Contract
EXHIBIT 2.3
This
Exchange Agent Agreement (the “Agreement”) is
entered into as of January 2, 2009, between PLX Technology, Inc., a Delaware
corporation (the “Purchaser”),
Computershare, Inc., a Delaware Corporation (“Computershare”), and
Computershare’s fully owned subsidiary Computershare Trust Company, N.A., a
national banking association (the “Trust Company,” and
together with Computershare, the “Exchange
Agent”). Capitalized terms used but not defined herein have
the meanings assigned to them in the Merger Agreement (as defined in the recital
below). In the event of any conflict, discrepancy, or ambiguity
between the terms and conditions contained in this Agreement and any schedules
or attachments hereto, the terms and conditions contained in this Agreement
shall take precedence
WHEREAS,
the Purchaser has agreed to acquire Oxford Semiconductor, Inc., a Delaware
corporation (the “Target Company”), by
means of a merger (the “Merger”) of Osprey
Acquisition Sub, Inc., a Delaware corporation and wholly-owned subsidiary of the
Purchaser (the “Merger
Sub”), with and into the Target Company pursuant to an Agreement and Plan
of Merger, dated as of December 15, 2008, as amended (the “Merger Agreement”), a
copy of which is attached hereto as Exhibit A, among the
Purchaser, the Merger Sub, the Target Company and VantagePoint Venture Partners
IV (Q), L.P., in its capacity as the Stockholder Representative, pursuant to
which the Target Company, as the “Surviving Company” of
the Merger, will become a wholly-owned subsidiary of the
Purchaser.
WHEREAS,
the Stockholders will receive as Merger Consideration their pro rata amount of
the Share Consideration and Note, including Note Satisfaction Shares in the
event that the stockholders of the Purchaser approve the Note
Satisfaction.
WHEREAS,
the Trust Company is presently the Transfer Agent and Registrar for the
Purchaser (hereinafter referred to from time to time as the “Transfer Agent”);
and
WHEREAS,
the Purchaser desires that the Trust Company act as exchange agent in connection
with the surrender of stock certificates evidencing shares of capital stock of
the Target Company (the “Certificates”) by the
Stockholders; and accept and respond to all telephone requests for information
in connection with the exchange of Certificates for each Stockholder’s
respective portion of the Merger Consideration (the “Exchange”), in the
amount as set forth opposite each Stockholder’s name in the Final Merger
Consideration Allocation Schedule attached hereto as Exhibit B, and that
Computershare act as the share disbursement agent and paying agent, as
applicable, and Computershare and the Trust Company have indicated their
willingness to do so.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and in the
Merger Agreement, the parties hereto agree as follows:
1.
Appointment of
Exchange Agent.
The
Purchaser hereby appoints the Trust Company as Exchange Agent for purposes of
receiving, accepting for delivery and otherwise acting upon tenders of the
Certificates, in accordance with the Letter of Transmittal and the terms and
conditions contained in Article 2 of the Merger Agreement, in effecting the
exchange of the Stockholders’ Certificates for their respective share of the
Merger Consideration (as set forth opposite each Stockholder’s name on the Final
Merger Consideration Allocation Schedule, attached hereto as Exhibit
B). In accordance with the terms of the Merger Agreement,
immediately prior to the Closing, the Purchaser will cause to be deposited with
the Exchange Agent, in trust for the Stockholders, the Closing Disbursement and,
as soon as commercially practicable but in any event no later than three
Business Days after the Special Meeting, the Note Satisfaction Shares or Note
Satisfaction Cash (as defined herein), as the case may be. For the
purposes of this Agreement, the term “Note Satisfaction
Cash” means the principal amount of the Note, plus any accrued interest
on the Note (the “Note
Interest”).
2.
Notification and
Processing.
The
Exchange Agent is hereby authorized and directed, and hereby agrees
to:
2.1
As soon as practicable after the Effective Time, mail by first class mail,
postage prepaid, to each holder of record of Certificates as of the Effective
Time, the following materials: (a) a copy of the Letter of
Transmittal (in the form attached hereto as Exhibit C) including
the Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9 relating to shares of Target Company’s capital stock having thereon the
name and address of such record holder, (b) an envelope addressed to the
Exchange Agent for use by such Stockholder in exchanging his or her
Certificate(s) for shares of Purchaser Common Stock and cash and (c) the letter
regarding the need to provide the Exchange Agent with forwarding
information.
2.2
Accept and respond to all requests for information in connection with the
Exchange.
2.3
Receive and examine all Certificates submitted for exchange and accompanying
Letters of Transmittal for proper execution in accordance with the terms
thereof. Such examination will include the determination that (a)
such Certificates are in proper form for transfer on the share registry books of
the Transfer Agent, (b) the total number of shares evidenced by the Certificates
matches the number of shares of Target Company capital stock listed as being
held by such Stockholder on the Final Merger Consideration Allocation Schedule
and (c) no stop order has been issued against the shares represented by the
surrendered Certificates by reason of loss, theft, destruction or other
invalidity. If more than one person is the record holder of any such
Certificate, the Letter of Transmittal must be signed by each record
holder.
2.4
Retain or return to Stockholders (as applicable) those exchange documents
evidencing some deficiency in execution and make reasonable attempts to inform
such former Stockholders of the need to correct such deficiency.
2.5
Accept exchanges signed by persons acting in a fiduciary or representative
capacity only if such capacity is shown on the Letter of Transmittal and proper
evidence of their authority so to act has been submitted.
2.6
Accept exchanges from Stockholders alleging loss, theft or destruction of their
Certificates upon receipt of an appropriate affidavit of loss, applicable
processing fee and a corporate bond of indemnity, which will include
indemnification of the Purchaser and the Exchange Agent, for the shares of the
Target Company capital stock evidenced by such Certificate or Certificates by a
surety, all in such customary form and substance as have been reasonably
approved by the Exchange Agent.
2.7
Accept exchanges for Purchaser Common Stock to be issued other than in the name
that appears on the Certificates submitted for exchange, where (a) such
Certificates are duly endorsed or accompanied by appropriately signed stock
powers, (b) the signature thereon is guaranteed by a participant in a signature
guarantee program approved by the Securities Transfer Association, and (c) any
necessary stock transfer taxes are paid and proof of such payment is submitted
or funds therefore are provided to the Exchange Agent, or it is established by
the Stockholder that no such taxes are due and payable.
2.8
Promptly after the Effective Time, issue, as Transfer Agent for the Purchaser
Common Stock, upon surrender of Certificate(s) and properly executed Letters of
Transmittal, 5,600,000 shares of Purchaser Common Stock to the Stockholders, in
accordance with the Final Merger Consideration Allocation Schedule; provided
that no fractional shares of capital stock will be issued, in lieu of which cash
payments will be made as set forth in Section 3.8 below.
2.9
(a) In the event that the Note Satisfaction is approved
by the Purchaser’s stockholders at the Special Meeting, promptly after the deposit of the
Note Satisfaction Shares by the Purchaser, in accordance with Section 1.2(c) of
the Merger Agreement, deliver any accrued Note
Interest and issue 3,400,000 shares of Purchaser Common Stock to the
Stockholders, in accordance with the Final Merger Consideration Allocation
Schedule; provided that no fractional shares of capital stock will be issued;
or
(b)
In the event that Note Satisfaction is not approved by the Purchaser’s
stockholders at the Special Meeting, promptly after the deposit of the
Note Satisfaction Cash by the Purchaser, in accordance with Section 1.2(c) of
the Merger Agreement, pay the Note Satisfaction Cash to the Stockholders, in
accordance with the Final Merger Consideration Allocation Schedule.
2.10
Arrange for the issuance of single certificates for the shares of Purchaser
Common Stock to which each Stockholder is entitled (each a “Purchaser
Certificate” and, collectively, the “Purchaser
Certificates”) or statement of holding reflecting new shares of Purchaser
Common Stock in the Direct Registration System, unless such Stockholder has
attached written instructions to the contrary to his or her Letter of
Transmittal.
2.11
As Transfer Agent, record and countersign Purchaser Certificates, if applicable,
in such names and in such amounts as the Exchange Agent may request in writing
and deliver such Purchaser Certificates to or upon the written order of the
Exchange Agent.
2.12
Cancel, as Exchange Agent, all Certificates accepted for exchange and retain
such Certificates pending further instructions from Purchaser.
2.13
If appropriate, deliver Purchaser Certificates or statements of holding by first
class mail under the provisions of the Exchange Agent’s first class mail bond
protecting the Exchange Agent from loss or liability arising out of the
non-receipt or non-delivery of such Purchaser Certificates or statements of
holding or arising out of the replacement thereof, for any deliveries where
market value does not exceed the amount of the Exchange Agent’s first class mail
bond. Any mail delivery exceeding such amount will be delivered by
registered mail or overnight mail and will be insured separately for the
replacement value of its contents at the time of mailing.
2.14
When Certificates registered in the name of each Stockholder are
surrendered:
(a)
Arrange for the issuance
of Purchaser Certificates or Statements of Holding in the name of any
other person only with the proper approval of the Purchaser.
(b)
Issue in exchange therefor, as Transfer Agent and Registrar for the Purchaser
Common Stock, Purchaser Certificates or Statements of Holding with a legend in
the form set forth below applied to each of such certificates or Statements of
Holding:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “ACT”) AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT
OR, IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO
THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR
HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(c)
Create a special account for the issuance of shares of Purchaser Common Stock to
the Stockholders who have not yet surrendered Certificates. When any
such Certificates are surrendered, exchange them for Purchaser Certificates or
Statements of Holding. Purchaser shall provide an opinion of counsel
prior to the Effective Time to set up reserve of shares. The opinion
shall state that all such shares are:
(i)
exempted from registration under the securities Act of 1933, as amended, and all
appropriate State securities law filings have been made with respect to the
shares; and
(ii)
validly issued, fully paid and non-assessable.
2.15
At the request of the Purchaser, return to the Purchaser any and all records,
information and material concerning and representing unexchanged shares of
Target Company capital stock.
2.16
Maintain on a continuing basis a list of Stockholders who have not yet exchanged
their Certificates.
2.17
Hold all information as to the Exchange in strict confidence on the part
of itself and all of its officers, employees, representatives and
agents.
3.
Processing of
Disbursements.
Computershare is hereby authorized and directed, and hereby agrees
to:
3.1
Furnish the Purchaser with a report specifying those Stockholders who have
received their pro rata portion of the Merger Consideration upon submission of
the required documentation (but in any event, not less than
monthly).
3.2
If the requirements of Section 2.3 above have been met with respect to a
particular Stockholder, remit, promptly after the deposit by the Purchaser of
the Closing Disbursement, the Note Satisfaction Shares or the Note Satisfaction
Cash, as the case may be, the applicable portion of the Exchange Fund as
follows:
(a)
with respect to the Share Consideration, issue to such Stockholder a Purchaser
Certificate for the number of shares of Purchaser Common Stock as set forth in
the Final Merger Consideration Allocation Schedule (and any cash payment in lieu
of fractional shares pursuant to the terms of the Merger Agreement and Section
3.8 hereof); and
(b)
with respect to the Note:
(i)
if the Note Satisfaction is approved by the stockholders of the Purchaser,
deliver to such Stockholder the pro rata number of Note Satisfaction Shares as
set forth in the Final Merger Consideration Allocation Schedule (and any cash
payment in lieu of fractional shares pursuant to the terms of the Merger
Agreement and Section 3.8 hereof); or
(ii)
if the Note Satisfaction is not approved by the stockholders of the Purchaser,
pay to such Stockholder the pro rata portion of the Note Satisfaction Cash as
set forth in the Final Merger Consideration Allocation Schedule;
and,
(iii)
pay to such Stockholder the Stockholder’s respective portion of the Note
Interest.
The
Exchange Agent will cooperate with the Purchaser as reasonably requested to
permit Purchaser to comply with any reporting requirements with respect to the
payments described in this Section 3.2.
3.3
With respect to any payment in cash described in the foregoing Section 3.2 from
the Exchange Fund to any Stockholder, such remittances by Computershare will be
made without interest and will be by bank check or wire transfer as indicated on
the applicable Letter of Transmittal. The Exchange Agent is entitled
to and will deduct and withhold from the Exchange Fund or any other amounts
otherwise payable pursuant to this Agreement to any Stockholder such amounts as
the Computershare is required to withhold with respect to the making of such
payment under the United States Internal Revenue Code of 1986, as amended (the
“Code”), or any
provision of state or local tax law. To the extent that amounts are
properly withheld, such withheld amounts will be treated for all purposes of
this Agreement as having been paid to such Stockholder. Upon the
delivery of Purchaser Certificates in exchange for the Certificates, the
Exchange Agent will physically cancel the Certificates and send such
Certificates to the Purchaser upon termination of the Agreement.
3.4
If appropriate, deliver any cash payments by first class mail under the
provisions of the Exchange Agent’s first class mail bond protecting Exchange
Agent from loss or liability arising out of the non-receipt or non-delivery of
such cash payment or arising out of the replacement thereof, for any deliveries
where market value does not exceed such amount will be delivered by registered
mail or overnight mail and will be insured separately for the replacement value
of its contents at the time of mailing.
3.5
If an Exchange Fund payment or certificate exchange is to be made by
Computershare or as applicable in a name other than that of the person in whose
name a surrendered Certificate is registered, then Computershare will make no
payment until the Letter of Transmittal with respect to the Certificate so
surrendered has been properly endorsed or accompanied by appropriate stock
powers, in either case signed exactly as the name of the registered holder(s)
appears on the Certificate by the registered holder thereof, and the Letter of
Transmittal or Stock powers are affixed with a signature guarantee from a
guarantor participating in a signature guarantee program approved by The
Securities Transfer Association.
3.6
To have the right to follow and to act upon any reasonable amendments,
modifications or supplements to these instructions, and upon any further
reasonable instructions in connection with the Exchange, any of which may be
given to the Exchange Agent by an officer of the Purchaser or such other person
or persons as the Purchaser will designate in writing.
3.7
On or before January 31st of the year following the year of payment, the
Exchange Agent will prepare and mail to each Stockholder, other than
Stockholders who demonstrate their status as nonresident aliens in accordance
with United States Treasury Regulations (each a “Foreign
Stockholder”), a Form 1099-B reporting the cash received (or deemed
received) as of the year of payment, in accordance with Treasury
Regulations. The Exchange Agent will also prepare and file copies of
such Forms 1099-B by magnetic tape with the Internal Revenue Service on or
before February 28th of the year following the year of payment, in accordance
with Treasury Regulations. If the Exchange Agent has not received
notice from the surrendering Stockholder of such Stockholder’s TIN, or if such
TIN has not been certified as correct and relates to a post-1983 account, then
the Exchange Agent will deduct and withhold 28% backup withholding tax from any
payment made to such Stockholder (other than a Foreign Stockholder) pursuant to
Section 3406 of the Code. With respect to each Foreign Stockholder,
the Exchange Agent will report, and as required, withhold and remit any taxes
that the Exchange Agent determines to be required by law or
regulation. Should any issue arise regarding federal income tax
reporting or withholding pursuant to the four immediately preceding sentences,
the Exchange Agent will take such action as the Purchaser instructs in writing
as long such action is in compliance with the Code.
3.8
No fractional shares of Purchaser Common Stock will be issued in connection with
the Exchange and in lieu thereof each Stockholder who would otherwise be
entitled to a fraction of a share of Parent Common Stock (after aggregating all
fractional shares of Purchaser Common Stock to be received by such holder) will
be paid an amount of cash (rounded to the nearest cent) equal to the product of
such fraction multiplied by the Purchaser Stock Price.
3.9
Computershare will provide the Purchaser with an estimate of the funds required
to pay for fractional shares. The Purchaser will furnish to
Computershare the funds estimated necessary to enable Computershare to make such
payments. Computershare will have no obligation to make cash payments
or payments in lieu of fractional shares unless the Purchaser will have provided
the necessary funds to pay in full all amounts due and payable with respect
thereto.
3.10
The Purchaser acknowledges that the bank accounts maintained by Computershare in
connection with the services provided under this Agreement will be in its name
and that Computershare may receive investment earnings in connection with the
investment at Computershare’s risk and for its benefit of funds held in those
accounts from time to time. Stockholders of the Purchaser, the
Surviving Company and Target Company will not receive interest on any deposits
or cash payment.
4.
Information and
Reports. Upon Purchaser’s
request, the Exchange Agent will forward to the Purchaser and the Stockholder
Representative, at the address listed below or subsequently provided, and to
such other persons as the Purchaser may designate, a periodic report of the
items presented for Exchange (i.e., the Exchange Agent’s Paid/Unpaid
Report). Each such report will include the number of shares of Target
Company capital stock validly surrendered to the Exchange Agent, the number of
shares of Purchaser Common Stock disbursed and the amount of any cash
paid. Upon the Purchaser’s written request, the Exchange Agent will
use reasonable efforts to prepare a report of the number of shares of Target
capital stock which have been improperly surrendered to the Exchange Agent
(previous, current period and total) and the status of efforts, if any, by the
holder and/or the Exchange Agent to resolve the related irregularities and/or
defects. Upon Purchaser’s request, the Exchange Agent will also send
statements to the Purchaser reflecting activity in the Exchange Fund for the
time period so requested by the Purchaser.
5.
Concerning the
Exchange Agent.
The
Exchange Agent:
5.1
Will have no duties or obligations other than those specifically set forth
herein or as may subsequently be requested of the Exchange Agent by the
Purchaser with respect to the Exchange and agreed upon by the Exchange
Agent;
5.2
May rely on and will be held harmless by the Purchaser in acting in good faith
upon any certificate, instrument, opinion, notice, letter, facsimile
transmission, telegram or other document, or any security delivered to it, and
reasonably believed by it to be genuine and to have been signed by the proper
party or parties;
5.3
May rely on and will be held harmless in acting upon written or oral
instructions from the Purchaser with respect to any matter relating to its
acting as Exchange Agent specifically covered by this Agreement;
and
5.4
May consult with counsel satisfactory to it (including counsel for the
Purchaser) and will be held harmless in relying on the written advice or opinion
of such counsel in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion of such
counsel.
6.
Compensation of the
Exchange Agent by the Purchaser.
The Purchaser
will pay fees for the services rendered hereunder, as set forth in the Fee
Schedule attached hereto as Exhibit
D. The Exchange Agent will also be entitled to reimbursement
from the Purchaser for all reasonable and necessary expenses paid or incurred by
it in connection with the administration by the Exchange Agent of its duties
hereunder up to $10,000 in the aggregate and any
amount of such expenses exceeding $10,000 in the aggregate will
require the advance approval of the Purchaser in writing.
7.
Reminder
Mailing.
The Exchange
Agent will, at the direction in writing of the Purchaser, coordinate and mail a
reminder notice to Stockholders who have not participated in the Exchange on a
date approximately one to two months subsequent to the Effective
Time. Upon receipt of such written notification from the Purchaser,
the Exchange Agent will, as promptly as practicable, mail by first class mail,
postage prepaid, to each Stockholder who has not as of the date of mailing
participated in the Exchange: (a) a stockholder letter from the
Company, and/or (b) a Letter of Transmittal and a self-addressed envelope for
use by the stockholder in the remittance of his or her
Certificate(s). This provision will be subject to the fee and expense
provision of Section 6 above.
8.
Unclaimed Property and
Lost Stockholders.
The Exchange
Agent will report unclaimed property to each state in compliance with state laws
and will comply with Section 17Ad-17 of the Securities Exchange Act of 1934, as
amended, for lost stockholders. The Exchange Agent will charge the
Purchaser its standard fees plus out-of-pocket expenses (including the cost of
due diligence mailings) for such services.
9.
Indemnification/Limitation
of Liability.
The Purchaser
covenants and agrees to indemnify and to hold the Exchange Agent harmless
against any costs, expenses (including reasonable fees of its legal counsel),
losses or damages, which may be paid, incurred or suffered by or to which it may
become subject, arising from or out of, directly or indirectly, any claims or
liability resulting from its actions as Exchange Agent (including as Exchange
Agent the provision of services under Sections 7 and 8) pursuant hereto;
provided, that such covenant and agreement does not extend to, and the Exchange
Agent will not be indemnified with respect to, such costs, expenses, losses and
damages incurred or suffered by the Exchange Agent as a result of, or arising
out of, its negligence or willful misconduct.
Promptly
after the receipt by the Exchange Agent of notice of any demand or claim or the
commencement of any action, suit, proceeding or investigation, the Exchange
Agent will, if a claim in respect thereof is to be made against the Purchaser,
notify the Purchaser thereof in writing. The Purchaser will be
entitled to participate at its own expense in the defense of any such claim or
proceeding, and, if it so elects at any time after receipt of such notice, it
may assume the defense of any suit brought to enforce any such claim or of any
other legal action or proceeding.
The
Exchange Agent will be responsible for and will indemnify and hold the Purchaser
harmless from and against any and all losses, damages, costs, charges, counsel
fees, payments, expenses and liability arising out of or attributable to the
Exchange Agent’s refusal or failure to comply with the terms of this Agreement,
or which arise out of Exchange Agent’s negligence or willful misconduct or which
arise out of the breach of any representation or warranty of the Exchange Agent
hereunder; provided, however, that Exchange Agent’s aggregate liability during
any term of this Agreement with respect to, arising from, or arising in
connection with this Agreement, or from all services
provided or omitted to be provided under this Agreement, whether in contract, or
in tort, or otherwise, is limited to, and will not exceed, the amounts paid
under this Agreement by the Purchaser to Exchange Agent as fees and charges,
including reimbursable expenses.
Promptly
after the receipt by the Purchaser of notice of any demand or claim or the
commencement of any action, suit, proceeding or investigation, the Purchaser
will, if a claim in respect thereof
is to be made against the Exchange Agent, notify the Exchange Agent thereof in
writing. The Exchange Agent will be entitled to participate at its
own expense in the defense of any such claim or proceeding, and, if it so elects
at any time after receipt of such notice, it may assume the defense of any suit
brought to enforce any such claim or of any other legal action or
proceeding.
For the purposes of this Section 9,
the term “expense or loss” means any amount paid or payable to satisfy any
claim, demand, action, suit or proceeding settled with the express written
consent of the party against which any such demand, claim, action, suit,
proceeding or investigation is brought, which consent will not be unreasonably
withheld, and all reasonable costs and expenses, including, but not limited to,
reasonable counsel fees and disbursements, paid or incurred in investigating or
defending against any such claim, demand, action, suit, proceeding or
investigation.
10.
Furthur
Assurance.
From
time-to-time and after the date hereof, the Purchaser will deliver or cause to
be delivered to the Exchange Agent such further documents and instruments and
will do and cause to be done such further acts as the Exchange Agent will
reasonably request (it being understood that the Exchange Agent will have no
obligation to make any such request) to carry out more effectively the
provisions and purposes of this Exchange Agent Agreement, to evidence compliance
herewith or to assure itself that it is protected in acting
hereunder.
11.
Term and
Termination.
This
Agreement will remain in effect until the earliest to occur of (i) the exchange
by all Stockholders of their Certificates or the report to the appropriate
state(s) of all unclaimed checks for cash payments as unclaimed property; (ii)
the termination by either party upon a material breach of this Agreement which
remains uncured for 30 days after written notice of such breach has been
provided; or (iii) the passing of 30 days’ after the delivery of written notice
of termination by either party to the other. Upon the effective date
of such termination, all cash and other payments, and all other property then
held by the Exchange Agent hereunder, will be delivered by it to such successor
agent or as otherwise will be designated in writing by the
Purchaser. Upon termination of the Agreement, the Exchange Agent will
retain all canceled Certificates and related documentation as required by
applicable law. Any portion of the Merger Consideration which remains
undistributed upon the termination of this Agreement will be delivered to the
Purchaser and only the Purchaser will disburse any such undistributed Merger
Consideration after the termination of this
Agreement. Notwithstanding the foregoing, on the date that is 180
days after the Effective Time any portion of the Exchange Fund that remains
undistributed will be delivered to the Purchaser, provided that the Purchaser
has given the Stockholder Representative prior written notice of such delivery,
and any holder of a Certificate who has not previously surrendered its
Certificate(s) for exchange pursuant to the terms of the Merger Agreement and
this Agreement will be entitled to receive, upon demand, only from the
Purchaser, disbursement of its pro rata portion of the Merger
Consideration.
12.
Notices.
Until
further notice in writing by either party hereto to the other party, all written
reports, notices and other communications between the Exchange Agent and the
Purchaser required or permitted hereunder will be delivered or mailed
by first class mail, postage prepaid, telecopier or overnight courier
guaranteeing next day delivery, addressed as follows:
If
to the Purchaser, to:
PLX
Technologies, Inc.
000
X. Xxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Attn: Chief
Financial Officer
With
a copy to:
Xxxxxxx
X. Xxxxxxxx
Xxxxx
& XxXxxxxx LLP
Two
Xxxxxxxxxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxxxxxxx, XX 00000
If
to the Exchange Agent, to:
Computershare
Trust Company, N.A.
c/o
Computershare, Inc.
000
Xxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn: Reorganization
Department
13.
Governing
Law.
This
Agreement will be governed by and construed in accordance with the laws of The
Commonwealth of Massachusetts and will inure to the benefit of and the
obligations created hereby will be binding upon the successors and permitted
assigns of the parties hereto.
14.
Assignment.
14.1
Except as provided in Section 14.2 below, neither this Agreement nor any rights
or obligations hereunder may be assigned by either party without the written
consent of the other party.
14.2
The Exchange Agent may, without further consent on the part of the Purchaser,
subcontract with other subcontractors for systems, processing, telephone and
mailing services, and post-merger clean up activities, as may be required from
time to time; provided, however, that
the Exchange Agent will be as fully responsible to the Purchaser for the acts
and omissions of any subcontractor as it is for its own acts and
omissions.
14.3
Except as explicitly stated elsewhere in this Agreement, nothing under this
Agreement will be construed to give any rights or benefits in this Agreement to
anyone other than the Exchange Agent and the Purchaser and the duties and
responsibilities undertaken pursuant to this Agreement will be for the sole and
exclusive benefit of the Exchange Agent and the Purchaser.
16.
Amendment.
This
Agreement may not be changed orally or modified, amended or supplemented without
an express written agreement executed by each of the parties
hereto.
17.
Counterparts.
This
Agreement may be executed in separate counterparts, including counterparts
transmitted by facsimile or electronic transmission, each of which when executed
and delivered will be an original, but all such counterparts will together
constitute but one and the same instrument.
18.
Third Party
Beneficiaries.
This
Agreement does not constitute an agreement for a partnership or joint venture
between the Exchange Agent and the Purchaser. Neither party will make
any commitments with third parties that are binding on the other party without
the other party’s prior written consent.
19.
Force
Majeure.
In the event
either party is unable to perform its obligations under the terms of this
Agreement because of acts of God, terrorist acts, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other cause
reasonably beyond its control, such party will not be liable for damages to the
other for any damages resulting from such failure to perform or otherwise from
such causes. Performance under this Agreement will resume when the
affected party or parties are able to perform substantially that party’s
duties.
20.
Consequential
Damages.
Neither party
to this Agreement will be liable to the other party for any consequential,
indirect, special or incidental damages under any provision of this Agreement or
for any consequential, indirect, penal, special or incidental damages arising
out of any act or failure to act hereunder even if that party has been advised
of or has foreseen the possibility of such damages.
21.
Severability.
If any
provision of this Agreement will be held invalid, unlawful, or unenforceable,
the validity, legality, and enforceability of the remaining provisions will not
in any way be affected or impaired.
22.
Confidentiality.
The Exchange
Agent and the Purchaser agree that all books, records, information and data
pertaining to the business of the other party which are exchanged or received
pursuant to the negotiation or the carrying out of this Agreement including the
fees for services set forth in the attached schedule will remain confidential,
and will not be voluntarily disclosed to any other person, except as may be
required by law.
23.
Survival.
All
provisions of Sections 9 – 13, 18, 20, and 22 – 24 will survive any termination,
for any reason, of this Agreement.
24.
Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties hereto and
supersedes any prior agreement with respect to the subject matter hereof whether
oral or written.
IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed by their respective
officers, hereunto duly authorized, as of the date first above
written.
|
“Computershare”
Computershare,
Inc., a Delaware corporation
By:
/s/ Xxx XxXxxx
Name:
Xxx XxXxxx
Title:
President
|
“Purchaser”
PLX
Technology, Inc., a Delaware corporation
By: /s/
Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Chief Financial
Officer
|
|
“Trust
Company”
Computershare
Trust Company, N.A., a national banking association
By:
/s/ Xxx XxXxxx
Name:
Xxx XxXxxx
Title:
President
|
