FIRST AMENDMENT AGREEMENT to the ASSET PURCHASE AGREEMENT by and between INFINEON TECHNOLOGIES AG as Seller and LANTIQ HOLDCO S.À R.L. (formerly WIRELINE HOLDING S.À R.L.) as Buyer dated as of 6 November 2009 Infineon Technologies AG Confidential
Exhibit 4.31.1
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
[Execution Copy]
FIRST AMENDMENT AGREEMENT
to the
by and between
as Seller
and
LANTIQ HOLDCO S.À X.X.
(formerly WIRELINE HOLDING S.À X.X.)
(formerly WIRELINE HOLDING S.À X.X.)
as Buyer
dated as of 6 November 2009
Infineon Technologies AG Confidential
TABLE OF CONTENTS
| Page | ||||||||
| 1. | Defined Terms; Terms of the Agreement | 1 | ||||||
| 1.1 | Defined Terms | 1 | ||||||
| 1.2 | Terms of the Agreement | 2 | ||||||
| 2. | Amendments to the Purchase Agreement | 2 | ||||||
| 2.1 | Amendments to the Preamble | 2 | ||||||
| 2.2 | Amendments to Section 1 | 2 | ||||||
| 2.3 | Amendments to Section 2 | 3 | ||||||
| 2.4 | Amendments to Section 5 | 8 | ||||||
| 2.5 | Amendments to Section 7 | 10 | ||||||
| 2.6 | Amendments to Section 9 | 11 | ||||||
| 2.7 | Amendments to Section 10 | 18 | ||||||
| 2.8 | Additional Schedules; Amendments to Existing Schedules | 18 | ||||||
| 2.9 | Additional Amendments | 20 | ||||||
| 3. | Additional Agreements and Acknowledgments | 26 | ||||||
| 4. | Miscellaneous | 30 | ||||||
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Schedules: |
||
Schedule 2.1(a)
|
Purchased Contracts (New Version) | |
Schedule 2.1(g)
|
New License Agreements Required | |
Schedule 2.1(g)(iv)
|
Allocation of Payments under Licenses used by Buyer | |
Schedule 2.1(g)(v)
|
Assignment Allocations | |
Schedule 2.7
|
Acquisition Structure (New Version) | |
Schedule 2.9(a)(ii)
|
Lease Reimbursements | |
Schedule 2.9(b)(iv)-(1)
|
Shanghai Temporary Sublease | |
Schedule 5.10
|
Subsidies (New Version) | |
Schedule 9.6
|
Certain Employees of Seller | |
Schedule 9.12(a)
|
French Assets | |
Schedule 9.12(b)-1
|
Certain French Employees of Seller | |
Schedule 9.12(b)-2
|
Form of Tripartite Agreement for French Employees | |
Schedule 3(d)
|
Certain Discontinued Distributors | |
Schedule 2.9(c)(ii)
|
Employee lease agreement for [**] | |
Exhibits: |
||
Exhibit O
|
Interim Supply Agreement | |
Exhibit P
|
Three Party Agreement with Continued Distributors | |
Exhibit Q
|
Transitional Logistics Service Agreement for the Distribution Centre in Singapore | |
Exhibit R
|
Transitional Logistics Service Agreement for Forwarding, Logistics and Transport Services | |
Exhibits S-1 - S-4
|
Sales Agency and Service Agreements | |
Exhibit T
|
Accounting Services Agreement | |
Exhibit U
|
Mutual Research and Development Agreement |
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FIRST AMENDMENT AGREEMENT TO THE
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT
THIS AMENDMENT AGREEMENT TO THE ASSET PURCHASE AGREEMENT DATED JULY 7, 2009 (“Amendment
Agreement”) is made as of November 6, 2009 by and between INFINEON TECHNOLOGIES AG, a stock
corporation (Aktiengesellschaft) under the laws of the Federal Republic of Germany, with principal
place of business at Xx Xxxxxxx 0-00, 00000 Xxxxxxxxx, Xxxxxxx, registered with the commercial
register (Handelsregister) of the lower court (Amtsgericht) of Munich under HRB 126492
(“Seller”), and Lantiq HoldCo S.à x.x. (formerly Wireline Holding S.à x.x.), a company
incorporated as a société à responsabilité limitée, existing under the laws of the Grand Duchy of
Luxembourg, having its registered office at 000X, Xxxxx x’Xxxx, X-0000 Xxxxxxxxxx, Grand Duchy of
Luxembourg, registered with the Luxembourg Trade and Companies’ register under Section B 147045
(“Buyer”).
RECITALS
A. WHEREAS, Seller and Buyer have entered into that certain Asset Purchase Agreement dated
July 7, 2009 (“Purchase Agreement”) concerning the sale of certain assets and liabilities
pertaining to the Wireline Communication Business;
B. WHEREAS, Seller and Buyer intend to amend certain provisions of the Purchase Agreement in
order to facilitate the consummation of the Purchase Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms; Terms of the Agreement
1.1 Defined Terms
Capitalized terms in this Amendment Agreement shall have the same meaning as in the Purchase
Agreement unless they are expressly defined otherwise in this Amendment Agreement.
Infineon Technologies AG Confidential
1.2 Terms of the Agreement
Unless expressly amended or repealed in this Amendment Agreement, all terms of the Purchase
Agreement shall remain in full force and effect.
2. Amendments to the Purchase Agreement
2.1 Amendments to the Preamble
The Interim Supply Agreement, each Three Party Agreement with Continued Distributors, the
Transitional Logistics Service Agreement for the Distribution Centre in Singapore, the Transitional
Logistics Service Agreement for Forwarding, Logistics and Transport Services, each Sales Agency and
Service Agreement, the Accounting Services Agreement and the Mutual Research and Development
Agreement shall be added as Collateral Agreements in Recital E of the Preamble.
2.2 Amendments to Section 1
The following words and phrases shall be added to Section 1.1:
“Accounting Services Agreement” means the agreement in substantially the form set
forth as Exhibit T.
“Die-Bank Transfer Date” means the first Business Day following the day on which the
Die-Bank Transfer Time occurred.
“Die-Bank Transfer Time” means 11.59 pm CET on the last Business Day of the calendar
month in which Seller and Buyer have notified each other that their respective IT systems have
been adjusted (the “Completed Adjustment”) to support the processes described in the Wafer
Supply and Service Agreement and the Transitional Assembly and Test Service Agreement (it being
understood that each of Buyer and Seller shall use diligent good faith efforts to cause the
Completed Adjustment to occur as promptly as reasonably practicable).
“Interim Supply Agreement” means the agreement in substantially the form set forth as
Exhibit O.
“Mutual Research and Development Agreement” means the agreement in substantially the
form set forth as Exhibit U.
“Sales Agency and Service Agreement” means the agreements in substantially the form
set forth as Exhibits S-1 through
S-4.
S-4.
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“Three Party Agreement with Continued Distributors” means the agreement in
substantially the form set forth as Exhibit P.
“Transitional Logistics Service Agreement for the Distribution Centre in Singapore”
means the agreement in substantially the form set forth as Exhibit Q.
“Transitional Logistics Service Agreement for Forwarding, Logistics and Transport
Services” means the agreement in substantially the form set forth as Exhibit R.
2.3 Amendments to Section 2
(a) After Section 2.1(g)(iii) of the Purchase Agreement the following new Section
2.1(g)(iv) and the following new Section 2.1(g)(v) shall be inserted:
“(iv) Subject to the approval of the respective licensor or other contract partner (each an
“Existing Licensor”), Seller shall grant Buyer the right to use Seller’s existing licenses,
sublicenses or benefits from maintenance services which are listed on Schedule 2.1(g)(iv)
(each an “Existing License”) after the Closing Date for the time period for which the
respective Existing Licensor agreed with the use of the respective Existing License by Buyer (each
such time period a “Grace Period”). Buyer shall reimburse Seller or Seller’s Affiliates for
any payments rendered by Seller or Seller’s Affiliates to the respective Existing Licensors, in
each case as allocated to Buyer in Schedule 2.1(g)(iv), upon an invoice having been issued
by Seller. Buyer’s obligation to reimburse Seller shall exist irrespective of the actual use and
the volumes of the respective Existing License by Buyer until the earlier of (i) the end of the
respective Grace Period, or (ii) the effective starting date of a new license agreement between
Buyer and the respective Existing Licensor regarding the subject-matter of the respective Existing
License or an assignment pursuant to Section 2.1(g)(v), it being understood that, prior to
the expiration of a Grace Period, a new license agreement covering any time within the applicable
Grace Period may only be entered into between Buyer and any Existing Licensor if either (x) Buyer
contractually agrees to continue to reimburse Seller or Seller’s Affiliates for the payments
allocated to Buyer during the Grace Period to Buyer as set forth on Schedule 2.1(g)(iv), or
(y) if Seller or Seller’s Affiliates are discharged from their payment obligations towards the
respective Existing Licensor for the remainder of the Grace Period in an amount which corresponds
to the amount allocated to Buyer in Schedule 2.1(g)(v) in which case Buyer shall reimburse
Seller to the extent Seller or Seller’s Affiliate is not actually discharged. It is expressly
understood that the arrangements set forth in this Section 2.1(g)(iv) shall in [**] with
respect to New License Agreements entered into at any time in connection with the expiration or
termination of such rights to use the Existing Licenses. It is further understood that nothing in
this Section 2.1(g)(iv) is meant to release Buyer from its obligations pursuant to
Section 2.1(g)(v).
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(v)
(x) To the extent the underlying Existing License either provides for a right of Seller to
assign a portion of the licenses under the Existing License to a third party or the Existing
Licensor agrees to grant Seller such a corresponding right, Buyer shall upon notice by Seller be
obliged to agree to an assignment of such volumes of the licenses under the Existing License which
are specified in Schedule 2.1(g)(v) (the “Specific Volumes”) for the remaining term
of the respective Existing License; this shall apply even if the non-volume terms and conditions of
the license agreement to be entered into between Buyer and the respective Existing Licensor for the
Specific Volumes are less favourable to Buyer than the existing license agreement between Seller
and the Existing Licensor; provided further however that Seller shall use Reasonable Commercial
Efforts to cause such assignment to occur on substantially the same non-volume terms and conditions
that are applicable to Seller under the Existing License for the remainder of the duration of the
Existing License (it being understood that neither Seller nor Buyer shall actively seek or propose
a duration which is longer than the remainder of the duration of the Existing License). Buyer shall
lead the negotiations of the license agreement to be entered into between Buyer and the respective
Existing Licensor in cooperation with Seller and shall inform Seller regularly on the progress of
the negotiations and on all developments in connection therewith which may affect Seller’s
interests. If the Existing Licensor has not yet agreed to the assignment of the respective Specific
Volume or the Specific Volume has not yet been assigned to Buyer without the consent of the
Existing Licensor being required, in each case until the expiry of the time periods set forth in
the following lit. (i), (ii) and (iii), the following shall apply: (i) If the Grace Period of an
Existing License is 3 months or shorter Buyer shall be entitled to enter into negotiations with the
respective Licensor on the conclusion of a new license with such Existing Licensor two weeks prior
to the end of the applicable Grace Period; (ii) if the Grace Period of an Existing License is
longer than 3 months but 6 months or shorter Buyer shall be entitled to enter into negotiations
with the respective Licensor on the conclusion of a new license with such Existing Licensor four
weeks prior to the end of the applicable Grace Period; (iii) if the Grace Period of an Existing
License longer than 6 months Buyer shall be entitled to enter into negotiations with the respective
Licensor on the conclusion of a new license with such Existing Licensor eight weeks prior to the
end of the applicable Grace Period. In the events of (i), (ii) and (iii) Buyer shall only be
entitled to actually enter into the new license agreement with effect as of a date at which the
respective Grace Period has expired in which case the obligations and provisions set forth in this
Section 2.1(g)(v) shall no longer apply with respect to the corresponding Specific Volume
applicable to the respective Existing Licensor; it being understood that Buyer shall not induce or
otherwise cause the respective Existing Licensor not to agree to an assignment of the Existing
License and Buyer and Seller shall within the Grace Period cooperate in good faith to achieve an
assignment of the Specific Volume
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instead of Buyer entering into a new license, e.g. by extending the Grace Period of the Existing
License.
(y) If an Existing Licensor requests payment of a higher price than specified in Schedule
2.1(g)(v) column “LTQ annual costs in USD for equivalent license volum2” (“Column C”),
Buyer shall be obliged to agree to the assignment of the relevant Specific Volume and any amounts
exceeding the respective amounts set forth in Column C shall be borne and paid (or promptly
reimbursed to Buyer) by Seller. For the avoidance of doubts: The Contract Replacement Fee shall
include any one-time fee charged by a Third Party for the purpose of obtaining an assignment
contemplated by this Section 2.1(g); Section 2.1(g)(iii) sentence 2 applies accordingly to
any one-time fee. In the event that a Specific Volume under an Existing License is assigned to
Buyer in accordance with this Section 2.1(g)(v) and Buyer in its sole discretion decides to
purchase additional licenses beyond those set forth in Schedule 2.1(g)(v) or additional
features to Existing Licenses which licenses are set forth in Schedule 2.1(g)(v), any
excess costs associated with such purchase by Buyer shall be excluded from any Contract Replacement
Fee and from the obligation of Seller to pay any amounts exceeding the limit pursuant to sentence 1
of this para. (y).”
(z) For a period of three weeks following the Closing Date, Buyer and Seller shall use
Reasonable Commercial Efforts to achieve a solution with the Existing Licensor “Cadence” which
provides for an assignment of the respective parts of the license to the extent used by Lantiq
during the applicable grace period to Buyer and is mutually acceptable for both parties, it being
understood that Buyer shall not induce or otherwise cause Cadence not to agree to an assignment of
the Existing License and Buyer and Seller shall cooperate in good faith to achieve an assignment of
the Existing License instead of Buyer entering into a new license after the expiry of the three
weeks period until it becomes reasonably apparent that such assignment cannot be achieved in a
timely manner.
(b) Section 2.2(a)(ii) of the Purchase Agreement shall be deleted and be replaced by
the following paragraph:
“(ii) all finished goods of the Wireline Communications Business, including those located in
Seller’s or its Subsidiaries’ distribution centers or in consignment stock locations of Seller’s or
its Subsidiaries’ customers or in backend production facilities (if any), to the extent such
finished goods exist on the Closing Date, pertain primarily to the Wireline Communications Business
and are owned by Seller or a Subsidiary or to which Seller or a Subsidiary has a claim
(Anwartschaftsrecht) on the Closing Date (collectively, the “Purchased Inventory”).
The pre-processed wafers located in Seller’s or its Subsidiaries’ die-banks (or die-banks of
Seller’s or its Subsidiaries’ suppliers), in Seller’s, its Subsidiaries’ or its
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suppliers’ or sub-contractors’ backend production facilities or in consignment at Seller’s or its
Subsidiaries’ backend suppliers and/or sub-contractors, in each case to the extent such
pre-processed wafers exist on the Closing Date and pertain primarily to the Wireline Communications
Business (collectively, the “Pre-Processed Wafers”), shall not constitute Purchased Assets,
but shall remain in Seller’s ownership and possession after the Closing Date. Seller shall be
obliged to further process the Pre-Processed Wafers in its or its suppliers’ or sub-contractors’
backend production facilities for Buyer in accordance with the terms and conditions of the Interim
Supply Agreement. The portion of the Estimated Inventory Value and the Purchased Inventory Value
relating to the Pre-Processed Wafers not constituting Excluded Inventory pursuant to Section
2.5(h) shall be treated as a Pre-Payment (as such term is defined in Section 6.3 of the
Interim Supply Agreement) and shall be credited against the prices for the products to be sold and
transferred by Seller to Purchaser pursuant to the Interim Supply Agreement in accordance with the
terms thereof.”
(c) The definition of “Estimated Inventory Value” in Section 2.5(b)(iv) of the
Purchase Agreement shall be deleted and be replaced by the following definition:
“(iv) Estimated Inventory Value” shall mean the net book value of the Purchased
Inventory and the Pre-Processed Wafers as of the Closing Date and as estimated by Seller in
accordance with Section 2.5(d), provided, that the value of those Pre-Processed Wafers
which are located in Seller’s, Seller’s Subsidiaries or its suppliers’ or sub-contractors’ backend
production facilities or in consignment at Seller’s or its Subsidiaries’ backend suppliers and/or
sub-contractors on the Closing Date shall be determined as if the Pre-Processed Wafers were located
in Seller’s or its Subsidiaries’ die-banks on the Closing Date;”
(d) Subsection (F) of Section 2.5(b)(ii)(y) of the Purchase Agreement shall be deleted
in its entirety and the following new subsection (F) shall be added to Section
2.5(b)(ii)(y) and thereby become part of the defined term “Calculation Exclusions”:
“obligations with respect to employee inventions (which are, for the avoidance of doubt,
exclusively dealt with in Section 9.9);”
(e) The definition of “Target Liabilities Value” in Section 2.5(b)(iii) of the
Purchase Agreement shall be deleted and be replaced by the following definition:
“Target Liabilities Value” shall be an amount of €5,600,000 (in words: Five Million
Six Hundred Thousand Euros).”
(f) The definition of “Purchased Inventory Value” in Section 2.5(b)(v) of the
Purchase Agreement shall be deleted and be replaced by the following definition:
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“(v) “Purchased Inventory Value” shall mean the net book value of the Purchased
Inventory and the Pre-Processed Wafers as of the Closing Date, in each case as determined in
accordance with the terms and conditions of this Agreement;”
(g) Section 2.5(h) of the Purchase Agreement shall be deleted and be replaced by the
following paragraph:
“(h) Excluded Inventory. If and to the extent, pursuant to the determination made in
accordance with Section 2.5(f) regarding the Purchased Inventory Value or the Purchased
Inventory Value exceeds the Target Inventory Value, a portion of the Pre-Processed Wafers that
represents such excess (with the portion of such excess inventory that will constitute such excess
being determined with the approval of [**] or a designee of Buyer, and such inventory being
referred to herein as the “Excluded Inventory”) shall not form part of the Pre-Processed
Wafers. There shall be no obligation of Seller or any of its Subsidiaries to transfer Excluded
Inventory to Buyer. Such Excluded Inventory shall be retained by Seller and subsequently be
delivered and sold to Buyer or a Buyer Designee in accordance with the terms and conditions of the
Interim Supply Agreement, provided that Pre-Processed Wafers which have been paid as part of the
Purchase Price and other wafers that Buyer at the time of Closing has an obligation to accept (in
each case of the same product category) shall be delivered and sold to Buyer or a Buyer Designee
prior to the time any Pre-Processed Wafers of the same product category being part of the Excluded
Inventory are sold and delivered to Buyer under the Interim Supply Agreement. For the avoidance of
doubt, a Pre-Payment (as such term is defined in Section 6.3 of the Interim Supply
Agreement) for Pre-Processed Wafers which form part of the Excluded Inventory shall only be
credited in favor of Buyer when Buyer has made the advance payment for such wafers pursuant to
Section 6.3.1 of the Interim Supply Agreement.”
(h) In Sections 2.5(c)(ii) and 2.5(e)(i) of the Purchase Agreement “amount”
shall be deleted and replaced by “positive amount”.
(i) The details of Buyer’s Account in Section 2.5(j)(ii) of the Purchase Agreement shall be
deleted and replaced by the following:
| Correspondent Bank (Pay to): | [**] | |
| Swift Code: | [**] | |
| Beneficiary (For the account of): | [**] | |
| Swift Code: | [**] | |
| Account Number: | [**] | |
| Beneficiary Information (For credit to): | [**] | |
| Account Number: | [**] |
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(j) The following sentence shall be added to Section 2.7(a) of the Purchase
Agreement:
“Buyer hereby notifies Seller that each of the following legal entities shall constitute a
Buyer Designee: Lantiq Beteiligungs-GmbH & Co. KG; Lantiq Deutschland GmbH; Lantiq North America
Inc.; Lantiq A GmbH; Lantiq Latvia SIA; Lantech Communications Pvt. Ltd.; Lantiq Asia Pacific Pte.
Ltd.; Lantiq Taiwan Co. Ltd.; Lantiq Hong Kong Ltd. and Lantiq France SAS.”
2.4 Amendments to Section 5
(a) In Section 5.4(b)(vii) of the Purchase Agreement the reference to “Section 5.4(l)”
shall be deleted and be replaced by a reference to “Section 5.4(m)”.
(b) In Section 5.4(j) of the Purchase Agreement the references to “Section 5.4(a)(i)”
shall be deleted and be replaced, in each case, by a reference to “Section 5.4(a)(ii)”.
(c) Section 5.4(k) of the Purchase Agreement shall be deleted in its entirety and
shall be replaced by the following paragraph:
“(i) Subject to subsection (ii) below, Seller shall compensate Buyer for any variable
compensation payments paid by Buyer to any Transferred Employee with respect to the fiscal year
ending September 30, 2009 and for any Christmas bonus accrued up until the Closing Date; for the
avoidance of doubt, there shall be no obligation of Seller to compensate Buyer (neither in full nor
pro rata) for any variable compensation payments with respect to any fiscal year following the
fiscal year ending September 30, 2009. Buyer shall invoice Seller and the Seller Subsidiaries for
the respective amounts. The compensation to be paid in cash by Seller and the Subsidiaries shall
become due and payable in accordance with the payment methodologies set forth in Section
2.5(j) within five (5) Business Days upon receipt of the respective invoice. For the avoidance
of doubt, although the Seller shall use Reasonable Commercial Efforts to insure in each case that
such payments are made in five (5) Business Days, Buyer shall not charge interest to the other
party for the first five (5) Business Days following such deadline.
(ii) With regard to each of the US Transferred Employees, the Latvian Transferred Employees,
the French Employees, the Singapore Transferred Employees, the Indian Transferred Employees, the
Taiwanese Transferred Employees, the Chinese Transferred Employees and the Hong Kong Transferred
Employees, Seller and its respective Affiliates shall make the variable compensation payments with
respect to the fiscal year ending September 30, 2009 directly to the affected employees. There
shall be no compensation claim of Buyer or any Buyer Designees pursuant to Section
5.4(k)(i) with
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respect to the portion of the variable compensation claims of the aforementioned employees
that has actually been paid by Seller pursuant to the previous sentence.
(iii) The parties hereby clarify that Seller’s contractual arrangements, guidelines or
practices which provide the Transferred Employees with a thirteen- or fourteen-month salary
payment, including, in particular, so-called AWS schemes in Singapore, and those for Taiwan,
Hongkong and China (excluding the schemes applicable to German Transferred Employees, the Austrian
Transferred Employees and the French Employees), are not to be considered as Christmas bonuses
within the meaning of Sections 5.4(k) and 2.5(b)(ii)(y)(B) (definition of
Calculation Exclusions) and the respective accruals calculated as of the Closing Date shall be
included in the Purchased Liabilities Value.”
(d) Section 5.5 shall be deleted and be replaced by the following paragraph:
“5.5 Certain Collateral Agreements
Between the date hereof and the Closing Date Seller and Buyer shall in good faith negotiate
and finalize the negotiation of (i) each Transfer, Assignment and Assumption Agreement or
Assignment and Xxxx of Sale and Assumption Agreement (as well as the Schedules and Exhibits
pertaining thereto) for each relevant jurisdiction, (ii) the Lease Agreements for each of the Owned
Premises substantially in line with the term sheet attached as Exhibit C (as well
as the Schedules and Exhibits pertaining thereto), (iii) the Sublease Agreements for each of the
Leased Premises substantially in line with the term sheet attached as Exhibit C (as well as
the Schedules and Exhibits pertaining thereto), (iv) the IT Transitional Services Agreement
substantially in the form as attached as Exhibit E hereof (as well as the Schedules and
Exhibits pertaining thereto), (v) the Transitional Services Agreement for each relevant
jurisdiction which shall be substantially in line with the drafts attached as Exhibit F
hereof (as well as the Schedules and Exhibits pertaining thereto), (vi) the Interim Supply
Agreement in the form as attached as Exhibit O hereto (as well as the Schedules and
Exhibits pertaining thereto), (vii) the Three Party Agreement with Continued Distributors in the
form as attached as Exhibit P hereto (as well as the Schedules and Exhibits pertaining
thereto), (viii) the Transitional Logistics Service Agreement for the Distribution Centre in
Singapore in the form as attached as Exhibit Q hereto (as well as the Schedules and
Exhibits pertaining thereto), (ix) the Transitional Logistics Service Agreement for Forwarding,
Logistics and Transport Services in the form as attached as Exhibit R hereto (as well as
the Schedules and Exhibits pertaining thereto), (x) the Sales Agency and Service Agreement in the
form as attached as Exhibit S hereto (as well as the Schedules and Exhibits pertaining
thereto), (xi) the Accounting Services Agreement in the form as attached as Exhibit T
hereto (as well as the Schedules and Exhibits pertaining thereto), and (xii) the Mutual Research
and Development Agreement in the form as attached as Exhibit U hereto (as well as the
Schedules and Exhibits pertaining thereto).”
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(e) In Section 5.10(g) of the Purchase Agreement the reference to “Section 5.10(iv)
and (v)” shall be deleted and be replaced by a reference to “Section 5.10(e) and (f)”.
(f) Section 5.13 of the Purchase Agreement shall be deleted and be replaced by the
following paragraph:
“Starting as of the date that is two (2) weeks prior to the anticipated Closing Date, the
right to order products under the Interim Supply Agreement shall become effective.”
2.5 Amendments to Section 7
(a) The following sentence shall be added to Section 7.2(c) as a new last sentence:
“If an employment relationship with a new employee pertaining to the Wireline Communications
Business, for whom the consummation of the transactions contemplated by the Purchase Agreement
constitutes a transfer of undertaking pursuant to Sections 613a BGB or comparable provisions
regarding the transfer of undertakings in foreign jurisdictions, is entered into after the
notification in accordance with applicable Laws has been sent to the other respective Business
Employees, the Closing Condition pursuant to this Section 7.2(c) shall be deemed satisfied
even if the objection period for such new employee has not expired before the Closing Date.”
(b) Section 7.3(c) of the Purchase Agreement shall be deleted and be replaced by the
following paragraph:
“Seller and its Subsidiaries, as applicable, on the one hand, and Buyer and the Buyer
Designees, as applicable, on the other hand, shall enter into the Collateral Agreements;
provided, however, that (i) each of the Transitional Assembly and Test Service
Agreement and the Wafer Supply and Service Agreement shall be entered into under the condition
precedent (aufschiebende Bedingung) that the Die-Bank Transfer Date has occurred, and (ii) each
Three-Party Agreement with Distributors to be continued which will be governed by the Laws of the
Federal Republic of Germany shall be entered into on the first day after the Closing Date.”
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2.6 Amendments to Section 9
(a) In Section 9.1(b) of the Purchase Agreement after the words “(iii) in connection
with the preparation or auditing of financial statements” the words “(including
pro forma historical financial statements under US GAAP or IFRS beginning with the financial
year 2006/2007) or in connection with tax or similar audits” shall be added.
(b) In Section 9.3(a)(iv) of the Purchase Agreement the references to “Section
9(a)(ii)” and “Section 9(a)(iv)” shall be deleted and be replaced by a reference to “Section
9.3(a)(ii)” and “Section 9.3(a)(iv)” respectively.
(c) In Section 9.8(a) of the Purchase Agreement the words “subsection (iii)” shall be
deleted and be replaced by the words “subsection (c)”.
(d) Section 9.6 shall be deleted and be replaced by the following paragraph:
“9.6 Non Solicitation
For a period of two (2) years from the Closing Date, each of Seller and Buyer shall not, and
shall procure that their respective Affiliates will not, without the prior written consent of the
other party, directly or indirectly solicit or employ any employee of the other party or its
Affiliates; provided, however, that this shall not prohibit (i) the hiring of any employee who
responds to generalized searches for employees through media advertisements, employment firms or
otherwise that are not specifically targeted to employees of Seller, Buyer or the respective
Affiliates of Buyer or Seller, (ii) the hiring of any employee who initiated contact regarding such
employment, or (iii) the soliciting or hiring of any employee listed on Schedule 9.6.”
(e) Section 9.8(b) of the Purchase Agreement shall be deleted and be replaced by the
following paragraph:
“(b) With respect to the Wireline Distributors identified with an asterisk in Schedule
9.8 with which Buyer intends to continue a distributorship relationship, (i) Seller shall work
together with Buyer in good faith to conclude a separate agreement with such Wireline Distributor
on a standalone basis and on terms and conditions reasonably favorable to Buyer, and (ii) Buyer
shall work together with Seller in good faith to (y) terminate the portion of Seller’s
distributorship agreement for such Wireline Distributor related to the Wireline Communications
Business, in particular by entering on or after the Closing Date, as the case may be, into each
Three Party Agreement with Continued Distributors and (z) [**] related thereto.
(f) Section 9.9 of the Purchase Agreement shall be deleted and be replaced by the
following paragraphs:
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“9.9 Post-Closing German and Austrian Law Employee Invention
Payments
(a) Cost bearing for Inventions
(i) Seller and Buyer shall bear and pay in equal portions any Pre-Closing Remuneration paid
after the Closing for Inventions included within Purchased Intellectual Property to all Inventors
thereof (i.e., respective Inventors who become employees of Buyer or a Buyer Designee on Closing or
who remain employees of Seller or any of Seller’s Affiliates on Closing, and any other Inventors of
Inventions included within Purchased Intellectual Property, in respect of whom Seller, any of
Seller’s Affiliates, Buyer or Buyer Designee has any Inventor Remuneration obligation).
(ii) Seller and Buyer shall bear and pay in equal portions any Pre-Closing Remuneration paid
after the Closing for Inventions that are not included in the Purchased Intellectual Property to
the extent invented by Inventors who become employees of Buyer or a Buyer Designee at Closing; to
the extent that such Inventions are not included in the Purchased Intellectual Property and have
been invented by Inventors who do not become employees of Buyer or a Buyer Designee at Closing,
Seller shall bear and pay [**]% of the Pre-Closing Remuneration. For example, in the event one
Inventor becomes employed by Buyer at Closing and is responsible for [**]% of an applicable
Invention, then Buyer and Seller shall each bear [**]% of the Pre-Closing Remuneration payable to
such Inventor (and paid after the Closing) and Seller shall bear [**]% of the respective [**]% of
the Pre-Closing Remuneration payable to other Inventors.
(iii) Buyer shall bear and pay [**]% of the Post-Closing Remuneration paid after the Closing
for Inventions included within Purchased Intellectual Property to all Inventors (i.e., respective
Inventors who become employees of Buyer or a Buyer Designee at Closing or who remain employees of
Seller or any of Seller’s Affiliates at Closing, and any other Inventors of Inventions included
within Purchased Intellectual Property, in respect of whom Seller, any of Seller’s Affiliates,
Buyer or Buyer Designee has any respective Inventor Remuneration obligation); provided that Buyer
shall only bear and pay [**]% of, and Seller shall bear and pay [**]% of, any Post-Closing Lump Sum
Payments paid after the Closing for Inventions included within Purchased Intellectual Property to
Inventors who remain employees of Seller or any of Seller’s Affiliates at Closing.
(iv) Seller shall bear and pay any Post-Closing Remuneration paid after the Closing for
Inventions that are not included within Purchased Intellectual Property to all Inventors thereof
(regardless of by whom employed).
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(v) “Invention” shall mean any service invention (Diensterfindung), free invention
(freie Erfindung) or released invention (frei gewordene Erfindung) or technical improvement
proposal (technischer Verbesserungsvorschlag)
pursuant to the German Employee Invention Act (Arbeitnehmererfindergesetz) or a service
invention pursuant to the Austrian law for service inventions (Diensterfindungen).
“Inventor” shall mean any current or former employee of Seller or an Affiliate of Seller
who has made an Invention while serving as an employee of Seller or an Affiliate of Seller.
“Inventor Remuneration” shall mean any remuneration payments made to an Inventor pursuant
to remuneration obligations pursuant to the German Employee Invention Act or the Austrian law for
service inventions or, if an Invention had not been claimed (in Anspruch genommen) by Seller or
Seller’s Affiliates and is subsequently acquired by Seller, Buyer or any of their Affiliates,
pursuant to the underlying agreement on the transfer of the respective Invention from the Inventor
to the Seller, its Affiliates, Buyer or its Affiliates, in each case irrespective of whether such
payments are or become due prior to or after the Closing (for the avoidance of doubt, excluding any
expenses, overhead and other costs). “Pre-Closing Remuneration” shall mean any Inventor
Remuneration relating to the use of an Invention in the time period prior to the Closing, including
lump sum payments solely to the extent they relate to the use of the Invention in the time period
prior to the Closing and excluding Post-Closing Lump Sum Payments. “Post-Closing
Remuneration” shall mean any Inventor Remuneration relating to the use of an Invention in the
time period after the Closing, including lump sum payments to the extent they relate (i) to the
sale or transfer of the Purchased Intellectual Property by Seller or a Seller’s Affiliate to Buyer
or a Buyer Designee (excluding, for the avoidance of doubt, payments that relate to the use of the
Invention in the time period prior to the Closing) or (ii) to the use of an Invention within the
Purchased Intellectual Property in the time period after the Closing (such lump sum payments, the
“Post-Closing Lump Sum Payments”).
(vi) To the extent agreements on the Inventor Remuneration of respective Inventors for
Inventions made prior to the Closing have not been entered into between Seller or an Affiliate of
Seller and the respective Inventor prior to 16 October 2009, Seller or the relevant Affiliate of
Seller on one hand and Buyer or the relevant Buyer Designee on the other shall be entitled to enter
into such agreements with the respective Inventor only with the prior written approval of the other
Party; provided that such approval is not required if such agreement and any claim (in connection
with Inventions), either made by the respective Inventor or known to the party entering into the
agreement to exist for the respective Inventor, relates solely to issues for which such party
entering into the agreement bears all costs under this Section 9.9.
(b) Reimbursement Obligations
If and to the extent Seller or its Affiliates pays any Inventor Remuneration after the Closing
for Inventions to any Inventor for which not Seller but Buyer shall bear and pay (in whole or in
part) any Inventor Remuneration pursuant to this
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Section 9.9, Buyer shall reimburse Seller
for the amount for which not Seller (or its Affiliates) but Buyer (or its Affiliates) is
responsible pursuant to Section 9.9(a). If and to the extent Buyer
or its Affiliates pays any Inventor Remuneration after the Closing for Inventions to any
Inventor for which not Buyer but Seller shall bear and pay (in whole or in part) any Inventor
Remuneration pursuant to this Section 9.9, Seller shall reimburse Buyer for the amount for
which not Buyer (or its Affiliates) but Seller (or its Affiliates) is responsible pursuant to
Section 9.9(a). Reimbursements are due twenty (20) Business Days after receipt of an
invoice. For avoidance of doubt, Buyer and Buyer Designees shall not have any liability or
reimbursement obligation to Seller or any of its Affiliates for any Inventor Remuneration paid at
any time by Seller or any of its Affiliates prior to the Closing.
(c) Cooperation
(i) The Parties shall cooperate in good faith to minimize any cross-payments as set-offs
against each other where possible. The Parties shall use Reasonable Commercial Efforts to assist
each other in the administration of and defence against claims of Inventors which are subject of
this Section 9.9 and shall cooperate to keep Inventor Remuneration to Inventors to the
statutory minimum and to avoid or minimize, to the extent legally permissible, any lump sum
payments.
(ii) If Buyer or Seller intends to enter into an agreement on the Inventor Remuneration of an
Inventor or otherwise decides to make a payment related to Inventions to an Inventor (in each case
in an amount equal to less than EUR 8,000 with respect to a single payment to an Inventor (such
Euro threshold being referred to herein as the “Invention Threshold”)) and the other party
is — pursuant to this Section 9.9 — obliged to bear parts or all of such remuneration,
Buyer or Seller, as the case may be, (the “Offering Party”) shall inform the respective
other party (the “Other Party”) without undue delay in writing (e-mail suffices) about the
amount of such remuneration it deems adequate to be paid to the respective Inventor and provide the
respective underlying information forming the basis for this calculation. The Other Party shall,
within fifteen (15) Business Days, inform the Offering Party in writing (e-mail suffices) whether
it agrees with the proposed remuneration or whether it deems a different remuneration to be
adequate in which case it shall calculate and/or determine such different remuneration and add the
resulting calculation to the written notice to be sent to the Offering Party.
(w) If the Other Party proposes a lower Inventor Remuneration, the Offering Party shall offer
such lower Inventor Remuneration to the Inventor. If the Inventor then initiates proceedings in
front of the arbitral committee for employee inventors (Schiedsstelle nach dem Gesetz über
Arbeitnehmererfindungen) or any other competent body (including courts) to achieve a higher
Inventor Remuneration, the Other Party shall bear all costs of the Offering Party relating to the
determination of the
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adequate Inventor Remuneration, including, for the avoidance of doubt,
internal overhead costs of the Offering Party incurred in connection with the administration of the
proceedings
before the arbitral committee or the respective competent body at an hourly rate of EUR [**].
(x) If the Other Party proposes a higher Inventor Remuneration, the Offering Party shall have
the right to either offer such higher remuneration to the Inventor or to offer a lower Inventor
Remuneration than proposed by the Other Party. If (i) the Offering Party elects to offer a lower
Inventor Remuneration to the Inventor than proposed by the Other Party and (ii) the Inventor
initiates proceedings before the arbitral committee for employee inventors or any other competent
body to achieve a higher Inventor Remuneration, the Offering Party shall bear all costs of the
Other Party relating to the determination of the adequate Inventor Remuneration, including, for the
avoidance of doubt, internal overhead costs of the Other Party incurred in connection with the
administration of the proceedings before the arbitral committee or the respective competent body at
an hourly rate of EUR [**].
(y) If Buyer or Seller intends to enter into an agreement on the Inventor Remuneration of an
Inventor or otherwise decides to make a payment related to Inventions to an Inventor in cases where
Post-Closing Lump Sum Payments are involved, the Buyer shall always be the Offering Party. If an
Offering Party which is not the employer of an Inventor claiming Inventor Remuneration does not
inform the respective Other Party without undue delay of the amount of Inventor Remuneration it
deems adequate to be paid to the respective Inventor such Offering Party shall indemnify the Other
Party from any costs, losses and liabilities to the extent arising out of such failure.
(z) Paras. (w) sentence 2 and (x) sentence 2 shall not apply if the arbitral committee for
employee inventors or the other competent body awards (i) the lower amount of Inventor Remuneration
to the Inventor which has been proposed by the Other Party (in case of para. (w)) or the Offering
Party (in case of para. (x)) (the “Proposed Lower Amount”), or (ii) an amount which is not
higher than the Proposed Lower Amount plus 20% of the balance between the Proposed Lower Amount and
the higher amount proposed by the respective other party. In lieu of the foregoing provisions of
this clause (ii), if it turns out that the position taken by and the Inventor Remuneration paid to
an individual Inventor would or would reasonably be expected to impact the practice of payment of
Inventor Remuneration to a larger group of Inventors and create a precedent, Seller and Buyer shall
instead agree in good faith on the Inventor Remuneration to be paid to such individual Inventor.
This Section 9(c)(ii) is not meant to cause Buyer or Seller to determine the value of Purchased
Intellectual Property in which the Invention is included for any tax, accounting or other purpose
other than for the purpose of determining the Inventor Remuneration.
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(iii) If Buyer or Seller intends to enter into an agreement on the Inventor Remuneration of an
Inventor or otherwise decides to make a payment related to Inventions to an Inventor in cases where
the Invention Threshold are or would reasonably be expected to be exceeded and the other party is
— pursuant to this Section 9.9 — obliged to bear parts or all of such remuneration, then
Buyer or Seller, as the case may be, shall inform the respective other party without undue delay
about the amount of such remuneration it deems adequate to be paid to the respective Inventor and
provide the respective underlying information forming the basis for this calculation. If the
parties cannot agree on an Inventor Remuneration to be paid to the respective Inventor that is the
subject of this clause (iii) they shall offer the lower Inventor Remuneration to the Inventor and
shall bear all costs relating to the determination of the adequate Inventor Remuneration,
including, for the avoidance of doubt, internal overhead costs incurred in connection with the
administration of the proceedings before the arbitral committee or the respective competent body at
an hourly rate of EUR [**], in equal portions.
(d) Application to Patents Pursuant to Section 9.10
This Section 9.9 shall apply mutatis mutandis with respect to any Patents transferred to Buyer
or Buyer Designees pursuant to Section 9.10.”
(g) After Section 9.10 of the Purchase Agreement, the following new Section
9.11 shall be inserted:
“9.11 Transfer of the Transferred Pre-Processed Wafers
(a) On the Die-Bank Transfer Date Seller shall transfer title to its pre-processed wafers that
exist in Seller’s or its Subsidiaries’ die-banks (or die-banks of Seller’s or its Subsidiaries’
suppliers), in Seller’s, its Subsidiaries’ or its suppliers’ or sub-contractors’ backend production
facilities or in consignment at Seller’s or its Subsidiaries’ backend suppliers, at the Die-Bank
Transfer Time, provided, that such pre-processed wafers pertain primarily to the Wireline
Communications Business and are owned by Seller or a Subsidiary or to which Seller or a Subsidiary
has a claim (Anwartschaftsrecht) (other than Excluded Inventory, if any) at the Die-Bank Transfer
Time (collectively, the “Transferred Pre-Processed-Wafers”) to Buyer.
(b) The parties agree and acknowledge that the representations and warranties set forth in
Section 3.5(a) shall be deemed to have been remade to the extent of the Transferred
Pre-Processed Wafers as of the Die Bank Transfer Date on the same basis as if such Transferred
Pre-Processed Wafers had constituted Purchased Inventory. Except for the representation pursuant
to the immediately preceding sentence any representations and warranties which Buyer may have
against Seller in connection with the transfer of the Transferred Pre-Processed Wafers pursuant to
this Section 9.12 shall be restricted to any
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representations and warranties which may be available to Buyer pursuant to the Interim Supply
Agreement, and that any and all rights or remedies of any legal nature which Buyer may otherwise
have in connection with the transfer of the Transferred Pre-Processed Wafers pursuant to this
Section 9.11 (other than the claims for specific performance (primäre Erfüllungspflichten))
shall, to the extent permitted by applicable Laws, be excluded.”
(i) After Section 9.11 of the Purchase Agreement, the following new Section 9.12 shall
be inserted:
“9.12 Acquisition of French Wireline Communication Business
(a) Seller hereby sells, or agrees to cause Infineon Technologies France S.A.S. to sell, and
Buyer or a Buyer Designee hereby purchases from Seller or Infineon Technologies France S.A.S. the
assets set forth in Schedule 9.12(a) (“French Assets”). The French Assets shall be
transferred to Buyer in accordance with ancillary documentation to be agreed upon between Seller
and Buyer prior to the transfer.
(b) Buyer or a Buyer Designee shall enter into employment agreements with the four employees
listed in Schedule 9.12(b)-1 (the “French Employees”), with the transfer of the
French Employees being effected in accordance with the terms of the tripartite agreement in
substantially the form set forth as Schedule 9.12(b)-2. Seller and Buyer shall take all
necessary steps required by law or contract to transfer the French Employees to Buyer or a Buyer
Designee. Seller shall pay to the French Employees any salary (including wage tax and social
security contributions) relating to the time period up until the Closing Date. Seller shall further
compensate Buyer pursuant to Section 5.4(k) for all variable compensation payments to be
paid to the French Employees for the fiscal year ending 30 September 2009 and for any Christmas
bonus accrued up to the Closing Date for French Employees. All other employment liabilities arising
out of the French Employees’ prior employment by Seller (other than any of the type described in
clauses (w), (x), (y) and (z) in Section 2.3(a)(i) or on Schedule 2.3(b)) and, for
the avoidance of doubt, any and all employment liabilities arising out of the French Employees’
employment after the Closing Date, shall be assumed by Buyer or Buyer Designee and there shall be
no compensation for any other liability assumed by Buyer or a Buyer Designee; provided that
liabilities in connection with the French Employees shall be taken into account when determining
the Purchased Liabilities Value to the extent they exceed €300,000.
(c) In the event that any other employee of Seller or its Affiliates other than the French
Employees alleges that his or her employment relationship has been transferred to Buyer or Buyer
Designee by operation of law under article L.1224-1 of the Code du Travail or otherwise, Buyer
shall bear all risks of Buyer or a Buyer Designee in connection with the alleged or actual transfer
(by operation of law or upon a voluntary decision of Buyer or Buyer Designee) of such employees to
Buyer or a Buyer Designee, and
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there shall be no obligation of Seller or Seller’s Affiliates to compensate Buyer and Buyer
Designee for any costs, damages or liabilities in connection therewith. Buyer and Buyer Designee
shall compensate Seller and Seller’s Affiliates only for those claims of employees, whose
employment relationship actually transfer (by operation of law or upon a voluntary decision of
Buyer or Buyer Designee), which Buyer or Buyer Designee would be obliged to bear pursuant to
Section 9.12(b), if such employee were a French Employee, however only to the extent
relating to periods after the actual transfer. Any other claim asserted by such employees against
Seller or Seller’s Affiliate, or any other costs, damages or liabilities of Seller or Seller’s
Affiliate in connection with the actual transfer or the alleged transfer of employees, shall be
borne and paid by Seller or its Affiliate.
(d) Buyer and Seller intend to transfer the French Assets and the French Employees to Buyer or
a Buyer Designee not at the Closing Date but on or around 18 November 2009, it being understood
that the Closing shall in any event take place on the Closing Date irrespective of whether the
French Assets and the French Employees can be transferred on the Closing Date. During such interim
period Seller shall provide Buyer with the services of the French Employees via the Transition
Service Agreement.”
2.7 Amendments to Section 10
(a) In Section 10.1(a) of the Purchase Agreement, Seller’s facsimile number “(+49)
(00) 000 0000000” as stated in the first paragraph of Section 10.1(a) of the Purchase
Agreement shall be deleted and be replaced by the number “(+49) (00) 000 000 0000”.
(b) In Section 10.1(b) of the Purchase Agreement, Buyer’s name “Wireline Holding S.à
x.x.” as stated in Section 10.1(b) of the Purchase Agreement shall be deleted and be
replaced by the words “Lantiq HoldCo S.à x.x.”.
(c) In Section 10.5(b) and Section 10.5(d) of the Purchase Agreement the
references to “Section 2.5(i)” shall be deleted and, in each case, be replaced by a
reference to “Section 2.5(i)(i)”.
2.8 Additional Schedules; Amendments to Existing Schedules
(a) The following Schedules shall be amended, replaced or newly added to the Purchase
Agreement:
(i) Schedule 2.1(a) to the Purchase Agreement shall be deleted in its entirety and be
replaced and superseded by a revised Schedule 2.1(a) as attached to this Amendment
Agreement.
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(ii) Schedule 2.1(g) to the Purchase Agreement shall be added to the Purchase
Agreement as attached to this Amendment Agreement. Schedule 2.1(g)(iv) to the Purchase
Agreement shall be added to the Purchase Agreement as attached to this Amendment Agreement.
(iii) Schedule 2.1(g)(v) to the Purchase Agreement shall be added to the Purchase
Agreement as attached to this Amendment Agreement.
(iv) Schedule 2.7 to the Purchase Agreement shall be deleted in its entirety and be
replaced and superseded by a revised Schedule 2.7 as attached to this Amendment Agreement.
(v) Schedule 5.10 to the Purchase Agreement is hereby deleted in its entirety and
replaced and superseded by a revised Schedule 5.10 as attached to this Amendment Agreement.
(vi) Schedule 9.6 to the Purchase Agreement shall be added to the Purchase Agreement
as attached to this Amendment Agreement.
(vii) Schedule 9.12(a) to the Purchase Agreement shall be added to the Purchase
Agreement as attached to this Amendment Agreement.
(viii) Schedule 9.12(b)-1 to the Purchase Agreement shall be added to the Purchase
Agreement as attached to this Amendment Agreement.
(ix) Schedule 9.12(b)-2 to the Purchase Agreement shall be added to the Purchase
Agreement as attached to this Amendment Agreement.
(b) The following Schedules and Exhibits shall be added to the list of Schedules and Exhibits
on pages (iv) and (v) of the Purchase Agreement:
| Schedule 2.1(g) | New License Agreements Required | |
| Schedule 2.1(g)(iv) | Allocation of Payments under Licenses used by Buyer | |
| Schedule 2.1(g)(v) | Assignment Allocation | |
| Schedule 2.7 | Acquisition Structure (New Version) | |
| Schedule 5.10 | Subsidies (New Version) | |
| Schedule 9.6 | Certain Employees of Seller | |
| Schedule 9.12(a) | French Assets | |
| Schedule 9.12(b)-1 | Certain French Employees of Seller | |
| Schedule 9.12(b)-2 | Form of Tripartite Agreement for French Employees | |
| Exhibit O | Interim Supply Agreement |
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| Exhibit P | Three Party Agreement with Continued Distributors | |
| Exhibit Q | Transitional Logistics Service Agreement for the Distribution Centre in Singapore | |
| Exhibit R | Transitional Logistics Service Agreement for Forwarding, Logistics and Transport Services | |
| Exhibits S-1 - S-4 | Sales Agency and Service Agreements | |
| Exhibit T | Accounting Services Agreement | |
| Exhibit U | Mutual Research and Development Agreement |
2.9 Additional Amendments
(a) Subleases
(i) In [**] (collectively, the “Third Party Lease Locations”), the Buyer shall
negotiate direct leases with the respective landlords. Such leases shall neither be subject to
Section 5.5(iii) nor to Exhibit C of the Purchase Agreement. The Parties
acknowledge that such third party leases do not form part of the Collateral Agreements and any
failure of Buyer to enter into any such lease prior to the Closing Date shall (a) not be a reason
to postpone Closing of the transactions contemplated by the Purchase Agreement, and (b) subject to
Section 2.9(a)(ii), not result in a right of Buyer or Buyer’s Subsidiaries to continue the
use of premises leased by Seller or Seller’s Subsidiaries in the Third Party Lease Locations after
the Closing. Seller and its Subsidiaries shall not be obliged to reimburse Buyer or Buyer’s
Subsidiaries for any separation costs relating to the premises in the Third Party Lease Locations.
Seller and Seller’s Subsidiaries, on the one hand, and Buyer and Buyer Designees on the other hand,
shall use Reasonable Commercial Efforts to vacate each others’ respective business space as soon as
practical after the Closing Date.
(ii) If Buyer or a Buyer Designee uses business space of Seller or any Seller’s Subsidiary in
a Third Party Lease Location other than [**] after the Closing Date, Buyer and its Subsidiaries
shall reimburse Seller and/or Seller’s Subsidiaries for any payments required to be made by Seller
and/or Seller’s Subsidiaries to the respective landlord with respect to the premises used by Buyer
or its Subsidiaries in accordance with the principles set forth on Schedule 2.9(a)(ii).
Seller shall issue invoices for the reimbursement of such costs on a weekly basis. Buyer and
Buyer’s Subsidiaries payments shall be due one week after receipt of the respective invoice.
(iii) In Hong Kong, Buyer and Seller shall jointly negotiate a three party direct lease (the
“Tripartite Lease”) with the Seller’s current Hong Kong landlord. Such lease shall neither
be subject to Section 5.5(iii) of the Purchase Agreement nor to Exhibit C of the
Purchase Agreement. The Parties acknowledge that the Tripartite Lease shall not form part
of the Collateral Agreements and any failure of Buyer to enter into any such Tripartite Lease
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prior to the Closing Date shall (a) not be a reason to postpone Closing of the transactions
contemplated by the Purchase Agreement, and (b) not result in a right of Buyer or Buyer’s
Subsidiaries to continue the use of premises occupied by Seller or Seller’s Subsidiaries in Hong
Kong after the Closing. Seller and its Subsidiaries shall not be obliged to reimburse Buyer or
Buyer’s Subsidiaries for any separation costs relating to the premises which are subject to the
Tripartite Lease. Seller and Seller’s Subsidiaries, on the one hand, and Buyer and Buyer Designees
on the other hand, shall use Reasonable Commercial Efforts to vacate each others’ respective
business space as soon as practical after the Closing Date. If Buyer or a Buyer Designee uses
business space of Seller or any Seller’s Subsidiary in Hong Kong after the Closing Date, Buyer and
its Subsidiaries shall reimburse Seller and/or Seller’s Subsidiaries for any payments required to
be made by Seller and/or Seller’s Subsidiaries to the respective landlord with respect to the
premises used by Buyer or its Subsidiaries in accordance with the lease agreement between Seller or
its respective Subsidiary and the landlord. Seller shall issue invoices for the reimbursement of
such costs on a weekly basis. Buyer and Buyer’s Subsidiaries payments shall be due one week after
receipt of the respective invoice.
(iv) In [**] (collectively, the “Sublease Locations”), the parties intend to conclude
Sublease Agreements as set out in Section 5.5(iii) of the Purchase Agreement. The Parties
acknowledge that if and to the extent at any Sublease Location the required consent to the
respective Sublease Agreement by Seller’s (or the respective Subsidiary’s) main lessor has not been
granted prior to the Closing Date, the non-conclusion of the Sublease Agreement at the respective
Sublease Location prior to the Closing Date shall not be a reason to postpone Closing of the
transactions contemplated by the Purchase Agreement. If Buyer or a Buyer Designee uses business
space of Seller or any Subsidiary in any Sublease Location after the Closing Date in absence of an
executed Sublease Agreement due to the respective main lessor’s consent to such Sublease Agreement
not having been granted prior to the Closing Date, (y) Seller shall obtain such main lessor’s
consent without undue delay after the Closing Date and at the latest on or before 31 December 2009
(it being understood that, in addition, Buyer shall use Reasonable Commercial Efforts to obtain the
consent), and (z) the respective Buyer Designee and Seller or the respective Subsidiary shall
conclude the Sublease Agreement for any such Sublease Location without undue delay once respective
main lessor’s consent has been obtained or under the condition precedent that such consent has been
obtained, with retroactive economic effect to the Closing Date. Buyer and its Subsidiaries shall
pay a remuneration to Seller and/or Seller’s Subsidiaries for the use of the premises by Buyer or
its Subsidiaries according to the same terms that would be in force had the respective main lessor
granted its consent prior to the Closing Date.
(v) Section 1.1 of the Purchase Agreement shall hereby be updated to replace the
references for the Sublease Agreement from Exhibit D to Exhibit C.
(b) Operations of the Wireline Communications Business in China
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(i) Due to delays in setting up a Buyer Designee in China it will not be possible to transfer
the Chinese operations of the Wireline Communications Business to a local Buyer Designee at the
Closing Date. The Parties agree that Seller and the Chinese Sellers shall conduct the Chinese
operations of the Wireline Communications Business for the account and risk of Buyer in the Interim
Period and, if applicable, the Additional Interim Period. During such periods, Section 5.2 of the
Purchase Agreement shall apply mutatis mutandis. “Interim Period” shall be the time period
between the Closing Date and the earlier of (i) the date (24.00 h CET) which is eleven (11)
Business Days following the date on which Buyer has registered its Buyer Designee in China, (ii)
January 31, 2010, 24.00 h CET or (iii) any date as agreed between Buyer and Seller. Buyer shall
have the right to extend the Interim Period until March 31, 2010, 24.00 h CET at the latest (the
“Additional Interim Period”) by written declaration to Seller which has to be received by
Seller prior to January 15, 2010, 24.00 h CET. All profits or losses, income, taxes and expenses of
the Chinese operations of the Wireline Communications Business in China in the Interim Period and
the Additional Interim Period, if applicable, shall be received or borne by Buyer retroactively as
from the Closing Date. With respect to the preceding sentence, Section 2.7(a) of the
Purchase Agreement shall apply accordingly. The parties assume that all revenues relating to the
Chinese Wireline Communications Business will be generated by Lantiq Deutschland GmbH as from the
Closing Date.
(ii) During the Interim Period and the Additional Interim Period, if applicable, the following
shall apply to the Purchased Contracts, Purchased Assets and Business Employees relating to the
Wireline Communications Business in China:
(x) Purchased Contracts
The Purchased Contracts relating to Seller’s Subsidiary in China shall not be transferred to
Buyer or Buyer Designee on the Closing Date. Seller or its Subsidiary in China will vis-à-vis the
Third Party (im Außenverhältnis) remain the party to the respective Purchased Contracts and the
Parties will, for the purpose of their internal relationship (im Innenverhältnis) and to the
maximum extent legally permitted, behave and put each other in the position as if (sich so stellen
wie) the transfer (Vertragsübernahme) of the respective Purchased Contracts had effectively taken
place on the Closing Date in accordance with Section 2.1(c) of the Purchase Agreement
through Section 2.1(e) of the Purchase Agreement.
(y) Purchased Assets
The Purchased Assets pertaining to the Chinese operations of the Wireline Communications
Business shall not be transferred to Buyer or Buyer Designee on
the Closing Date. Seller and its Subsidiary in China shall hold such Purchased Assets in
accordance with Buyer’s reasonable instructions. Risk of loss or damages to the Purchased
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Assets in
China shall pass on to Buyer on the Closing Date, provided that Seller and the Chinese Sellers
shall, for the Interim Period and, if applicable, the Additional Interim Period, maintain their
existing insurance with respect to such Purchased Assets and shall use Reasonable Commercial
Efforts to collect upon and remit any proceeds thereof to the extent relating to such Purchased
Assets.
(z) Business Employees in China
The Chinese Business Employees shall not be transferred to Buyer or Buyer Designee on the
Closing Date. Such Chinese Business Employees shall, to the extent permissible by law, be employed
by the Chinese Sellers for the operation of the Wireline Communications Business. With regard to
the employment of the Chinese Business Employees, the Chinese Sellers shall take into account
Buyer’s reasonable requests, provided, however, that the right to issue instructions to such
Business Employees (Weisungsrecht) shall remain with Seller’s Subsidiary in China until the end of
the Interim Period or the Additional Interim Period as applicable. During the Interim Period and
the Additional Interim Period Seller and its Affiliates shall not be obligated to hire any
additional employees or to substitute any Chinese Business Employee whose employment relationship
has terminated. The principles which are set forth in the third and fourth sentences of Section
5.4(a)(ii) of the Purchase Agreement shall not apply with respect to any Chinese Business Employee
whose employment relationship has terminated during the Interim Period or the Additional Interim
Period.
(iii) Buyer and Buyer Designees shall indemnify and hold harmless (freistellen) Seller and
Seller’s Subsidiaries from and against any and all obligations, liabilities, damages, losses, costs
and expenses resulting from the operation of the Wireline Communications Business in China after
the Closing Date (for the avoidance of doubt, excluding (i) any out-of-pocket costs and other
expenses, including salary and other payments to Chinese Business Employees, incurred by Seller and
Seller’s Subsidiaries for the purpose of operating the Wireline Communications Business in China
and Seller’s or its Subsidiaries overhead costs which are already remunerated by the fee pursuant
to para. (v) below, to the extent such fee pursuant to para. (v) below has actually been paid by
Buyer, and (ii) any obligations, liabilities, damages, losses, costs and expenses resulting from
wilful misconduct (including fraud) of Seller or Seller’s Affiliates). Subject to the exclusions
set forth in (i) and (ii) of the preceding sentence, this shall, for the avoidance of doubt,
include any and all damages, losses, costs and expenses incurred by Seller or its Subsidiaries in
connection with Chinese Business Employees relating to the time after the Closing Date.
(iv) At the last day of the Interim Period or the Additional Interim Period as applicable (the
“Chinese Closing Date”), the then existing Purchased Contracts,
Purchased Assets and relevant Business Employees and Purchased Liabilities with respect to the
Chinese Wireline Communications Business shall be transferred to Buyer Designee in
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accordance with
Section 2.1(a) and Section 2.1(b), Section 2.2 and Section 5.4(h)
(in each case of the Purchase Agreement) respectively, it being understood that the allocation of
rights and obligations pursuant to paras. (ii)(x) through (z) shall remain unaffected. If a Buyer
Designee has not been duly established in China at the end of the Interim Period or the Additional
Interim Period as applicable, the Purchased Contracts, Purchased Assets and Business Employees
relating to the Chinese operations of the Wireline Communications Business shall be transferred to
Buyer or a Buyer Designee designated by Buyer prior to the end of the Interim Period or the
Additional Interim Period. Buyer shall cause the respective Buyer Designee, and Seller shall cause
the respective Subsidiary, to enter into (a) the agreements required to effect such transfer of the
Purchased Contracts, the Purchased Assets and the relevant Business Employees at the end of the
Interim Period or the Additional Interim Period as applicable and (b), without undue delay after
the date the Chinese Designee of Buyer has received the approval of its business license
registration, a temporary sublease agreement until the Chinese Closing Date regarding the premises
of the Wireline Communications Business in Shanghai (China) in substantially the form set forth as
Schedule 2.9(b)(iv)-(1) and (c), as of the Chinese Closing Date, a sublease agreement
regarding the premises of the Wireline Communications Business in Shanghai (China) to be negotiated
in good faith in accordance with the terms set forth in Exhibit C of the Purchase Agreement.
(v) As consideration for the operation of the Chinese operations of the Wireline
Communications Business after the Closing Date, Buyer shall pay to Seller a fee of EUR [**] per
month (including 5% local Business Tax) (consisting of EUR [**] for the operations in Shenzhen and
EUR [**] for the operations in Shanghai) in the Interim Period and, if applicable, of EUR [**] per
month in the Additional Interim Period. Seller will issue invoices to Buyer at the end of each
calendar month of the Interim Period and the Additional Interim Period.
(vi) For the avoidance of doubt, the obligation of Buyer to make the Closing Payment or pay
the Purchase Price shall be in no way limited by the fact that the Purchased Assets, Purchased
Liabilities, Purchased Contracts and Business Employees relating to the Chinese operations of the
Wireline Communications Business are not transferred to Buyer or a Buyer Designee on the Closing
Date, except that the payment of the Closing Payment allocable to the Chinese operations of the
Wireline Communications Business shall only be due and payable on the Chinese Closing Date in
Chinese local currency (for purposes of calculating the Purchase Price converted into EUR at the
exchange rate of CNY 10.1511 for EUR 1.00). In particular, the Purchased Assets relating to the
Chinese operations of the Wireline Communications Business shall be taken into account when
calculating the Estimated Inventory Value and the Purchased Inventory Value in accordance with
Sections 2.5(d) and (f) of the Purchase Agreement. Likewise, the Purchased
Liabilities as of the Closing Date relating to the Chinese operations of the Wireline
Communications Business shall be taken into account when calculating the Estimated
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Liabilities
Value and the Purchased Liabilities Value in accordance with Sections 2.5(d) and
(f) of the Purchase Agreement.
(c) Operations of the Wireline Communications Business in [**]
(i) The Purchased Assets constituting fixed assets and pertaining to the Wireline
Communications Business in [**] shall not be transferred to Buyer or Buyer Designee on the Closing
Date, but at the earlier of the date which is (i) three weeks following the Closing Date or (ii)
two (2) Business Days after Buyer has notified Seller in writing that the Purchased Assets
pertaining to the Wireline Communications Business in [**] shall be transferred (the “[**]
Interim Period”). At the last day of the [**] Interim Period the then existing Purchased Assets
pertaining to the Wireline Communications Business in [**] shall be transferred to Buyer or Buyer
Designee designated by Buyer in accordance with Section 2.2 of the Purchase Agreement.
Seller will transfer such Purchased Assets in the condition in which they are and there shall be no
liability of Seller for a deterioration of the Purchased Assets after Closing. Buyer shall cause
the respective Buyer Designee, and Seller shall cause the respective Subsidiary, to enter into the
agreements required to effect such transfer of the Purchased Assets at the end of the [**] Interim
Period. Seller and [**] Seller shall, for the [**] Interim Period, maintain their existing
insurance with respect to such fixed Purchased Assets and shall use Reasonable Commercial Efforts
to collect upon and remit any proceeds thereof to the extent relating to such fixed Purchased
Assets.
(ii) For the [**] Interim Period, Seller or the relevant Seller Affiliate and Buyer or the
relevant Buyer Designee shall at Closing enter into a manpower supply agreement substantially in
the form attached hereto as Schedule 2.9(c)(ii).
(iii) For the avoidance of doubt, the obligation of Buyer to make the Closing Payment or pay
the Purchase Price shall be in no way limited by the fact that the Purchased Assets relating to the
[**] operations of the Wireline Communications Business are not transferred to Buyer or a Buyer
Designee on the Closing Date, except that the payment by Seller or Buyer, as applicable, of the
Closing Payment allocable to the [**] operations of the Wireline Communications Business shall only
be due and payable on the last day of the [**] Interim Period in [**] local currency (for purposes
of calculating the Purchase Price converted into EUR at the exchange rate of [**] for EUR 1.00).
3. Additional Agreements and Acknowledgments
(a) In furtherance of their joint obligation in Section 2.1(b) of the Purchase
Agreement to use Reasonable Commercial Efforts to obtain the consents of the Third Parties which
are required to transfer the Purchased Contracts, Seller and Buyer have provided, and will continue
to provide, the Third Parties with drafts of letter agreements in which Seller
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and Buyer, inter
alia, notify the Third Parties of the sale of the Purchased Contracts, provide the Third Parties
with a short summary of the terms and conditions of the Purchase Agreement relating to the sale and
transfer of the Purchased Contracts, and request the Third Parties to consent to the transfer of
the Purchased Contracts to Buyer by returning an executed copy of the letter agreement
(collectively, the “Consent Letters”). Seller and Buyer agree and acknowledge that the
Consent Letters shall not amend, and shall not be deemed to amend, the terms and conditions
relating to the sale and transfer of the Purchased Contracts on which Seller and Buyer have agreed
in the Purchase Agreement. The same shall apply to any form of three-party-agreement to be entered
into between Seller, Buyer and the respective contractual counterparty to the respective Purchased
Contract in connection with the transfer of the Purchased Contracts from Seller to Buyer,
including, but not limited to, any form of “assignment and assumption agreements” or “deed of
novations”. Seller and Buyer further agree and acknowledge that (i) the “transfer of business
notice” published by Lantiq Hong Kong Limited and Infineon Technologies Hong Kong Limited in Hong
Kong and any similar announcements which have been or will be made by Buyer, Seller and/or their
Subsidiaries, (ii) any letter or correspondence with Governmental Bodies or other Third Parties
regarding any Subsidies, (iii) the Transfer Agreements and (iv) the tripartite agreement
(“convention tripartite”) and the cover letter thereto to transfer the French Employees to Buyer or
a Buyer Designee, shall not amend, and shall not be deemed to amend, the terms and conditions of
the sale and transfer of the Wireline Communications Business on which Seller and Buyer have agreed
in the Purchase Agreement.
(b) In connection with the Balancing of Interests Procedures, Buyer’s indirectly wholly owned
subsidiaries Lantiq Beteiligungs-GmbH & Co. KG and Lantiq Deutschland GmbH (both collectively the
“Lantiq Subsidiaries”) entered into (i) an Ancillary Agreement (Regelungsabrede) by and
between the Lantiq Subsidiaries, Seller’s works councils (Betriebsräte) at Duisburg and Munich
(Campeon) and Seller’s joint works council (Gesamtbetriebsrat) on the waiver of the social plan
privilege pursuant to sec. 112a para. 2 Works Constitution Act (BetrVG) in the Lantiq Subsidiaries,
dated September 9, 2009, and (ii) an Agreement for the Spin-Off of the Business Unit Wireline
Communications into Lantiq Deutschland GmbH (Balancing of Interest and Transfer Agreement)
(Vereinbarung zur Ausgliederung des Geschäftsbereichs Wireline Communications in die Lantiq
Deutschland GmbH (Interessenausgleich und Überleitungsvereinbarung)), by and between the Lantiq
Subsidiaries, Seller’s joint works council and Seller, dated September 9, 2009, (collectively and
together with any other agreements concluded by the Buyer and/or any of its direct or indirect
subsidiaries in connection with the Balancing of Interests Procedures or the side agreement
(Nebenabrede) between Seller, Seller’s joint works council and Seller’s works councils in Munich
and Duisburg on the temporary waiver of a social
plan/redundancy payments, dated September 9, 2009, the “Works Council Agreements”).
Buyer confirms that it will not invoke that the Closing Condition under Section 7.2(e) of the
Purchase Agreement has not been fulfilled solely because of the signing of the Works Council
Agreements. For the avoidance of doubts: Any other potential remedies of Buyer (e.g. damage claims,
invocation of non-fulfillment of other Closing Conditions under
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Section 7.2(e) of the Purchase
Agreement or otherwise), if any, remain unaffected. The Parties agree that the Works Council
Agreements shall not be, and shall not be deemed to be, an amendment, supplement or modification of
the Purchase Agreement or, subject to the two preceding sentences, waiver of any rights which the
undersigned or any of its direct or indirect subsidiaries might have thereunder.
(c) Seller shall pay to Buyer an amount of EUR 145,000 (in words: one hundred forty five
thousand Euros) as compensation for liabilities assumed by Buyer or a Buyer Designee in connection
with the Old Retirement Scheme applicable to Taiwanese Transferred Employees. The payment shall be
made in cash and shall become due and payable in accordance with the payment methodologies set
forth in Section 2.5(j) within five (5) Business Days after the Closing Date. For the
avoidance of doubt, although the Seller shall use Reasonable Commercial Efforts to insure in each
case that the payment is made in five (5) Business Days, Buyer shall not charge interest to Seller
for the first five (5) Business Days following such deadline. Buyer shall assume all of Seller’s
Liabilities in connection with the Old Retirement Scheme applicable to Taiwanese Transferred
Employees and such liabilities shall be treated like “Purchased Liabilities”, and they shall be
treated as a “Calculation Exclusion” within the meaning of Section 2.5(b)(y) of the
Purchase Agreement.
(d) With respect to Wireline Distributors with which Buyer intends not to continue a
distributor relationship (which distributors are listed on Schedule 3(d)), Buyer or the
relevant Buyer Designee will, subject to all of the other terms and conditions of this Agreement,
assume and perform all purchase orders of such distributors exclusively relating to the Wireline
Communications Business that are outstanding and unfulfilled at the Closing Date (collectively the
“Closing Date Purchase Orders”) and treat them as Purchased Contracts under Section
2.1(a)(iii) of the Purchase Agreement. In this context, the Parties clarify that (i) the
underlying distributorship agreement shall not be transferred to Buyer or any of Buyer’s
Subsidiaries, and (ii) the cost-sharing allocations set forth in Section 9.8 of the
Purchase Agreement (which remains unaffected) shall apply to all termination payments made by any
of Seller, Buyer or a Buyer Designee, regardless of which party may be required to make such
payments; for the avoidance of doubt, this shall not apply to payments of Buyer or Buyer Designee
if Buyer or Buyer Designee decides to continue the existing or enter into a new distributorship
agreement with the respective distributor, which, for the avoidance of doubt, shall not occur
merely because Buyer fulfills the Closing Date Purchase Orders or received the proceeds therefrom.
(e) Buyer hereby elects, pursuant to Section 5.4(n) of the Purchase Agreement, to have
Seller provide medical and vision Welfare Benefit Coverages to US Transferred Employees (and their
spouses and eligible dependents) during the period beginning on the date immediately following the
Closing Date and ending on November 30, 2009. Buyer shall reimburse Seller, within five (5)
Business Days after such period in an amount equal to
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USD 1,447.68 for each day during such period;
any other claims of Seller pursuant to Section 5.4(n) last sentence shall remain
unaffected.
(f) Additional Agreements relating to the Treatment of Certain Customers
(i) The parties agree and acknowledge that there are Third Parties which have not yet
consented to transfer the Purchased Contracts to which they are a party to Buyer or a Buyer
Designee at Closing (each such Third Party a “Non-Consenting Customer”), and that the
regulations set forth in Section 2.1(b)(ii) of the Purchase Agreement shall apply with
respect to each such Non-Consenting Customer until the earlier of (x) the third Business Days
following the date on which Seller or Buyer has obtained the consent of the respective
Non-Consenting Customer to the transfer of the Purchased Contracts with such Non-Consenting
Customer, and (y) the day on which Buyer notifies Seller in writing that it no longer requires the
respective services (each such date an “Expiration Date”). If there are Non-Consenting
Customers, who have not consented to the transfer of the respective Purchased Contract to Buyer or
a Buyer Designee by 15 December 2009, Buyer and Seller shall in good faith discuss about potential
solutions after 31 December 2009 how to deal with these Non-Consenting Customers and the fact if
and to the extent they have not consented to the transfer of the respective Purchased Contract to
Buyer or a Buyer Designee; an appropriate compensation of Seller for any continuation of Handling
Services by Seller after 31 December 2009 will be part of such good faith discussions.
(ii) The parties further agree and acknowledge that the services which Seller will need to
perform in order to continue to serve the Non-Consenting Customers as contemplated in this
Section 4(f) (all processes to be performed in connection therewith, collectively, the
“Handling Services”) will not be part of an automatic supply routine, but will be conducted
on the basis of complex manual processes. Seller and its Affiliates shall use Reasonable Commercial
Efforts to provide the Handling Services with respect to all Non-Consenting Customers, but Buyer
acknowledges that Seller and its Affiliates cannot make any prediction regarding the scope of
Handling Services which can be performed and their quality and shall — to the extent permissible
by law — not be held liable for any failure to perform Handling Services with respect to
Non-Consenting Customers or any defects in connection with this manual process, except to the
extent resulting from any wilful misconduct (including fraud) of Seller or any of its Affiliates or
any failure of Seller and its Affiliates to use Reasonable Commercial Efforts to provide such
Handling Services.
(iii) Buyer and the Buyer Designees shall provide Seller and the Subsidiaries with all
information and services reasonably requested by Seller and the Subsidiaries which are required by
Seller and the Subsidiaries to perform the Handling Services (including, but not limited to,
providing customers forecasts and order evaluation services).
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(g) It is agreed and understood that if there are any performances rendered by Seller or any
Subsidiary to Third Parties on the Closing Date, then the accounts receivables for such
performances shall, notwithstanding anything to the contrary in the Purchase Agreement or this
Amendment Agreement, be for the account of Buyer; any employment liabilities (in the scope pursuant
to Section 2.3(a)(i) of the Purchase Agreement) relating to the Business Employees on the Closing
Date shall be borne by Buyer and Buyer Designees, including, for the avoidance of doubt, salary
claims including wage tax and social security contributions (Gehaltsansprüche einschließlich
Lohnsteuer und Sozialabgaben) for the Closing Date.
(h) Notwithstanding anything to the contrary in any Transfer Agreement, if the transfer of any
asset (including right or claim) purported to be made pursuant to any Transfer Agreement would
cause or result in the need for compensation, indemnification, defense, or holding harmless to be
made pursuant to Section 5.10(f)(i) of the Purchase Agreement, then the respective Seller
shall, and shall cause its Affiliates to, use Reasonable Commercial Efforts to reassign and/or
retransfer, to the extent possible under applicable Laws, such asset (including any right or claim)
to Buyer or an Affiliate of Buyer to be determined by Buyer, so as to best avoid the possibility of
any compensation, indemnification, defense and holding harmless pursuant to Section
5.10(f)(i) of the Purchase Agreement having to be made; provided that any costs (including
reasonable lawyers’ fees) resulting from any such reassignment and/or retransfer shall be borne by
Buyer. For the avoidance of doubt, Section 5.10(f)(i) of the Purchase Agreement remains
unaffected.
(i) Buyer and Seller hereby acknowledge and agree that the Trademark Assignments and Patent
Assignments to be delivered at Closing are intended to transfer and record good and valid title in
and to the Assigned Patents and the Assigned Trademarks to Buyer. In furtherance thereof, no later
than ten (10) Business Days following the Closing, Seller shall deliver to Buyer for review copies
of instruments (including applicable schedules of Assigned Patents and Assigned Trademarks for
assignment to Buyer) suitable for filing in local jurisdictions to record and evidence the transfer
of the Assigned Patents and Assigned Trademarks from Seller to Buyer in jurisdictions in which the
Trademark Assignments and Patent Assignments may not be accepted for such purposes. Buyer shall
have five (5) Business Days to provide comments to such instruments to Seller, and in the event any
such comments are provided Seller and Buyer shall work together in good faith to resolve the same
in a manner reasonably suitable to both parties. Thereafter, the parties shall work together with
all reasonable speed to sign, execute or procure the execution of (and, where
applicable, have notarized or legalized or the like) such documents. No later than five (5)
Business Days following the execution (and, where applicable, notarization or legalization or the
like) of each such instrument, Seller shall deliver such instruments to its appropriate outside
counsel for filing with the appropriate Governmental Body in each instance. Also, no later than
fifteen (15) Business Days following the Closing, Seller shall deliver to Buyer executed (and,
where applicable, notarized or legalized or the like) copies of instruments (and evidence of filing
thereof) recorded by Seller’s counsel with the
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appropriate Governmental Bodies in the appropriate
local jurisdictions that were effective and sufficient to correct all historical title defects in
the Assigned Patents and Assigned Trademarks so that the same are owned by Seller (or the
applicable Seller Affiliates assigning the same to Buyer or a Buyer designee pursuant to
instruments executed at Closing). In the event there are any issues with respect to any filing or
instrument described in this paragraph (i), Seller shall promptly notify Buyer and the parties
shall work together in good faith to remedy the same. The Parties agree that any failure by Seller
to deliver the documents covered by this paragraph (i) at Closing shall not constitute a breach of
the representation and warranty pursuant to Section 3.12(a) of the Purchase Agreement.
(j) The Closing Payment allocable to the Latvian operations of the Wireline Communications
Business shall be payable in Latvian local currency (for purposes of calculating the Purchase Price
converted into EUR at the exchange rate of LVL 0.702804 for EUR 1.00).
(k) Buyer shall reimburse Seller any salary (including wage tax and social security
contributions (Gehaltsansprüche einschließlich Lohnsteuer und Sozialabgaben)) which has been paid
by Seller to the Latvian Transferred Employees for the time period from 1 November until and
including 6 November 2009, unless the salary has been paid to the Latvian Transferred Employees on
a regular pay day. The payment shall be made in cash and shall become due and payable in accordance
with the payment methodologies set forth in Section 2.5(j) on 30 November 2009.
4. Miscellaneous
(a) Section 10 and Section 11 of the Purchase Agreement, in each case as
amended by this Amendment Agreement, shall apply mutatis mutandis to this Amendment Agreement.
(b) This Amendment Agreement shall be deemed part of the Purchase Agreement even if no express
reference to this Amendment Agreement is made in whatever document relating to the Purchase
Agreement.
* * * * *
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IN WITNESS WHEREOF, each party has caused this Amendment Agreement to be duly executed on its
behalf by its duly authorized officer as of the date first written above.
| INFINEON TECHNOLOGIES AG | ||||||||||
By:
|
/s/ Xxxxxxxxx Xxxxx | By: | /s/ Xxxxxx Xxxx | |||||||
| Name: Xxxxxxxxx Xxxxx | Name: Xxxxxx Xxxx | |||||||||
| Title: Senior Director | Title: VP CSP Controlling | |||||||||
By:
|
/s/ Xxxxxx Xxxxxx | By: | /s/ Xx. Xxxxx Xxxxxxx | |||||||
| Name: Xxxxxx Xxxxxx | Name: Xx. Xxxxx Xxxxxxx | |||||||||
| Title: Corporate Legal Counsel | Title: Corporate Legal Counsel | |||||||||
| LANTIQ HOLDCO S.À X.X. |
||||||||||
| By: | /s/ Xxxx Xxxxx | |||||||||
| Name: Xxxx Xxxxx | ||||||||||
| Title: Manager | ||||||||||
[APA Amendment]
