S)": means Buyer's Guarantor or any company which is a
Subsidiary of the Buyer's Guarantor, to be designated, as the case may be, by
Buyer to purchase all or part of the Assets in accordance with this Agreement,
notified to Seller not less than five days prior to Completion Date, provided
however that Buyer and Buyer's Guarantor shall each remain severally and
jointly liable for any and each of Buyer Designee(s) obligation under this
Agreement.
"BUYER'S GROUP" means the Buyer, the Financial Investors, the Buyer's Guarantor
and any subsidiary undertakings and the associated companies from time to time
of Buyer or the Buyer's Guarantor, all of them and each of them as the context
admits;
"BUYER'S SOLICITORS" means both or each of Ashurst Xxxxxx Xxxxx and Xxxxxxx;
"COMPANY" or "SELLER" means Alcatel Microelectronics NV, a company incorporated
in Belgium, whose registered office is at Xxxxxxxxxx 00, X-0000 Xxxxxxxxxx,
Xxxxxxx;
"COMPLETION DATE" means the date upon which Completion takes place pursuant to
clause 6 or, as the context may require, is scheduled to take place;
"CONDITIONS" means the conditions set out in clause 3.1;
"CONSENTS" means any approval, consent, ratification, waiver or other
authorisation, including any Governmental Authorisation;
"CONTEMPLATED TRANSACTIONS" means all of the transactions contemplated by this
Agreement including the Transaction Documents.
"CONTINGENT LIABILITIES" means a contingent loss or liability representing an
existing condition, situation or set of circumstances involving uncertainty as
to possible loss or liability that will ultimately be resolved when one or more
future events occur or fail to occur. Resolution of uncertainty may confirm
the loss or impairment of an asset or the incurrence of a liability;
"CONTRACTS" means any agreement, contract or obligation in written form that is
legally binding and relating to MSB;
"CONTROL" shall have the meaning set forth in Article L. 233-3 of the French
Commercial Code;
"CURRENT ASSETS" means the Stocks and Receivables and all Other Current Assets
(determined in accordance with the Allocation Rules);
"CURRENT LIABILITIES" means the Payables and Other Current Liabilities plus all
the reserves in respect of active obligations of MSB determined in accordance
with the Allocation Rules;
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"DEED OF ADHERENCE" means a deed to be executed by the Company, the Seller's
Guarantor, the Buyer's Guarantor and the Buyer in the form as is set out in
schedule 19;
"ENCUMBRANCE" means any charge, claim, lien, mortgage, option, pledge, other
security interest or other equivalent or similar third party right;
"ENVIRONMENTAL INDEMNITY" means the indemnity in the agreed terms to be given
by Alcatel to the Buyer in the terms of Schedule 9;
"EXCLUDED ASSETS" means any assets or rights and the benefit of any claims as
at Completion in the following:
(a) cash in hand and at bank of MSB (other than xxxxx cash at locations at
which the MSB is conducted and which is related to MSB); and
(b) assets disposed of by the Seller in the Ordinary Course of Business as
permitted by this agreement between the date hereof and the Completion
Date;
"EXCLUDED LIABILITIES" means:
(a) any and all obligations, liabilities, costs, claims, losses, demands and
expenses (arising in any way or manner whatsoever) owed to Alcatel (or any
of its Related Persons) or the Seller (or any of its Related Persons) for
anything done or omitted to be done before the Completion Date; and
(b) any and all obligations, liabilities, costs, claims, losses, demands and
expenses exceeding, in aggregate, Euro 2,000,000 (arising in any way or
manner whatsoever in respect of the claims relating to:
(i) in respect of Hella;
(ii) in respect of Square D; and
(iii) in respect of Xxxxxxxxx,
in each case as disclosed in Schedule 21
(collectively the "EXCLUDED WARRANTY OBLIGATIONS")
"EXCLUDED CONTRACT LIABILITIES" means all liabilities of the Seller or any
member of the Seller's Group or Alcatel or any member of the Alcatel Group
relating to or arising in connection with any breach of contract, breach of
duty or which are attributable to any act, neglect, omission, or default of the
Seller's Group or Alcatel Group prior to Completion outside the Ordinary Course
of Business, save to the extent that such liabilities are specifically included
as an Assumed Liability and to the extent that such liability has not been
accrued in the Financial Statements;
"FINANCIAL INVESTORS" means Francisco Partners L.P. and Citigroup Venture
Capital L.P.;
"FINANCIAL STATEMENTS" means the audited financial statements of the Company
for the year ending on December 31, 2001 prepared in accordance with GAAP (as
adapted by the Accounting Policies which are set out in the notes to the
Financial Statements), disclosed at Schedule 11 and the audited financial
statement for the Acquired Subsidiary for the year ending on December 31, 2001
to be provided by Seller to Buyer as soon as available and in any case prior to
Completion Date and disclosed at Schedule 11;
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"GAAP" means French generally accepted accounting principles consistently
applied by Alcatel and adapted as described in the Accounting Policies or
the Agreed Upon Closing Policies and Procedures;
"GLOBAL SUPPLY AGREEMENT" means the agreement between Alcatel and the
Seller's Guarantor as defined in Section 7.3 of the Alcatel Agreement;
"GOODWILL" means the goodwill relating to MSB as at Completion together
with the exclusive right for the Buyer to represent itself as carrying on
MSB in succession to the Seller;
"GOVERNMENTAL AUTHORISATION" means any material approval, authorisation,
consent, license, permit, waiver or other authorisation issued, granted,
given or otherwise made available to the Company and/or the Acquired
Subsidiary by or under the authority of any governmental body or pursuant
to any Legal Requirement and which is mandatory for the purpose of carrying
out the MSB;
"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Improvements Act of 1976, as amended,
and the rules and regulations promulgated thereunder;
"INTELLECTUAL PROPERTY" means any and all of the following rights arising
from or used in connection with the MSB:
(a) all patents, and
(b) trade names, and company names (hereinafter "TRADE NAMES") trade marks and
service marks and applications for registration and registrations thereto
(hereinafter "MARKS"), registered internet domain names that are related
to the MSB and in which the Company and/or Acquired Subsidiary have any
ownership interest or license right, the corporate trade marks and service
marks Alcatel word and Alcatel logo (hereinafter "CORPORATE MARKS"), and
(c) know how, processes, engineering and design know how;
"LEASES" means the leases the details of which are set out in part 3 of
schedule 4;
"LEGAL REQUIREMENT" means any treaty, legislation, constitution, statute,
decree, ordinance, rule, regulation, order or other similar act or document
promulgated by one or more governmental bodies having legislative,
rulemaking or regulatory authority;
"LOSS" means losses, costs, reasonable expenses and liabilities, excluding
any indirect or consequential damages (indirect or consequential damages to
include, without limitation, loss of profits and loss of revenue);
"MANAGEMENT ACCOUNTS" means the unaudited accounts of the Company,
including profit and loss accounts by division as they relate to the period
of the five quarters to and including the first quarter of 2002, disclosed
at Schedule 11 to this agreement;
"MATERIAL ADVERSE CHANGE" means any event, change, circumstance, loss, failure,
effect or other occurrence in connection with the MSB which is materially
adverse to the financial condition of the MSB when considered as a whole, other
than any such event, change, circumstance, transaction, loss, failure, effect or
other occurrence occurring as a result of general economic or financial
conditions not unique to the MSB or general events affecting the industry or
customers of MSB not unique to MSB;
"MATERIAL CONTRACTS" means Contracts which in respect of the MSB or the Assets:
(a) involve the receipt or payment of more than Euro1,000,000 in any
twelve month period;
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(b) may not be terminated on notice of less than 6 months; or require a
payment of a sum or indemnity of more than Euro 500,000 upon termination;
(c) require notice to be given to the other party(ies) or will be subject to
termination following a change in the ultimate control of the Company; or
(d) the absence or termination would be a Material Adverse Change.
"MIXED SIGNAL DIVISION" means the mixed signal division of the Seller and
the Acquired Subsidiary such division conducting activities as described in
the Alcatel Microelectronics Descriptive Memorandum dated December 2001,
such activities comprising the product areas of (i) automotive, Industrial
and Peripherals, (ii) Telematics, (iii) Power and Battery Management, (iv)
ISDN and POTS, and (v) Telecom ASICs; For the avoidance of doubt, there are
no power and battery management devices of wireless DSL chipsets and the
power and battery management devices for wireless chipsets are not in the
scope of the Mixed Signal Division;
"MSB" means the business of the Mixed Signal Division carried on by the Seller
and the Acquired Subsidiary and wheresoever carried on;
"MSB CONFIDENTIAL INFORMATION" means all information relating to MSB, including
its operations, trade secrets or financial or other affairs (including the
future plans and targets of MSB) which is not in the public domain, and which
the Buyer shall clearly define in writing as comprising Confidential Information
within 30 days from Completion;
"MSB PRODUCTS" means products of the MSB as at the date of Completion (other
than the Telecom ASICs listed in Annex 2 of the Volume Purchase Agreement and
section 2 of the Global Supply Agreement);
"NON MSB CONFIDENTIAL INFORMATION" means all information relating to the Company
or the Acquired Subsidiary (other than the MSB Confidential Information),
including its operations, trade secrets or financial or other affairs (including
the future plans and targets) which is not in the public domain, and which the
Seller shall clearly define in writing as comprising confidential information
within 30 days from Completion;
"ORDER" means any award, decision, injunction, judgement, order, ruling,
subpeona or verdict entered, issued, made or rendered by any court or by any
arbitral tribunal;
"ORDINARY COURSE OF BUSINESS" shall be interpreted so that an action shall be
taken or deemed to have been taken by a person in the ordinary course of
business only if such action is:
(a) consistent with the past practices of such Person and taken, or to be
taken, in the ordinary course of the normal day-to-day operations of such
Person provided that it is consistent with the current market conditions;
or
(b) similar in nature and magnitude to actions customarily taken in the
ordinary course of the normal day-to-day operations of other Persons that
are in the same line of business as such Person;
"ORGANISATIONAL DOCUMENTS" means (a) the "status", articles of association or
certificate of incorporation and the bylaws of a corporation; (b) the
partnership agreement and any statement of partnership of a general partnership;
(c) the limited partnership agreement and the certificate of limited partnership
of a limited partnership; (d) any charter or similar document adopted or filed
in connection with the creation, formation, or organisation of a Person; and (e)
any amendment to any of the foregoing;
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"OTHER CURRENT LIABILITIES" means current liabilities of MSB as determined in
accordance with the application of the Accounting Policies and Allocations Rules
applied on a consistent basis excluding Payables.
"OTHER CURRENT ASSETS" means current assets of MSB as determined in accordance
with the application of the Accounting Policies and Allocation Rules, applied
on a consistent basis, excluding Stocks and Receivables;
"PAYABLES" means all amounts due or accrued in the Ordinary Course of Business
at the Completion Date, to third parties in respect of MSB as at Completion as
determined in accordance with the application of the Accounting Policies and
Allocation Rules;
"PERSON" means any individual, corporation (including any not-for-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organisation, labour union or other entity
or governmental body;
"PROCEEDINGS" means any action, arbitration, litigation or suit (whether
criminal or administrative) commenced, brought, conducted or heard by or before
or otherwise involving any court or an arbitral tribunal;
"PROPERTIES" means the real properties particulars of which are set out in part
1 of Schedule 4 and shall include where the context so admits the individual
real properties comprising the Properties or any part or parts thereof and
"Property" shall be construed accordingly;
"PROJECTED BENEFITS OBLIGATIONS -- PBO" means the actuarial present value of all
benefits attributed by the plan's benefit formula using the same projected unit
credit cost as the one defined under US FAS Board Statement N. 87 -- under the
applicable pension plan(s) of the company employee service rendered prior to
that date. The PBO as of the Completion Date is determined as follows:
(a) the PBO calculated as of 1 January 2002;
(b) increased by the pro rata service cost plus the pro rata interest cost
minus the benefits paid in the period between 1 January 2002 and the
Completion Date;
For clarification purposes, the incremental PBO as of the Completion Date is
measured based on discount rate of 6.5%, future merit levels (excluding
inflation) of 2.5%, Expected Inflation and the applicable decrement tables.
Expected Inflation is defined as the average of the difference between the
nominal yield on the OAT maturity 2012 and the real yield on the OAT i.e. 2012
as observed on Reuters for March 2002;
"PURCHASE PRICE" has the meaning given to that sum in clause 5.1(a);
"RECEIVABLES" means all amounts owed to or accrued in the Ordinary Course of
Business of MSB in favour of the Seller, any other member of the Seller's Group
in respect of MSB at Completion as determined in accordance with the application
of the Accounting Policies and Allocation Rules and any receivables allocated to
the Buyer pursuant to clause 10.4 shall be deemed Receivables for the purpose of
this definition;
"RELATED PERSON" means with respect to a specified Person (other than an
individual):
(a) Any Person that, directly or indirectly, Controls, is Controlled by, or is
under common Control with, such specified Person; and
(b) any Person that serves as a director or officer of such specified Person.
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"RENTED PREMISES" means the premises over which the Company and Acquired
Subsidiary have possession by virtue of leases relating to the MSB;
"REPRESENTATIVE" means with respect to a particular Person, any director,
officer, employee, agent, consultant, adviser or other representative of such
Person, including legal counsel, accountants and financial advisers;
"RETAINED EMPLOYEES" means any persons other than the Assumed Employees who are
or have been at any time prior to Completion engaged to any extent in MSB;
"RETAINED LIABILITIES" means, in respect of the period prior to the Completion
Date, all liabilities (whether known or unknown, whether done or omitted to be
done) relating to the Assets, Property, Lease or MSB which does not constitute
an Assumed Liability;
"SELLER'S ACCOUNT" means the account in the name of the Seller, that the Seller
or the Seller's Guarantor shall have given the full details of in writing to the
Buyer 5 Business Days prior to the Completion Date;
"SELLER'S GROUP" means the Seller, the Seller's Guarantor and any subsidiary
undertakings of the Seller's Guarantor, all of them and each of them as the
context admits;
"SELLER'S SOLICITORS" means Xxxxxxxx Chance;
"STATUTORY ACCOUNTS" means the statutory accounts of the Company for the three
fiscal years ending on the Accounts Date as filed with National Bank of Belgium;
"STOCKS" means the stocks in trade or inventories, raw materials, component
parts, fuels, packing materials, work in progress and finished goods held,
acquired or produced in connection with MSB and related to MSB as determined in
accordance with the Allocation Rules which are at Completion at the Properties
or elsewhere;
"SUBSIDIARY" with respect to any person (the "Parent"), means any Person
Controlled directly or indirectly by such Parent;
"SUPPLY AGREEMENT" means the supply agreement between the Buyer and the Seller's
Guarantor to be entered into on the Completion Date in the form of Schedule 17;
"TAX" means any tax, levy, impost, duty, and any related charge or withholding
(including any fine, penalty, interest or addition to tax), imposed, assessed or
collected by or under the authority of any governmental body;
"TAXATION AUTHORITY" means any government, state or municipality or any local,
state, federal or other fiscal, revenue, customs or excise authority, body or
official anywhere in the world competent to impose, collect or administer any
Tax (including VAT) or make any ruling on any matter relating to Tax;
"TAX REGULATIONS" means any tax law as well as statute, decree, ordinance, rule,
order or other legally binding texts of general application applicable in a
given country as well as any international treaty relating to Tax (including the
Law, directive, regulations, statute, decree, ordinance, rule, order or other
legally binding texts of general application, in each case implementing such
treaty);
"TAX RETURN" means any return (including, without limitation, any information
return), report, statement, schedule, notice, form or other document or
information filed with or submitted to, or required to be filed with or
submitted to, any governmental body in connection with the determination,
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assessment, collection or payment of any Tax or in connection with the
administration, implementation or enforcement of, or compliance with, any
Legal Requirement relating to any Tax;
"TELECOM ASICS AGREEMENT" means an agreement which assigns the provisions
of article 2 of the Global Supply Agreement and the Volume Purchase
Agreement which relate to the purchase by Alcatel of the Products listed on
schedule 18;
"TRADE XXXX PHASE OUT LICENCE" means the licence, in the agreed terms, to
be granted by Alcatel to the Buyer in the terms of clause 5.5 of the
Alcatel Agreement;
"TRANSACTION DOCUMENTS" means each of the:
(a) Patent Licence Agreement between the Company and the Buyer;
(b) Patent Assignment of rights to certain patents between the Seller's
Guarantor, the Buyer and Alcatel;
(c) Technology Transfer and License Agreement between the Company, the
Seller's Guarantor and the Buyer;
(d) Supply Agreement between the Buyer and the Seller's Guarantor;
(e) Transitional Service Agreement between the Company and the Buyer;
(f) Agreement Relating to Back End Transitional Services between the Buyer
and the Company;
(g) Notary Deed relating to the transfer of the Properties by the Company
to the Buyer;
(h) Telecom ASIC's agreement;
(i) any other documents or agreements that before the Completion Date the
Buyer's Solicitors and the Seller's Solicitors agree are to be
included as Transaction Documents;
"TRANSFERRED EMPLOYEES" means those employees transferred to the Seller's
Guarantor pursuant to the Alcatel Transaction Documents;
"VAT" means such Tax as may be levied by reference to, inter alia, added
value, sales of goods, use or supplies and excluding any Tax on transfer or
sale of property;
"VOLUME PURCHASE AGREEMENT" means the agreement between Alcatel and the
Seller attached at Schedule 18;
"WARRANTIES" means the warranties set out in clause 14 and schedule 2,
Parts A and B;
"WORKING CAPITAL" means Current Assets less Current Liabilities as they are
allocated between MSB and the other divisions of the Seller and the
Acquired Subsidiary as determined in accordance with the Allocation Rules.
1.2 In this agreement unless otherwise specified, reference to:
(a) a document in the "AGREED TERMS" is a reference to that document in
the form approved and for the purposes of identification signed by or
on behalf of each party including those documents listed in schedule
6;
(b) "INCLUDES" and "INCLUDING" shall mean including without limitation;
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(c) a "PARTY" means a party to this agreement and includes its permitted
assignees (if any) and/or the successors in title to that part of its
undertaking which includes this agreement;
(d) a "STATUTE" or "STATUTORY INSTRUMENT" or "ACCOUNTING STANDARD" or any
of their provisions is to be construed as a reference to that statute
or statutory instrument or accounting standard or such provision as
the same may have been amended or re-enacted before the date of this
agreement;
(e) "CLAUSES", "PARAGRAPHS" or "SCHEDULES" are to clauses and paragraphs
of and schedules to this agreement;
(f) "WRITING" includes any methods of representing words in a legible form
(other than writing or an electronic or visual display screen) or
other writing in non-transitory form; and
(g) words denoting the singular shall include the plural and vice versa
and words denoting any gender shall include all genders.
1.3 The schedules form part of the operative provisions of this agreement and
references to this agreement shall, unless the context otherwise requires,
include references to the schedules.
1.4 The index to and the headings in this agreement are for information only
and are to be ignored in construing the same.
2. SALE AND PURCHASE
2.1 Upon the terms and subject to the conditions of this agreement, the Seller
shall and the Seller's Guarantor shall cause the Seller, any applicable
member of the Seller's Group or the Alcatel Group or the Acquired
Subsidiary as owner to sell and the Buyer shall purchase the Assets and MSB
as a going concern with effect from Completion free from any Encumbrance
(save as expressly stated herein) and together with all accrued benefits
and rights and all Assumed Liabilities attached thereto.
2.2 Subject to clause 8.5, it is intended by the Seller's Guarantor and the
Buyer's Guarantor that such sale and purchase of the Assets and MSB shall
occur simultaneously with completion of the SPA.
2.3 The Excluded Assets are not included in the sale and purchase pursuant to
clause 2.1.
2.4 The consideration for such sale and purchase shall be as specified in
clause 5.
3. CONDITIONS
3.1 Completion is conditional upon the fulfilment of each of the Conditions as
follows:
(a) completion of the Alcatel Agreement and each of the Alcatel
Transaction Documents having occurred without the waiver by Seller's
Guarantor of (i) any breach or failure to perform or comply with any
agreements and covenants required by the Alcatel Agreement to be
performed or complied with by any party thereto, other than the
Seller's Guarantor or (ii) any condition precedent for the benefit of
Seller's Guarantor, which in each case, relates to MSB provided
however that Seller's Guarantor shall be entitled to grant any such
waiver with respect to the MSB with the prior written consent of
Buyer;
(b) the Company executing the Deed of Adherence under which it will become
a party to this Agreement;
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(c) all of the Seller's and the Buyer's representations and warranties
in this agreement (considered collectively), and each of these
representations and warranties (considered individually) must have
been true, accurate in all material respects and not materially
misleading, in each case, as of the date of this agreement and the
Completion Date as if made on such date;
(d) the Seller, the Seller's Guarantor, the Buyer and the Buyer's
Guarantor shall have performed and complied with in all material
respects all agreements and covenants required by this Agreement to
be performed or complied with by it prior to or at Completion;
(e) all notifications and consultations required under any applicable
Legal Requirement shall have been made in all material respects and
all Consents (if any), (including, without limitation any consent
under the HSR Act) materially required to operate the MSB shall
have been obtained;
(f) the delivery by the Belgian Tax Authority to the Seller of a valid
certificate with regard to the Company as meant in article 442 bis
of the Belgian Income Tax Code 1992;
(g) the performance of an orientating soil survey ("orienterend
bodemonderzoek") as defined in the Flemish Soil Decontamination
Decree of 22 February 1995 ("het Vlaams decreed van 22 februari
1995 betreffende de bodemsanering")(the "Decree") and any
subsequent descriptive soil survey ("beschrijvend bodemonderzoek")
or other actions that may be required under the Decree in respect
of the transfer to Buyer or Buyer's Designee of the Property
located at 9700 Xxxxxxxxxx, Xxxxxxxxxx 00, Xxxxxxx;
(h) the obtaining of all required oil certificates ("bodemattesten")
as defined in the Decree in respect of the transfer of the Property
to Buyer or Buyer's Designee located at 9700 Xxxxxxxxxx,
Xxxxxxxxxx 00, Xxxxxxx;
(i) the written consent by the municipality of Oudenaarde in respect of
the transfer to Buyer or Buyer's Designee of the Property located
at 9700 Xxxxxxxxxx, Xxxxxxxxxx 00, Xxxxxxx;
(j) simultaneous valid and binding execution and delivery of the
Transaction Documents; and
(k) no material Breach having been committed by either the Buyer or the
Seller which has not been waived by the Party not in Breach.
3.2 The Buyer may by notice in writing to the Seller's Guarantor waive any of
the Conditions of clause 3.1 in whole or in part. The Seller's Guarantor
may by notice in writing to the Buyer waive any of the conditions of sub
clause 3.1(e) in whole or in part.
3.3 The Seller's Guarantor and the Buyer each undertake to each other to use
all reasonable endeavours to procure the fulfillment of the Conditions of
clause 3.1 between 15 June and 30 June 2002 or any other date to be
mutually agreed in writing. The Buyer agrees to use all reasonable
endeavours to procure the fulfilment of the Conditions set on in
sub-clause 3.1(e) between 15 June and 30 June 2002 or such other mutually
agreed date. The Seller's Guarantor shall procure that, immediately
following the completion of the SPA, the Seller shall execute the Deed of
Amendment so that the Seller immediately becomes a party to this Agreement
and immediately thereafter the Seller's Guarantor, the Buyer and the
Buyer's Guarantor shall each execute the Deed of Amendment.
3.4 If all of the Conditions have not been fulfilled on or before the earlier
of 30 September 2002 or the date on which the Alcatel Agreement is
terminated by the Seller's Guarantor in respect of a breach of the Alcatel
Agreement by Alcatel in accordance with its terms, or any other mutually
agreed date this Agreement shall terminate with effect from that date.
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3.5 If this Agreement terminates in accordance with clause 3.4 or clause 4.4
ten the obligations of the Parties shall automatically terminate save that
the rights and liabilities of the Parties which have accrued prior to
termination shall continue to subsist including those under clauses 16 to
19, 21 to 26 (inclusive).
3.6 The Seller's Guarantor and the Buyer's Guarantor shall keep each other
advised of the progress towards the satisfaction of its obligations under
clause 3.3.
3.7 Without prejudice to the generality of clause 3.4 above, if there are
jurisdictions where Consents as set out in clause 3.1(e) are required and
are suspensive, but are not obtained, a filing made but the waiting period
not expired, Completion in such jurisdictions shall not be effected and the
parties shall:
(a) agree to such variations to the terms of this Agreement as may be
necessary to reflect the fact that Completion of some but not all of
the businesses will occur; and
(b) use their Best Endeavours to obtain such Consents as are required in
order for the sale and purchase of each of the other businesses to
take place as soon as practicable after Completion and the parties
hereby agree to enter into or procure the entry into of any further
agreements or arrangements as may be deemed necessary in order to
effect the same.
4. PERIOD TO COMPLETION
4.1 OPERATION OF MSB
(a) Between the date of this Agreement and the Completion Date, the Seller
and the Seller's Guarantor (to the extent of its power to do so
pursuant to the terms of the Alcatel Agreement) shall cause MSB to be
conducted in the Ordinary Course of Business.
(b) Without limitation to the general character of clause 4.1(a) above the
Seller and, to the extent of its power to do so pursuant to the terms
of the Alcatel Agreement, the Seller's Guarantor warrants and agrees
that from the date of this Agreement to the Completion Date and save
with the prior written consent of the Buyer's Guarantor, which
response shall be given no later than four Business Days after
request, in the absence of response within said period, the Buyer's
Guarantor shall be deemed to have consented:
(i) no grant by the Company or the Acquired Subsidiary of a loan
credit or memory facility or amendment of an existing loan
credit or money facility shall be effected outside the Ordinary
Course of Business which will give rise to a Material Adverse
Change;
(ii) no grant by the Company or the Acquired Subsidiary of a
guarantee, charge, pledge or other Encumbrance over the Assets
or the Property shall be effected which shall not be fully
discharged or released as at the Completion Date;
(iii) none of the Company or the Acquired Subsidiary shall dispose of
any interest in the Properties or any of the Assets;
(iv) Capital investment related to MSB shall be spent in the
Ordinary Course of Business. In any event, the Company shall
invest in and pay for fixed assets related to MSB in the period
between the date of this Agreement and Completion Date in an
amount of at least the same proportions to the expenditures for
fixed assets of the Company for that period as the proportion
for MSB reflected in the Company's fixed asset budget for 2002
as a whole attached as Schedule 13;
(v) Stock shall be managed in the Ordinary Course of Business of
MSB;
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(vi) the Company and the Acquired Subsidiary will continue to manage
Working Capital in the Ordinary Course of Business of MSB;
(vii) except as disclosed in Schedule 14 neither the Company nor the
Acquired Subsidiary shall grant any benefit, premium or bonus
to their employees, directors and managers and the Company and
Acquired Subsidiary shall not conclude a remuneration contract
outside the standards applicable to the type of business
operated by the Company and Acquired Subsidiary and none of the
employees shall benefit from extra-statutory remunerations
which derogate from the applicable contract; and
(viii) neither the Company nor the Acquired Subsidiary shall enter
into or materially amend any long term agreements or
commitments, long term being defined as effective after
December 31, 2002, in each case, relating to MSB;
(c) For the purpose of giving the consents provided in paragraph (b) of
this sub-section, the Buyer's Guarantor hereby designates as the
Buyer's authorised representative Xxxxxxxxx Xxxx and Xxxxxx Xxxxxxxx
or any other person they nominate to the Seller's Guarantor as a
substitute for either of them;
(d) The Buyer shall only be entitled to claim for a breach by Seller's
Guarantor of section 4.1(b) or in the event of gross negligence or
wilful breach by the Seller's Guarantor in respect of the provisions
of clause 4.1(a).
4.2 REQUIRED APPROVALS
As promptly as practicable after the date of this agreement, the Seller's
Guarantor shall cause the Seller and the Buyer and Buyer's Guarantor shall
make all filings required by Legal Requirements to be made by them in order
to consummate the Contemplated Transactions. Between the date of this
agreement and the Completion Date, the Seller's Guarantor shall use its
Best Efforts to cause the Company to co-operate with the Buyer and Buyer's
Guarantor (a) with respect to all filings that the Buyer is required by
Legal Requirements to make in connection with the Contemplated Transactions
and (b) in obtaining all Consents.
4.3 ACCESS
(a) Both prior to and following Completion, the Seller's Guarantor and the
Seller (after it becomes a party to this agreement) agree to grant the
Buyer and its Representatives, during normal business hours,
reasonable access to employees of the Company and the Acquired
Subsidiary and to the auditors who signed the audit report in the
Financial Statements and the Statutory Accounts and to inspect and/or
copy any accounting, financial, legal or tax books and records of the
Company and the Acquired Subsidiary (including the Statutory Accounts
and any records or information relating to the preparation of the
Statutory Accounts) which shall include all relevant historical, and
current commercial information relating to MSB, including access or
information in connection with the preparation of financial statements
prepared in conformity with applicable regulations of the US
Securities and Exchange Commission (including Regulation S-X) by Buyer
or Buyer's Guarantor. The Seller shall grant all reasonable access to
the Buyer, as regards the Seller's accounting, financial, legal or tax
books and records, in order to provide the Buyer with access to
information reasonably required by the Buyer for regulatory or other
filings.
It is understood that neither the Seller's Guarantor nor the Seller
shall be required to provide any information relating to the
preparation of the Statutory Accounts of the Seller, which may require
the Seller's Guarantor or the Seller to grant the Company's auditors
an indemnity or an
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agreement to hold harmless covenant which the Seller's Guarantor,
acting reasonably, in its own discretion, shall not deem acceptable.
(b) The Seller's Guarantor agrees to provide as soon as possible after
signing of this agreement all underwriting information necessary to
enable Buyer to subscribe to the relevant insurance policies and/or to
replace any group insurances at Completion.
(c) The Seller's Guarantor agrees that it shall use its Best Efforts, both
prior to and following Completion, to ensure that Alcatel provides the
access and the information referred to in (a) above to the Buyer.
4.4 NOTIFICATION
Between the signature of this agreement and the Completion Date or the
termination of this Agreement in accordance with its terms, the Seller
shall notify the Buyer as soon as reasonably practicable in writing if the
Seller becomes aware of any new event that causes or shall cause any
representation or warranty under clause 15 or schedule 2 or contained in
the Alcatel Agreement to be inaccurate or incomplete. The Seller may then
update the list of information disclosed to the Buyer, as set out in the
relevant Annex, in order to take into account the consequences of such new
event.
(a) If Seller does so update an Annex, the Buyer may nevertheless elect to
terminate this agreement (notwithstanding such update) if:
(i) the new event in question arises as a result of any breach by
Seller of its obligations contained in clause 4 hereof or as a
result of any act or omission of the Seller, or Seller's
Guarantor, or
(ii) the Seller has not used its Best Efforts to limit (or to cause
the Acquired Subsidiary to limit) any adverse consequences
which arise for the Company or the Acquired Subsidiary as a
result of the new event in question, or
(iii) the new event affects or could affect the Company or the
Acquired Subsidiary in a material respect, or
(b) If the Seller does so update an Annex, the Buyer may nevertheless
elect to terminate this agreement if the new event(s) would constitute
a material omission, change or misrepresentation to the schedules of
the SPA or this Agreement, which taken individually or cumulatively,
is materially adverse to MSB.
For the purposes of clause 4.4(a) and 4.4(b), "NEW EVENT" means any
event which occurs between the date hereof and the Completion Date and
which does not occur as a result of events already existing at the
date hereof.
(c) During the same period, the Seller's Guarantor shall notify the Buyer
as soon as reasonably practicable of the occurrence of any Breach of
any covenant of the Seller in this clause 4 or of Alcatel contained in
the Alcatel Agreement or of the occurrence of any event that may make
the satisfaction of the conditions in clause 3 impossible.
4.5 With respect to the MSB, the Seller's Guarantor undertakes to the Buyer
that it will not undertake any negotiations, communications or discussions
(including in the case of correspondence and any other written
documentation) with any trade union or other such organisation without
first informing the Buyer, and to the extent allowed involving a
representative of the Buyer. Furthermore, when meeting with the Seller's
employees or representatives from the date hereof until Completion to the
extent allowed by Alcatel the Seller shall not take any action in respect
of trade unions or organisations without the prior written approval of the
Buyer (such consent not to be unreasonably withheld).
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4.6 The Seller's Guarantor and the Buyer's Guarantor agree that prior to the
Completion Date they shall negotiate in good faith and enter into a
transitional services agreement at Completion containing the terms set
forth in Schedule 22 together with any other terms that they shall so
agree.
5. CONSIDERATION
5.1 (a) The Purchase Price (the "PURCHASE PRICE") payable for the sale and
purchase of the MSB and the Assets shall be an amount equal to 70
million euro.
(b) The total consideration in respect of the transactions contemplated by
this agreement shall be the sum of the Purchase Price and the
assumption of the Assumed Liabilities.
5.2 The Purchase Price shall be paid in full by electronic transfer of funds at
Completion in accordance with clause 6.3.
5.3 The Benefits Plan adjustment will be determined and paid in accordance
with Schedule 5.
5.4 For all tax and accounting purposes the Buyer and the Seller agree to
report the transactions contemplated in this Agreement in a manner
consistent with the Purchase Price allocation, and will not take any
position inconsistent therewith in any tax returns, in any refund claim, in
any litigation or otherwise, unless required to do so by a governmental
authority.
5.5 The Buyer and the Seller shall acting reasonably and in good faith an in
any event no later 60 days after Completion, agree on the allocation the
Purchase Price amongst the Assets so as to reflect a fair and responsible
allocation and neither party shall subsequently take any positions
inconsistent with such allocation.
5.6 Prior to the execution by a Belgian notary of the deed of transfer, between
the Seller and the Buyer, of the Belgian Property, the Parties shall have
agreed on the pro-fisco value of the Belgian Property, which shall be set
out in such deed of transfer. The Parties undertake to have such agreed
pro-fisco value validated by a Belgian real estate expert of their joint
choice, prior to the execution of the deed of transfer.
Should the Parties not be able to find an agreement on the amount of the
pro-fisco value, they shall appoint a Belgian real estate expert of their
joint choice in order to determine such pro-fisco value. The expert's
estimation shall bind the Parties and shall be included in the above
notarial deed of transfer.
6. COMPLETION
6.1 The purchase and sale provided for in this agreement is scheduled to take
place at the offices of the Seller's Solicitors on the date that is at the
latest four (4) Business Days following satisfaction (or waiver if
permitted) of all the conditions referred to in clause 3, or at such other
time and place as the Parties may agree except in relation to the
Properties where Completion shall take place in accordance with Part 2 of
schedule 4 or as otherwise agreed between the Seller and the Buyer. If, on
the scheduled Completion Date, the Seller signs, executes and delivers all
documents and performs all acts, matters and things required of it as set
out in or otherwise complies with clause 6.2 and all conditions have been
fulfilled or waived, such date shall be the Completion Date. Subject to the
provisions of clause 6.4, failure to consummate the purchase and sale
provided for in this agreement on the date and time and at the place
determined pursuant to this clause 6.1 shall not result in the termination
of this agreement and shall not relieve any Party of my obligation under
this agreement.
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6.2 At Completion the Seller shall:
(a) make available to the Buyer at the Properties:
(i) the Books and Records and that part of the Business Information
which is in writing; and relates to the MSB;
(ii) as well as all other Assets hereby agreed to be sold title to
which can be transferred by delivery,
with the intent that title in the Assets referred to in this clause
6.2(a) shall pass by and upon such delivery;
(b) deliver to the Buyer:
(i) duly executed assignments and/or novations and consents of
the Contracts listed in Schedule 6, as agreed between the
Seller's Guarantor and the Buyer;
(ii) a release of any Encumbrance other than Encumbrance that does
not materially effect the value or use of such Assets to which
any of the Assets owned by the Seller, the Acquired Subsidiary
or any member of the Alcatel Group, are subject;
(iii) a copy of the minutes of a meeting of the directors of the
Seller authorising the execution by the Seller of this agreement
and all other documents specified herein and an opinion from the
General Counsel of Seller's Guarantor, confirming that the
execution by the Sellers' Guarantor of this Agreement has been
duly authorised;
(iv) the agreement by the Seller to transfer all vehicle registration
documents in respect of any motor vehicles comprised in the
Assets together with all current test certificates and all
current road fund licences;
(v) duly executed copies of each of the Transaction Documents and
the Trademark Phase Out Licence, the Environmental Indemnity,
and the Alcatel Transitional Services Agreement; and
(c) upon request from the Buyer, do or procure the doing of all acts
and/or execute or procure the execution of all such documents in a
form reasonably satisfactory to the Buyer acting reasonably for the
purpose of vesting in the Buyer legal title to MSB and the Assets
(including, for the avoidance of doubt, the Property and the Leases)
as shall be required to comply with any Legal Requirement or as the
Buyer's Solicitors shall otherwise reasonably require which, in each
case, have been notified to the Seller's Solicitors five Business Days
prior to the Completion Date.
6.3 Upon compliance by the Seller with the provisions of clause 6.2 the Buyer
shall:
(a) provide for the transfer by electronic transfer of funds of the
Purchase Price (less any sum as determined pursuant to clause 8.5)
payable at Completion Date to the Seller's Account; and
(b) deliver to the Seller a counterpart of the documents referred to in
clauses 6.2, to which the Buyer or the Buyer's Guarantor is a party
duly executed by the Buyer or Buyer's Guarantor (as the context of
such documents so requires).
6.4 If in any respect the obligations of the Seller (or Buyer) pursuant to this
clause 6 are not complied with on the scheduled date for Completion or on
the date for legal completion of the transfer or assignment of any of the
Properties in accordance with schedule 4 the Party not in default may:
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(a) defer Completion to a date not more than 20 Business Days after
Completion should have taken place but for the said default (and so
that the provisions of this clause 6, apart from this clause 6.4(a),
shall apply to Completion as so deferred); or
(b) proceed to Completion so far as practicable (without prejudice to its
rights hereunder); or
(c) terminate this agreement without prejudice to the rights and
liabilities which accrued prior to termination which shall continue to
subsist including those under clauses 17 to 19 and 21 to 26
(inclusive).
7. PROPERTIES
The provisions of Schedule 4 shall apply in relation to the Properties and
the Leases with the intent that as at Completion (or such other time as
this Agreement may contemplate) the Buyer acquires full title to the
Property and the Lease without any Encumbrance.
8. ACTION AFTER COMPLETION
8.1 Forthwith after Completion the Seller shall join with the Buyer in sending
out a notice in the agreed terms to all the Buyer's and the Seller's
customers, clients or suppliers and their respective other business
contacts in respect of MSB.
8.2 After Completion the Seller shall promptly pass on to the Buyer all orders,
enquiries, notices, correspondence and information relating to MSB which
the Seller may receive.
8.3 Following Completion the Seller shall from time to time forthwith upon
request from the Buyer do or procure the doing of all acts and/or execute
or procure the execution of all such documents in a form reasonably
satisfactory to the Buyer for the purpose of vesting in the Buyer the title
to the Assets and MSB Business and otherwise giving the Buyer the full
benefit of this agreement. The Buyer and the Seller shall discuss the
allocation of any actual out of pocket cost or expense related thereto.
8.4 (a) In circumstances where the Trade Xxxx Assignment (as defined below)
has not been delivered to the Buyer and the Completion Date, the
Seller shall continue to use its Best Efforts to procure that the
benefit of clause 5.5 (Xxxx license Phase Out) of the Alcatel
Agreement is unconditionally assigned to the Buyer (for itself and
each of its Related Persons) and that the irrevocable written consent
of Alcatel is obtained to such assignment (the "Trade Xxxx
Assignment").
(b) Prior to the Trade Xxxx Assignment being completed or any member of
the Alcatel Group making a claim against any member of the Buyer's
Group in respect of any infringement of any Alcatel trade marks by any
member of the Buyer's Group, the Seller shall indemnify and keep
indemnified the Buyer (for itself and each of its Related Persons)
against any and all obligations, liabilities, claims, demands and
expenses arising from the fact that neither the Buyer nor any of its
Related Persons has delivered the benefit of the Trade Xxxx
Assignment.
8.5 (a) The Buyer and the Seller agree that they shall each use their
respective Best Efforts to seek that Completion of this Agreement
occurs as soon as is practicable immediately following the completion
of the Alcatel Agreement (the "Simultaneous Closing").
(b) if the reason why the Simultaneous Closing can not be achieved is due
to the conditions set forth in clause 3.1(h), (i) or (??illegible??)
not being satisfied on or prior to the completion of the completion of
the Alcatel Agreement, the Buyer agrees that it shall if so requested
by the Seller's Guarantor proceed to complete this Agreement
simultaneously with the Alcatel
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Agreement (save in respect of the Belgian Property) and to complete
the acquisition of the Belgian Property as soon as practicable
following the satisfaction of each of the conditions in clause 3.1(g),
(h) or (i) (the "SPLIT CLOSING") provided that
(i) (a) the Buyer shall pay to the relevant Taxation Authority
promptly following the Completion Date the amount of VAT
that it reasonably determines is due in respect of the
transfer of the Belgian Property (the "VAT Payment"), and
shall deduct such amount from the Purchase Price payable to
the Seller on the Completion Date;
(b) the Buyer shall, at Seller's request and at Seller's
expense, apply for a refund of the VAT Payment and shall
take all such actions as Seller may reasonably request in
order to obtain such refund;
(c) the Buyer shall promptly pay over to Seller all amounts
received or recovered from the Taxation Authority in respect
of the refund application referred to in (b) above, up to
the amount of the VAT Payment.
(ii) that the Buyer and the Seller shall have entered into a lease
(with nominal lease payments) under which the Buyer is granted
rights and assumes obligations so that it is in the same position
it would have been had the completion of the acquisition of the
Belgian Property occurred simultaneously with this Agreement.
(c) Prior to the Completion Date the Seller and the Buyer agree that they
shall each consider, in good faith and acting reasonably, any proposal
made by the other whereby (i) the structure of the acquisition of MSB
or the Assets or (ii) the mechanism set forth in clause 8.5(b) may be
altered so as to ensure that either or both party's derive the full
benefit of the transactions contemplated under this agreement.
8.6 The Seller's Guarantor agrees to consent to and execute any document
necessary to implement a modification to article 2 of the Global Supply
Agreement to permit a direct agreement between the Buyer's Group and
Alcatel if such arrangement is agreed to by Alcatel, provided that Buyer
and Buyers' Guarantor agree to hold Seller and Seller's Guarantor harmless
from any and all actual out of pocket liabilities, losses, damages, costs
and expenses net of any benefits received, including attorney's fees and
expenses arising from or in connection with Seller's Guarantor having to
comply with any of Buyer's obligations as a supplier due to Buyer's breach
of the terms of such Global Supply Agreement, including without limitation
any costs and expenses incurred by Buyer's guarantor in the event that
Alcatel shall require due performance by Buyer's Guarantor of the
obligations of Supplier pursuant to the Telecom Asie Agreement.
9. LIABILITIES OF THE SELLER AND BUYER
9.1 The Buyer shall:
(a) with effect from the Completion Date assume responsibility for and
indemnify the Seller against the payment or performance of the Assumed
Liabilities and all obligations, liabilities, costs, losses, claims
demands and expenses relating hereto.
(b) Perform any obligation falling due for performance or which should be
performed after completion in respect of any Assumed Liability and
shall use all reasonable endeavours to procure the cancellation of
those securities or guarantees given in respect of the Assumed
Liabilities by a member of the Seller's Group which have been
expressly disclosed in Schedule 16 provided that it shall not be
reasonable for the Buyer to provide any form of financial
accommodation, bond, guarantee, undertaking or the payment of cash to
procure such cancellation.
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9.2 The Seller shall
(a) with effect from the Completion Date retain responsibility for and
indemnify the Buyer against the payment or performance of the Retained
Liabilities; and
(b) perform any obligation falling due for performance or which should have
been performed before Completion in respect of any Retained Liability.
9.3 With regard to article 442 bis of the Belgian Income Tax Code 1992, the
Seller undertakes to indemnify the Buyer in full and hold it harmless
against any and all loss, liability, costs and expenses arising as a result
of (a) the Buyer being held jointly liable for any tax liabilities of the
Seller, and/or (b) any enforcement measure being taken by the Belgian tax
authorities against the Assets.
9.4 Upon and following Completion it shall be the responsibility of the Buyer
to effect all insurance cover in respect of MSB and the Assets.
10. RECEIVABLES AND PAYABLES
10.1 As and when required by the Buyer after Completion, the Seller shall
deliver to the Buyer assignments of such of the Receivables as the Buyer
may specify (the "ASSIGNED RECEIVABLES") and the Seller irrevocably
appoints any director of the Buyer after Completion to act as its attorney
in fact, with full power of substitution, in the execution of any such
assignment, such power of attorney being by way of security to secure the
Seller's obligations in connection with its sale of the Receivables.
10.2 Notwithstanding clause 10.1 the Seller undertakes to hold on trust for the
benefit of the Buyer any payments in respect of any Receivables received by
it and to pay the same to the Buyer forthwith on receipt.
10.3 The Seller shall sign and deliver to the Buyer any letter from it to each
of the persons from whom the Receivables are owed requiring them to pay
their respective part of the Receivables to the Buyer that the Buyer shall
reasonably request it sign.
10.4 The Seller and the Buyer agree that in respect of any receivable (either
due at the date hereof or which may become payable in the future) relating
to research and development grants that such receivables shall be allocated
amongst the Buyer and the Seller in accordance with the allocation of the
contracts that relate to MSB and the other divisions of the Company in
accordance with the Allocation Rules.
10.5 The Buyer undertakes to make all payments of the Payables in the Ordinary
course of Business.
10.6 The Buyer shall sign and deliver to the Seller any letter from it to each
of the persons to whom the Payables are owed notifying them that the Buyer
is responsible for the payment of the Payables that the Seller shall
reasonably request it sign.
11. CONTRACTS
11.1 If any of the Contracts cannot be assigned or novated to the Buyer without
the consent of a third party then the Seller shall use all Best Efforts to
obtain such consent (which shall include requesting that the applicable
member of the Alcatel Group use its reasonable endeavours to assist in
obtaining any such consent). Notwithstanding the foregoing, nothing
contained herein shall obligate the Seller to expend or pay any amount or
other type of consideration to obtain any consents, approvals or waivers.
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11.2 In any case where the consent in clause 11.1 above is refused or otherwise
not obtained and until it is obtained or where any of the Contracts are
incapable of transfer to the Buyer by assignment or by other means:
(a) the Seller shall hold such Contracts and any monies, goods or other
benefits received thereunder and shall forthwith upon receipt of the
same account for and pay or deliver to the Buyer without any deduction
or withholding whatsoever all such monies, goods and other benefits;
(b) the Buyer shall perform such Contracts to the extent that they are
Assumed Liabilities (if such sub-contracting is permissible and lawful
under the relevant Contract) as sub-contractor to the Seller;
(c) the Seller shall use Best Endeavours to enable the Buyer to enforce
the rights of the Seller under the Contracts and shall at all times
act with regard to the Contracts in accordance with the Buyer's
reasonable instructions from time to time; and
(d) the Seller shall not take any action in respect of the Contracts which
may have a Material Adverse Change without the prior written approval
of the Buyer.
11.3 Nothing in this agreement shall be construed as an attempt to assign any
contract which by its terms or by law is not assignable without a third
party consent unless such consent has been given.
12. EMPLOYEES
12.1 ASSUMPTION
Seller and Buyer agree that, pursuant to collective labour agreement No. 32
bis, (in respect of those Assumed Employees to which this collective labour
agreement in Belgium relates) and in respect of all other Assumed Employees
pursuant (but subject) to any other applicable Legal Requirement (including
in France article L. 122-12 of the French Employment Code), the contracts
of employment between Seller and the Assumed Employees will have effect
after Completion as if made between the Buyer and the Assumed Employees,
and the Buyer shall assume and hereby agrees to take over at Completion all
of the Assumed Employees, subject to the conditions of this clause 12 and
all applicable Legal Requirements. The Buyer shall not be obligated to
offer employment to any person other than the Assumed Employees unless
otherwise required by law.
12.2 CONSULTATION
Seller and Buyer shall consult and co-operate to comply with the relevant
Legal Requirements regarding the giving of notice to the Assumed Employees.
12.3 INDEMNITY
The Seller shall indemnify the Buyer against all losses and costs arising
out of or in connection with:
(a) any failure by the Seller to comply with its duties under any Legal
Requirement including the transfer of undertaking, rules and/or
failure by the Seller to comply with any other Legal Requirement duty
or obligation to any Assumed Employee or to any trade union, employee
or appropriate representatives of any Assumed Employee;
(b) any threatened or actual action, claim or other legal recourse by any
Assumed Employees (whether in contract, in tort or otherwise) arising
prior to Completion; and
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(c) any threatened or actual action, claim or other legal recourse by
any person who is not an Assumed Employee or an employee to whom
Buyer is obligated by law of offer employment, relating to that
person's employment or previous employment with the Seller or the
Acquired Subsidiary or at the Alcatel Group.
12.4 APPORTIONMENT
The parties agree that all statutory contributions and all income tax
deductions for which the Seller is accountable, all employer's
contributions to the Seller's pension and insurance schemes to the
extent that they are not funded by the transferred pension assets
pursuant to Schedule 5 and all other employment costs and all
liabilities in relation to salaries and wages, employee bonus
entitlements that are due and payable as at Completion in respect of
Assumed Employees (a) will be borne by Seller in respect of the period
up to the Completion whether or not due for payment at such date, but
in any case excluding any amounts or rights owed or which may be owed
to Assumed Employees or which may have accrued thereto but with
respect to which such Assumed Employee is not eligible or which are
not vested as of the Completion, (b) in respect of the period after
the Completion will be borne by the Buyer, and (c) will if necessary
be apportioned on a time basis.
13. TAX
13.1 The provisions of Article 11 and Article 18, Section 3 of the Belgian
VAT-Code and the provisions of articles 210 and 215 of Schedule II of
the Xxxxxx Xxxxxxx Tax code shall apply to this Agreement, so that the
transfer of the MSB and Assets shall be exempted from VAT. Seller and
the Buyer shall prepare and deliver, at Completion, a document making
reference to the VAT-exempt nature of the transaction as maybe
applicable to the transactions contemplated by this agreement. In the
event that any Belgian, French or other VAT or any other Tax is
payable, all such payments shall be borne by the Buyer.
13.2 To the extent that in jurisdictions other than Belgium and France the
transfer of MSB, the Assets (or parts thereof) may give rise to VAT
being payable on such transfer, the Seller agrees with the Buyer that
it shall use its Best Efforts to assist the Buyer in obtaining any
allowable relief or exemption from VAT in any and all such
jurisdictions.
13.3 The Buyer will take care of payment of all taxes, including VAT
(subject to the provisions of clause 8.5) and relevant property
transfer tax, relating to the sale of Assets and Goodwill pursuant to
this Agreement, and Buyer's Guarantor shall hold harmless Seller's
Guarantor and Seller against any and all loss, liability, costs and
expenses arising as a result of such taxes and VAT.
14. WARRANTIES AND INDEMNITY
14.1 The Seller and the Seller's Guarantor warrant with the Buyer in the
terms of the Warranties. The Warranties shall be deemed to have been
repeated immediately prior to Completion by reference to the facts and
circumstances then subsisting.
14.2 Any information supplied by any Assumed Employee to the Seller or its
agents or accountants, solicitors or other advisers in connection with
the Warranties, the disclosures to the Warranties or otherwise in
relation to MSB and the Assets shall not constitute a representation
or warranty or guarantee as to the accuracy thereof by such Assumed
Employee or other such persons and the Seller undertakes to the Buyer
and each such Assumed Employee and other such persons that it will not
bring (other than in circumstances of fraud or wilful concealment on
the part of that Assumed Employee or such person) any and all claims
which it might otherwise have against such Assumed Employee or other
such persons in respect thereof.
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14.3 Each of the Warranties shall be construed as a separate warranty, and
(unless expressly provided to the contrary) shall not be limited by
the terms of any of the other Warranties or by any other term of this
agreement.
14.4 The liability of the Seller under the Warranties shall be limited if
and to the extent that the limitations referred to in schedule 3
apply.
14.5 The Buyer warrants to the Seller that, as at the Completion Date, it
will have funding sufficient to satisfy the Purchase Price.
14.6 Seller agrees to indemnify Buyer in the terms set out in Schedule 9
provided that the maximum liability of the Seller in respect of such
indemnity shall not exceed the caps indicated in said Schedule 9.
14.7 Without prejudice to any claim or remedy that the Buyer or Buyer's
Guarantor may have for a Breach of Warranty pursuant to this Agreement
Buyer and Buyer's Guarantor hereby acknowledge that the
representations and warranties made by Seller's Guarantor and Seller
in schedule 2, are made on the basis of similar representations and
warranties made by Alcatel and Seller pursuant to Section 3 of the SPA
and the Seller's Guarantor warrants that, to the Best of its Knowledge
there has been no Breach of the representations and warranties set
forth in section 3 of the SPA.
15. NON-COMPETE COVENANT AND PROTECTION OF GOODWILL
15.1 For a period of two (2) years after Completion neither the Seller's
Guarantor nor the Seller shall carry out or be engaged in or control
(on its own behalf as well as on behalf of its Related Persons for
whom it shall be responsible for so long as they remain Related
Persons) a business competing with MSB. A "business competing with
MSB" shall mean the substitution or an attempt to substitute, by pin
and function compatible devices, the MSB Products under development
pursuant to a customer contract or in volume production as of 14 April
2002 with any customer of MSB at Completion other than Hewlett
Packard.
15.2 For a period of two (2) years after the date of this agreement the
Seller and the Buyer are prohibited (on their own behalf as well as on
behalf of their respective Related Persons for so long as they remain
Related Persons) from directly soliciting or encouraging the managers,
executives or salaried employees of MSB and the Company, respectively,
to leave their present and future functions within the MSB and the
Company, respectively, or from recruiting directly or indirectly such
managers, executives or salaried employees (except for those who
answer a public advertisement, or those who are approached when they
are no longer employed by MSB and the Company).
16. CONFIDENTIAL INFORMATION
16.1 (a) The Seller (in respect of the MSB Confidential Information) and
the Buyer (in respect of the Non MSB Confidential Information)
are prohibited on their own respective behalf (as well as on
behalf of their Related Persons or of their managers, salaried
employees or representatives for which the Seller's Guarantor is
responsible) and without limitation in time, to disclose to any
person or entity in the case of the Seller, the MSB Confidential
Information and in the case of the Buyer, the Non MSB
Confidential Information.
(b) The Seller agrees that neither it nor any of its Related Persons
(or any of their managers, salaried employees or representatives)
shall disclose or use any MSB Confidential Information other than
for the purpose of complying with its obligations under this
Agreement and that all MSB Confidential Information shall be
destroyed on or before the third anniversary of the date of this
Agreement.
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(c) The Buyer agrees that neither it nor any of its Related Persons (or
any of their managers, salaried employees or representatives) shall
disclose or use any Non MSB Confidential Information other than for
the purpose of complying with its obligations under this Agreement and
that all Non MSB Confidential Information shall be destroyed on or
before the third anniversary of the date of this Agreement.
16.2 Notwithstanding clause 16.1, the Seller and the Buyer may disclose such
confidential information:
(a) if and to the extent required by the law of any relevant jurisdiction;
(b) if and to the extent required by any governmental body;
(c) if and to the extent required for the purposes of any arbitration
pursuant to clause 27;
(d) to its professional advisers and auditors;
(e) if and to the extent that the Buyer has given prior written consent to
the disclosure;
(f) if and to the extent it is in the public domain other than by the
Seller's breach of clause 16.1;
(g) to the providers or prospective providers of equity or debt finance to
the Buyer or any member of the Buyer's Group or their Representatives;
or
(h) to a proposed purchaser of MSB, the Buyer or any member of the Buyer's
Group.
17. ANNOUNCEMENTS
Any public announcement or similar publicity with respect to this agreement
or the Transaction Documents shall be issued, if at all, at such time and
in such manner as Buyer and the Seller's Guarantor mutually determine and
agree upon. Unless consented to by both Parties or as required by Legal
Requirements, prior to Completion the Parties shall refrain from making any
disclosure of this agreement and the Transaction Documents to any person
other than the respective Representatives (which shall include
representatives of the Seller), the persons to whose such disclosure is
required pursuant to the Legal Requirements or to the providers or
prospective providers of equity or debt finance to the Buyer or any member
of the Buyer's Group or their Representatives. Buyer and the Seller's
Guarantor shall consult with each other concerning the means by which MSB's
customers and suppliers and others having dealings with MSB shall be
informed of the Contemplated Transactions.
This clause does not apply to announcements, communications or circulars
made or sent by the Buyer or by the Seller (including any sent jointly with
the Seller pursuant to clause 8.1) after Completion to customers, clients
or suppliers of the Seller and its other business contacts to the extent
that it informs them of the Buyer's acquisition of the Assets and MSB or to
any announcements containing only information which has become generally
available.
18. ASSIGNMENT
18.1 The Parties acknowledge that this agreement is an intuitu personae
agreement and that it has been entered into for the sole benefit of the
Parties and does not give rise to any rights in favour of any other
individual or entity other than the Parties to this agreement.
18.2 The Buyer may (without the consent of the Seller) assign the benefit of all
or any of the Seller's obligations or any benefit it enjoys under this
agreement (i) to any member of the Buyer's Group; provided however that
such assignment shall not be absolute but shall be expressed to have effect
only for so long as the assignee remains a member of the Buyer's Group and
that immediately before ceasing to be a member of the Buyer's Group the
assignee shall assign the benefit to a member of the
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Buyer's Group or (ii) to any person who has provided finance to the Buyer
or any member of the Buyer's Group. The Buyer's Guarantor shall however
remain jointly and severally liable with any assignee of the Buyer named in
(i) or (ii), with respect to such assignee's rights and obligations
hereunder.
The sale or transfer of all or part of MSB or the Assets shall not affect
the liability of the Seller under any provision of this agreement
whatsoever, except as, and the extent expressly provided in the Agreement
hereto.
18.3 The Buyer may disclose to a proposed assignee or acquirer of the Buyer
information in its possession relating to the provisions of this agreement,
the negotiations relating to this agreement, the subject matter of this
agreement and the other party which it is necessary to disclose for the
purposes of the proposed assignment, notwithstanding the provisions of
clause 16. Further, upon the Buyer entering into an agreement with a third
party for the sale of all or part of MSB or the Assets or Buyer or any
member of the Buyer's Group, the Seller shall not unreasonably withhold any
written consent or assignment required by the Buyer to effect such sale
provided such consent shall in all events be subject to the terms and
conditions of this Agreement, as well as to all the provisions of the
Transaction Documents attached hereto.
19. COSTS
Unless expressly otherwise provided in this agreement each of the parties
shall bear its own legal, accountancy and other costs, charges and expenses
connected with the sale and purchase of the Assets and MSB.
20. EFFECT OF COMPLETION
20.1 The articles of this Agreement shall continue in force after and
notwithstanding Completion.
20.2 The remedies of the Buyer and the Seller in respect of any breach of any
of the Warranties shall continue to subsist notwithstanding Completion,
subject to and in accordance with the terms of this Agreement.
21. ENTIRE AGREEMENT
21.1 This agreement supersedes all prior agreements between the Parties with
respect to its subject matter and constitutes (along with the documents
referred to in this agreement a complete and exclusive statement of the
terms of the agreement between the Parties with respect to its subject
matter. This agreement may not be amended except by a written agreement
executed by the Parties.
21.2 Each party on behalf of itself and as agent for each of its Related
Persons acknowledges and agrees with the other party (each such party
acting on behalf of itself and as agent for each of its Related Persons)
that neither it nor any of its Related Persons has been induced to enter
into any Transaction Document in reliance upon, nor has any such party
been given, any warranty, representation, statement, assurance, covenant,
agreement, undertaking, indemnity or commitment of any nature whatsoever
other than as are expressly set out in the Transaction Documents or as
included in the Offering Memorandum or the Data Room material made
available by Alcatel and, to the extent that any of them has been, it
(acting on behalf of itself and as agent on behalf of each of its Related
Persons) unconditionally and irrevocably waives any claims, rights or
remedies which any of them might otherwise have had in relation thereto;
PROVIDED THAT the provisions of this clause 21 shall not exclude any
liability which any of the parties or, where appropriate, their Related
Persons would otherwise have to any other party or, where appropriate, to
any other party's Related Persons or any right which any of them may have
in respect
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of any statements made fraudulently by any of them prior to the execution
of this agreement or any rights which any of them may have in respect of
fraudulent concealment by any of them.
22. WAIVER
22.1 A waiver of any term, provision or condition of, or consent granted under,
this agreement shall be effective only if given in writing and signed by
the waiving or consenting party and then only in the instance and for the
purpose for which it is given.
22.2 Neither the failure nor any delay by any Party in exercising any right,
power or privilege under this agreement or the documents referred to in
this agreement shall operate as a waiver of such right, power or
privilege, and no single or partial exercise of any such right, power or
privilege shall preclude any other or further exercise of such right,
power or privilege or the exercise of any other right, power or privilege.
22.3 The rights and remedies herein provided are cumulative with and not
exclusive of any rights or remedies provided by law.
23. INVALIDITY
If any provision of this agreement is held invalid or unenforceable by any
court of competent jurisdiction, the other provisions of this agreement
shall remain in full force and effect. Any provision of this agreement
held invalid or unenforceable only in part or degree shall remain in full
force and effect to the extent not held invalid or unenforceable.
24. NOTICES
24.1 Any notice, demand or other communication given or made under or in
connection with the matters contemplated by this agreement shall be in
writing and shall be delivered personally or sent by fax or post (air mail
if posted to or from a place outside the country of residence of the
destinee):
In the case of the Buyer and the Buyer's Guarantor to:
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
XXX
Fax: 000 000 000 0000
Attention: President and CEO
In the case of the Seller to such address as the Seller's Guarantor shall
notify the Buyer of in writing or as set forth in the Deed of Adherence
and the Seller's Guarantor to:
Ronte de Pre-Bois
20 ICC Bloc A
1215 Xxxxxx 00
Xxxxxxxxxxx
Fax: x00 00 000 0000
Attention: General Counsel
and shall be deemed to have been duly given or made as follows:
(a) If personally delivered, upon delivery at the address of the relevant
party;
(b) if sent by post, two Business Days after the date of posting;
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(c) if sent by air mail, three Business Days after the date of posting;
and
(d) if sent by fax, when despatched;
provided that if, in accordance with the above provisions, any such
notice, demand or other communication would otherwise be deemed to be
given or made after 5:00 p.m. on a Business Day such notice, demand or
other communication shall be deemed to be given or made at 9.00 a.m. on
the next Business Day.
24.2 A party may notify the other party to this agreement of a change to its
name, relevant addressee, address or fax number for the purpose of clause
24.1 provided that such notification shall only be effective on:
(a) the date specified in the notification as the date on which the
change is to take place; or
(b) if no date is specified or the date specified is less than five
Business Days after the date on which notice is given, the date
falling five Business Days after notice of any such change has been
given.
25. ORIGINALS
This agreement shall be executed in a number equal to the number of
parties. This agreement shall not take effect until it has been executed
by the Buyer, the Buyer's Guarantor and the Seller's Guarantor.
26. GOVERNING LAW AND JURISDICTION
26.1 This agreement (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this agreement or
its formation) shall be governed by and construed in accordance with
French law. It is expressly agreed that articles L141-1 to 143-23 of the
French Commercial Code relating to the sale of a business are excluded. In
addition, mandatory provisions of Belgium law shall apply to this
Agreement.
26.2 Any dispute or claim arising out of or in connection with this agreement
shall be finally settled by arbitration, in accordance with the Rules of
the International Chamber of Commerce ("ICC") then in force (the "Rules")
and the Parties hereby agree to be bound by such Rules.
26.3 Unless the parties agree upon the appointment of a sole arbitrator, the
arbitral tribunal shall be composed of three arbitrators, of which one
shall be appointed by the Buyer, the one shall be appointed by the Seller
and the third, who shall also be the chairman of the tribunal, appointed
by the other two arbitrators or, if they are unable to agree, in
accordance with the Rules.
26.4 The arbitration proceedings shall be conducted in the English language in
Paris, France. The award shall be rendered in English. Documents and
briefs exchanged between the Parties, witness auditions shall be
submitted, in the English language. The exhibits shall however be
submitted in their original language.
26.5 The arbitral tribunal, when adequately informed of the issues of the
dispute, shall establish its terms of reference describing such issues.
26.6 The arbitral tribunal shall render its award within six months after
acceptance of its appointment by the third arbitrator. This delay may be
extended by mutual agreement of the parties, or by the Court of
Arbitration of the ICC at the request of one of the Parties, or of the
arbitral tribunal.
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26.7 The award shall be final and binding on the parties who hereby waive
their right to any form of appeal or recourse, insofar as such waiver
can validly be made.
26.8 The arbitral tribunal shall fix the costs of the arbitration,
including arbitrators' fees and expenses, and shall decide which of
the parties shall bear all or a portion of these costs as well as
other costs incurred by the parties, including costs of experts or
witnesses and reasonable attorneys' fees.
26.9 Except for conservatory measures, none of the Parties shall be
entitled to commence or maintain any action in a court of law upon any
matter in dispute arising from or in relation to this Agreement except
for the enforcement of an arbitral award granted pursuant to this
clause. During the period of submission to arbitration and thereafter
until the granting of the arbitral award, the parties shall, except in
the event of termination, continue to perform all their obligations
under this agreement without prejudice to a final adjustment in
accordance with said award.
26.10 No Party nor the arbitrators may disclose the existence, content or
results of any arbitration hereunder without the prior written Consent
of the other parties, except to the extent required for the proper
organization of the arbitration or the enforcement of the resulting
award. The provisions contained in this clause shall survive
termination and/or expiration of this agreement.
27. SELLER'S GUARANTEE
27.1 In consideration of the Buyer entering into this agreement the
Seller's Guarantor gives in favour of the Buyer's Guarantor and the
Buyer exclusively the guarantee in the terms set out in schedule 7.
27.2 The Seller's Guarantor warrants to the Buyer's Guarantor and the Buyer
in the terms of paragraphs 2 (Organisation) and 3 (Authorisations and
Proper Execution) of schedule 2, Part A both at the date of this
agreement and immediately prior to Completion save that references in
paragraph 2 and 3 to the Seller shall be replaced by appropriate
references to the Seller's Guarantor.
27.3 The Seller's Guarantor undertakes to procure that, as soon as
reasonably practical, and in any case forthwith after completion of
the Alcatel Agreement, the Seller will execute this agreement.
27.4 The Seller's Guarantor agrees that, until the Seller enters into this
agreement pursuant to clause 27.3 above, the Seller's Guarantor will
be liable as primary obligor (solidairement) for all obligations of
the Seller under this agreement.
28. BUYER'S GUARANTEE
28.1 In consideration of the Seller entering into this agreement the
Buyer's Guarantor gives in favour of the Seller exclusively the
guarantee in the terms set out in schedule 8.
28.2 The Buyers Guarantor warrants to the Seller in the terms of paragraphs
2 (Organsation) and 3 (Authorisations and Proper Execution) of
schedule 2, Part A both at the date of this agreement and immediately
prior to Completion save that references in paragraph 2 and 3 to the
Buyer shall be replaced by appropriate references to the Buyer's
Guarantor.
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29. FOREIGN EQUIVALENCY
Any reference in this agreement or any of the Transaction Documents to any
statue, statutory instrument, regulation, by-law or other requirement of
French or Belgian law and to any French or Belgian legal term for any
action, remedy, method of judicial proceeding, legal document, legal
status, procedure, court, official or any legal concept or doctrine or
other expression shall in respect of any jurisdiction other than France or
Belgium be deemed to include that which most nearly approximates in that
jurisdiction to the French or Belgian term (in the context in which that
term is used in this Agreement on the Transaction Documents).
IN WITNESS whereof this agreement has been executed on the date first above
written.
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/s/ XXXXXXXXX XXXX
Executed as a deed by AMI SEMI CONDUCTOR BELGIUM BVPA represented by Xxxxxxxxx
XXXX for herself as a director and on behalf of the founding shareholders AMI
Semiconductor, Inc. and AMI Acquisition LLC.
/s/ XXXXXXXXX XXXX
Executed as a deed by AMI SEMI CONDUCTOR INC
/s/ XXXXX XXXXXXX
Executed as a deed by STMICROELECTRONICS NV
Represented by Xxxxx XXXXXXX, Corporate Vice President
Strategic Planning & Human Resources
