EXHIBIT 10.7
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), is effective this
30th day of June, 1995, by and among DSP GROUP, INC., a Delaware corporation
("DSPG"), KENWOOD CORPORATION, a Japanese corporation ("Kenwood"), TOMEN
ELECTRONICS CORP., a Japanese corporation ("Tomen"), and NOGATECH, INC., a
California corporation ("Xxxx").
RECITALS
A. DSPG is the owner of two thousand (2,000) shares of Common
Stock of Xxxx (the "Common Stock"), and four million four hundred forty-four
thousand four hundred forty-four (4,444,444) shares of Series A Preferred
Stock of Xxxx (the "Preferred Stock", and together with the Common Stock, the
"Shares").
B. Scitex Corporation, Ltd ("Scitex"), DSPG's predecessor in
interest to one thousand (1,000) shares of Common Stock and two million
(2,000,000) shares of Preferred Stock (collectively, the "Scitex Shares") and
DSPG entered into a Preincorporation Agreement (the "Preincorporation
Agreement") dated December 31, 1992, for the formation of Xxxx.
C. DSPG California, Scitex and Xxxx entered into a Stock Purchase
Agreement effective January 1, 1993 (the "DSPG Stock Purchase Agreement"),
pursuant to which Scitex acquired the Scitex Shares from Xxxx.
D. Scitex, DSPG and Xxxx entered into a Stock Purchase Agreement,
effective April 24, 1994, pursuant to which DSPG acquired the Scitex Shares
from Scitex (the "Scitex Purchase Agreement", and together with the
Preincorporation Agreement (the "Ancillary Agreements")).
E. DSPG, Xxxx and its subsidiary Nogatech, Ltd. ("Xxxx Ltd")
entered into a Technology Retransfer Agreement (together with the documents
represented by the Exhibits thereto, the "Technology Retransfer Agreement"),
in the form attached hereto as Exhibit A, on June 29, 1995.
F. Subject to the terms and conditions hereof, DSPG desires to
sell to Kenwood and Tomen, and Kenwood and Tomen desire to acquire from DSPG
the Shares, all as set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter contained and other valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the
parties hereby agree as follows:
1. SALE AND PURCHASE OF SHARES.
a. THE KENWOOD PURCHASE. DSPG hereby agrees to sell,
assign, transfer, convey and deliver one thousand (1,000) shares of the
Common Stock and two million two hundred twenty-two thousand two hundred
twenty-two (2,222,222) shares of the Preferred Stock (collectively, the
"Kenwood Shares") to Kenwood, and Kenwood hereby agrees to purchase the
Kenwood Shares from DSPG for the purchase price (the "Kenwood Purchase
Price") of Seven Hundred Fifty Thousand United States Dollars (U.S. $750,000)
at the Closing (as defined below), payable by wire transfer to DSPG in
immediately available funds on the Closing Date (as defined below).
b. THE TOMEN PURCHASE. DSPG hereby agrees to sell, assign,
transfer, convey and deliver one thousand (1,000) shares of the Common Stock
and two million two hundred twenty-two thousand two hundred twenty-two
(2,222,222) shares of the Preferred Stock (collectively, the "Tomen Shares")
to Tomen, and Tomen hereby agrees to purchase the Tomen Shares from DSPG for
the purchase price (the "Tomen Purchase Price") of Seven Hundred Fifty
Thousand United States Dollars (U.S. $750,000), payable by wire transfer to
DSPG in immediately available funds on the Closing Date.
c. CLOSING. Subject to the terms and conditions hereof,
the closing of the purchase and sale of the Shares (the "Closing") shall be
held via facsimile transmittal and wire transfers through DSPG's counsel,
Pezzola & Xxxxxx, A Professional Corporation, on August 11, 1995 at 2:00
p.m., Pacific Standard Time, or at such other time and place upon which
Kenwood, Tomen and DSPG shall agree (the date of the Closing is herein
referred to as the "Closing Date").
d. AT THE CLOSING:
i) Kenwood shall deliver as full and complete
payment for the Kenwood Shares, the Kenwood Purchase Price;
ii) Tomen shall deliver as full and complete payment
for the Tomen Shares, the Tomen Purchase Price;
iii) DSPG shall deliver to Kenwood and Tomen their
respective original certificates of their respective Shares executed on the
reverse side of the certificates, or on assignments separate from
certificates, to show the transfer of the Kenwood Shares to Kenwood and the
transfer of the Tomen Shares to Tomen; and
iv) DSPG and Xxxx shall deliver a duly executed
Technology Retransfer Agreement to one another.
2. CONDITIONS PRECEDENT. As a condition precedent to the
obligations of the parties hereto, the parties must receive effective the
Closing Date a copy of an executed Mutual Release between DSPG and Xxxxxx
Hod, in the form attached hereto as Exhibit B.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASERS.
Kenwood and Tomen (together, the "Purchasers") each severally represent,
warrant and covenant to DSPG the following as of the date of this Agreement
and as of the Closing Date on its behalf:
a. PURCHASE ENTIRELY FOR OWN ACCOUNT. The Shares to be
purchased by each Purchaser will be acquired for investment for such
Purchaser's own account and not with a view to the resale or distribution of
any part thereof, and each Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the same. By
executing this Agreement, each Purchaser further represents that it does not
have any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participation to such person or to any third person,
with respect to any of its respective Shares.
b. RELIANCE UPON PURCHASERS' REPRESENTATIONS. Each
Purchaser understands that its respective Shares are not registered under the
Securities Act of 1933, as amended (the "Act"), on the grounds that the sale
provided for in this Agreement and the issuance of Shares hereunder is exempt
from registration under the Act, and that DSPG's reliance on such exemption
is based, in part, on each Purchaser's representations set forth herein.
Each Purchaser realizes that the basis for the exemption may not be present
if it has in mind merely acquiring its respective Shares for a fixed or
determinable period in the future, or for a market rise, or for sale if the
market does not rise.
c. RECEIPT OF INFORMATION. Each Purchaser believes it has
received all the information it considers necessary or appropriate for
deciding whether to purchase its respective Shares. Each Purchaser further
represents that it has had an opportunity to ask questions and receive
answers from Xxxx'x officers regarding the business, properties, prospects
and financial condition of Xxxx, and to obtain additional information (to the
extent Xxxx possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify the accuracy of any
information furnished to it or to which such Purchaser had access.
Specifically, each Purchaser acknowledges receipt of, among other things, the
Technology Retransfer Agreement.
d. INVESTMENT EXPERIENCE. Each Purchaser and its officers
are experienced in evaluating and investing in securities of companies in the
development stage and acknowledges that it is able to fend for itself, can
bear the economic risk of its investment, and has such knowledge and
experience in financial and
business matters that it is capable of evaluating the merits and risks of the
investment in its respective Shares.
e. RESTRICTED SECURITIES. Each Purchaser understands that
its respective Shares may not be sold, transferred or otherwise disposed of
without registration under the Act or an exemption therefrom, and that in the
absence of an effective registration statement covering such Shares, or an
available exemption from registration under the Act, such Shares must be held
indefinitely. In particular, each Purchaser is aware that its respective
Shares may not be sold pursuant to Rule 144 promulgated under the Act unless
all of the conditions of Rule 144 are met. Among the conditions for use of
Rule 144 is the availability of current information to the public about Xxxx.
Such information is not now available and each Purchaser understands that
Xxxx has no present plans to make such information available.
f. LEGENDS. To the extent applicable, each certificate or
other document evidencing any of the Shares shall be endorsed with
appropriate securities legends; and each Purchaser covenants that, except to
the extent such restrictions are waived by Xxxx, such Purchaser shall not
transfer its respective Shares represented by any such certificate without
complying with the restrictions on transfer described in the following legend
endorsed on such certificate:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED ABSENT AN
EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR COMPLIANCE WITH
RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND
ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED."
g. RISKS OF INVESTMENT. Each Purchaser represents that it:
(a) has such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of its prospective investment
in its respective Shares; (b) has received from DSPG all the information it
has requested and considers necessary or appropriate for deciding whether to
purchase its respective Shares, and has been given the opportunity to examine
all relevant documents and to ask questions of, and to receive answers from,
the management of Xxxx concerning Xxxx and its affairs, and to obtain any
additional information necessary to verify the accuracy of the information
given such Purchaser, and that no representations have been made to such
Purchaser concerning its respective Shares, Xxxx, its business, prospects or
other matters, except as expressly made herein; (c) has the ability to bear
the economic risks of its prospective investment; and (d) is able, without
materially impairing its financial condition, to hold its respective Shares
for an indefinite period of time and to suffer complete loss of its
investment.
h. CORPORATE AUTHORITY. Each Purchaser represents that it
has full corporate authority to purchase its respective Shares in accordance
with this Agreement, as evidenced by the signature binding such Purchaser on
the signature page hereinbelow and all other approvals necessary to purchase
its respective Shares.
i. CAPITALIZATION. Each Purchaser acknowledges that the
capitalization of Xxxx as of the Closing Date shall be as set forth on
Exhibit C attached hereto, and shall include options granted by Xxxx to
Messrs. Xxxxxx and Hod conditioned upon the Closing occurring. Additionally,
each Purchaser understands that Xxxx may be obligated to grant an additional
option for Twelve Thousand Five Hundred (12,500) shares of Common Stock at an
exercise price of Ten Cents ($0.10) per share to Xxxxxxx Xxxxxx.
j. DEBT TO CHIEF SCIENTIST. Each Purchaser acknowledges
and agrees to the following:
The unaudited June 30, 1995 financial statement (the "Financial
Statement") attached hereto as Exhibit D shows an obligation to the Chief
Scientist of Israel (the "Chief Scientist") of Xxx Xxxxxxx Xxxxx Xxxxxxxx
Xxxxxx Xxxxxx Dollars (U.S. $150,000) (the "Obligation"). This is the
initial payment that is now due to the Chief Scientist. The Chief
Scientist is owed sixteen percent (16%) of the royalty income received by
Xxxx from Zen Research, N.V. ("Zen"), up to an aggregate maximum of Four
Hundred Two Thousand United States Dollars (U.S. $402,000). DSPG has
caused Xxxx to pay Xxx Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars (U.S.
$150,000) of the Obligation to the Chief Scientist. Xxxx has entered
into an agreement with Zen to arrange for payment by Xxxx of all sums
still owing to the Chief Scientist.
k. Each Purchaser acknowledges and agrees that as of June
30, 1995, any prior arrangement for DSPG to loan money to Xxxx shall
terminate, and DSPG shall have no further arrangement requiring it to loan
any money to Xxxx.
4. REPRESENTATIONS OF DSPG. DSPG represents, warrants and
covenants to each Purchaser that:
a. OWNERSHIP. DSPG is the owner of the Shares. The Shares
have not been encumbered, pledged or mortgaged in any manner whatsoever. All
approvals necessary to transfer the respective Shares to each Purchaser have
been obtained. DSPG has the full corporate power to sell the Shares in
accordance with this Agreement, as evidenced by the signature binding DSPG on
the signature page hereinbelow.
b. TECHNOLOGY AGREEMENT. The Technology Retransfer
Agreement has been duly executed by DSPG.
c. ORGANIZATION AND CORPORATE POWER. Xxxx is a corporation
duly incorporated and validly existing under the laws of the State of
California, and Xxxx is qualified to do business in every jurisdiction in
which its ownership of property or conduct of business requires it to
qualify. Xxxx has all requisite corporate power and authority and all
material licenses, permits, and authorizations necessary to own and operate
its properties and to carry on its business as now conducted. The copies of
Xxxx'x charter documents and Bylaws furnished to Purchasers reflect all
amendments made thereto at any time prior to the date of this Agreement and
are correct and complete.
d. SUBSIDIARIES. Xxxx does not own or hold any rights to
acquire any shares of stock or any other security or interest in any other
corporation or entity, except for Nogatech Ltd., its wholly-owned Israeli
subsidiary.
e. CONDUCT OF BUSINESS; LIABILITIES. Xxxx is not in
default under, and no condition exists that with notice or lapse of time
would constitute a default of Xxxx under (i) any mortgage, loan agreement,
evidence of indebtedness, or other instrument evidencing borrowed money to
which Xxxx is a party or by which Xxxx or the properties of Xxxx are bound or
(ii) any judgment, order, or injunction of any court, arbitrator, or
governmental agency that would reasonably be expected to affect materially
and adversely the business, financial condition, or results of operations of
Xxxx taken as a whole.
f. FINANCIAL STATEMENTS. Except as disclosed in Section 9
herein, (i) the unaudited balance sheet and income statement of Xxxx as of
June 30, 1995, in the form attached to this Agreement as Exhibit D, fairly
presents the financial position of Xxxx as of June 30, 1995 (the "Financial
Statements"); and (ii) the Proforma Balance Sheet attached hereto as Exhibit
E sets forth Xxxx'x financial position after the effect of the Technology
Retransfer Agreement.
g. NO UNDISCLOSED LIABILITIES. Except for (i) liabilities
and obligations disclosed in Section 9 herein; (ii) liabilities and
obligations incurred in the ordinary course of business since June 30, 1995
("Statement Date"); and (iii) liabilities or obligations described in this
Agreement, neither Xxxx nor any of the property of Xxxx is subject to any
material liability or obligation that was required to be included or
adequately reserved against in the Financial Statements or described in the
notes thereto and was not so included, reserved against, or described.
h. ABSENCE OF CERTAIN CHANGES. Since the Statement Date
there has not been:
i) any material adverse change in the business,
financial condition, operations, or assets of Xxxx;
ii) any damage, destruction, or loss, whether covered
by insurance or not materially adversely affecting the properties or business
of Xxxx;
iii) any sale or transfer by Xxxx of any tangible or
intangible asset other than in the ordinary course of business, any mortgage
or pledge or the creation of any security interest, lien, or encumbrance on
any such asset, or any lease of property, including equipment, other than tax
liens with respect to taxes not yet due and contract rights of customers in
inventory;
iv) any material transaction not in the ordinary
course of business of Xxxx;
v) the making of any material loan, advance, or
guaranty to or for the benefit of any person except the creation of accounts
receivable in the ordinary course of business; or
vi) an agreement to do any of the foregoing.
i. TITLE AND RELATED MATTERS. Xxxx has good and marketable
title to all of its property, real and personal, and other assets included in
the Financial Statements (except properties and assets sold or otherwise
disposed of subsequent to the Statement Date in the ordinary course of
business or as contemplated in this Agreement), free and clear of all
security interests, mortgages, liens, pledges, charges, claims, or
encumbrances of any kind or character, except (i) statutory liens for
property taxes not yet delinquent or payable subsequent to the date of this
Agreement and statutory or common law liens securing the payment or
performance of any obligation of Xxxx, the payment or performance of which is
not delinquent, or that is payable without interest or penalty subsequent to
the date on which this representation is given, or the validity of which is
being contested in good faith by Xxxx; (ii) the rights of customers of Xxxx
with respect to inventory under orders or contracts entered into by Xxxx in
the ordinary course of business; (iii) claims, easements, liens, and other
encumbrances of record pursuant to filings under real property recording
statutes; and (iv) as described in the Financial Statements or the notes
thereto.
j. LITIGATION. There are no material actions, suits,
proceedings, orders, investigations, or claims pending or, to the best of
DSPG's and Xxxx'x knowledge, overtly threatened against Xxxx or any property
of either, at law or in equity, or before or by any governmental department,
commission, board, bureau, agency, or instrumentality.
k. TAX MATTERS. Xxxx has prepared in a substantially
correct manner and has filed all federal, state, local, and foreign tax
returns and reports heretofore required to be filed by
them and have paid all taxes shown as due thereon, and no taxing authority
has asserted any deficiency in the payment of any tax or informed Xxxx that
it intends to assert any such deficiency or to make any audit or other
investigation of Xxxx for the purpose of determining whether such a
deficiency should be asserted against Xxxx.
l. COMPLIANCE WITH LAWS. To the best of DSPG's knowledge,
Xxxx is, in the conduct of its business, in substantial compliance with all
laws, statutes, ordinances, regulations, orders, judgments, or decrees
applicable to them, the enforcement of which, if Xxxx was not in compliance
therewith, would have a materially adverse effect on the business of Xxxx,
taken as a whole. Neither DSPG nor Xxxx have received any notice of any
asserted present or past failure by Xxxx to comply with such laws, statutes,
ordinances, regulations, orders, judgments, or decrees.
m. DISCLOSURE. Neither this Agreement nor any of the
schedules, attachments, written statements, documents, certificates, or other
items prepared or supplied to Purchasers by or on behalf of Xxxx or DSPG with
respect to this purchase contain any untrue statement of a material fact or
omit a material fact necessary to make each statement contained herein or
therein not misleading.
n. PATENTS, TRADEMARKS, TRADE NAMES, ETC. To Xxxx'x best
knowledge, the use of its patents, trademark, trade name, service marks, and
copyrights by it does not materially infringe on any patents, trademarks, or
copyrights or any other rights of any person. To Xxxx'x best knowledge, it
has not operated and is not operating its business in a manner that infringes
the proprietary rights of any other person in any patents, trademarks, trade
names, service marks, copyrights, or confidential information.
5. RELEASE OF VARIOUS AGREEMENTS. Upon delivery to DSPG of the
payment for the Shares by each Purchaser:
a. DSPG RELEASE. DSPG releases any claims or rights that
it may have against Xxxx, or Xxxx'x subsidiary or affiliated companies,
concerning the Ancillary Agreements, and/or any other agreements (except in
connection with any representations and warranties made by Xxxx in this
Agreement and the Technology Retransfer Agreement and Xxxx'x obligations
under the Technology Retransfer Agreement) by and between DSPG and Xxxx, or
any of Xxxx'x subsidiaries, concerning Xxxx. Each of DSPG and Xxxx agree
that the pre-emptive rights in Section 7 of the DSPG Stock Purchase Agreement
no longer exists in favor of DSPG; that the Registration Rights stated in
Section 10 of the DSPG Stock Purchase Agreement shall no longer be effective
for DSPG but shall be transferred to its transferees; the right to choose
board seats stated in Section 9 of the DSPG Stock Purchase Agreement shall no
longer exist in favor of DSPG; any arrangement for DSPG to loan money to Xxxx
shall terminate as of June 30, 1995; and the
Technology Retransfer Agreement shall remain in full force and effect.
x. XXXX RELEASE. Xxxx releases any claims or rights that
it may have against DSPG, or DSPG's subsidiary or affiliated companies,
concerning the Ancillary Agreements, and/or any other agreements (except in
connection with any representations and warranties made by DSPG in this
Agreement) by and between DSPG and Xxxx, or any of DSPG's subsidiaries,
concerning DSPG, except as specifically set forth herein. In addition, Xxxx
releases DSPG from any agreement to provide services to Xxxx, including
without limitation, services for accounting, facilities, personnel support
and payroll.
6. DSPG TECHNOLOGY. Xxxx agrees that to the extent that it was
using technology and confidential information of DSPG which had been
disclosed to Xxxx by DSPG, Xxxx will discontinue such use, except to the
extent that such use is consistent with the terms of the Technology
Retransfer Agreement. Additionally, Xxxx agrees to return to DSPG on the
Closing Date, all technology and confidential information of DSPG which had
been delivered to Xxxx by DSPG, subject to the terms of the Technology
Retransfer Agreement.
7. EMPLOYEE MATTERS. DSPG represents and warrants to each
Purchaser and Xxxx, that it has no present intention of hiring employees of
Xxxx. DSPG agrees, for a period ending June 30, 1997, not to solicit or
recruit any employees of Xxxx.
8. DSPG GUARANTY.
a. REPLACEMENT GUARANTY. Purchasers shall use its best
efforts to either replace DSPG by August 31, 1995 as the guarantor under the
Guaranty (the "Guaranty"), dated November 3, 1994, issued by DSPG to the
lessor (the "Lessor") under the Lease, dated November 3, 1994, between Lessor
and Xxxx Ltd, as lessee, for the property located at Mivtza Kadesh 0, Xxxxx
Xxxxxx, 00000, Xxxxxx, or to obtain a satisfactory replacement (collectively,
the "Replacement Guaranty").
b. INDEMNIFICATION. From and after the Closing Date and
until a Replacement Guaranty has become effective (the "Replacement
Period"), Xxxx and Xxxx Ltd shall indemnify and hold DSPG, its successors and
assigns, harmless from, against and in respect of any and all loss, liability
and damage (including the payment of reasonable attorneys' fees), arising out
of or resulting from any and all losses, liabilities and obligations, or
claims or causes of action of any nature, arising during the Replacement
Period in connection with to the Guaranty.
9. CONTINGENT LIABILITY. The parties hereto acknowledge and
agree that (i) there is a contingent liability (the "Contingent Liability")
of Xxxx in the amount of up to $170,000
claimed by SCI Systems, Inc.("SCI") in connection with the return of certain
materials related to Xxxx purchase order number 89028; (ii) neither the
Contingent Liability nor the related inventory is reflected on Exhibits D or
E hereto; (iii) SCI has indicated that it may attempt to seek recovery of the
Contingent Liability from both Xxxx and DSPG; (iv) DSPG denies responsibility
for payment of any portion of the Contingent Liability; (v) Xxxx acknowledges
that Xxxx, rather than DSPG, is responsible for any amounts due SCI in
connection with the Contingent Liability;(vi) in the event that DSPG
determines or is required to pay any amounts to SCI in connection with the
Contingent Liability, DSPG shall give Xxxx fourteen (14) days written notice
prior to informing SCI of such determination or making any payment, as
applicable; and (vii) in the event SCI recovers any amount from DSPG in
connection with the Contingent Liability, Xxxx shall indemnify and hold DSPG
harmless from, against, and in respect of any and all loss, liability, and
damage (including the payment of reasonable attorney's fees), arising out of
or resulting from any and all losses, liabilities and obligations, or claims
or causes of action of any nature, in connection with the Contingent
Liability.
10. MISCELLANEOUS.
a. ENTIRE AGREEMENT. This Agreement and the Exhibits
hereto constitute the entire agreement and understanding between the parties
with respect to the subject matters herein, and supersede and replace any
prior agreements and understandings, whether oral or written between and
among them with respect to such matters. The provisions of this Agreement
may be waived, altered, amended or repealed, in whole or in part, only upon
the written consent of all parties to this Agreement.
b. SUCCESSORS AND ASSIGNS. Subject to any provisions
herein with regard to assignment, all covenants and agreements herein shall
bind and inure to the benefit of the respective heirs, executors,
administrators, successors and assigns of the parties hereto.
c. APPLICABLE LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of California,
applicable to contracts between California residents entered into and to be
performed entirely within the State of California.
d. ATTORNEYS' FEES; COSTS. In the event a party breaches
this Agreement, the breaching party shall pay all costs and attorneys' fees
incurred by the other party in connection with such breach, whether or not
any arbitration or litigation is commenced.
e. ARBITRATION. Any dispute between the parties arising
out of this Agreement shall be submitted to final and binding arbitration in
the City and County of Santa Xxxxx, State of California, under the Commercial
Arbitration Rules of the
American Arbitration Association then in effect, upon written notification
and demand of either party therefor. In the event either party demands such
arbitration, the American Arbitration Association shall be requested to
submit a list of prospective arbitrators consisting of persons experienced in
matters involving corporate law. The provisions of California Code of Civil
Procedure ?1283.05 and the laws of the State of California are incorporated
herein and shall be applicable to the arbitration. In making the award, the
arbitrator shall award recovery of costs and expenses of the arbitration and
reasonable attorneys' fees to the prevailing party. Any award may be entered
as a judgment in any court of competent jurisdiction. Should judicial
proceedings be commenced to enforce or carry out this provision or any
arbitration award, the prevailing party in such proceedings shall be entitled
to reasonable attorneys' fees and costs in addition to other relief. Either
party shall have the right, prior to receiving an arbitration award, to
obtain preliminary relief from a court of competent jurisdiction to: (i)
avoid injury or prejudice to that party; (ii) to protect the rights of any
party; or (iii) to obtain possession or property in order to avoid a material
risk of damage to or loss of that property.
f. NOTICES. All notices, requests, demands, instructions
or other communications required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been duly given
upon delivery, if delivered personally, or if given by prepaid telegram, or
mailed first-class, postage prepaid, registered or certified mail, return
receipt requested, shall be deemed to have been given seventy-two (72) hours
after such delivery, to the address set forth on the signature page below.
Either party hereto may change the address to which such communications are
to be directed by giving written notice to the other party hereto of such
change in the manner above provided.
g. SURVIVAL. The representations, warranties, covenants
and agreements made herein shall survive the closing of the transactions
contemplated hereby.
h. DESCRIPTIVE HEADINGS. The headings used herein and in
any of the documents attached hereto as exhibits, are descriptive only and
for the convenience of identifying provisions, and are not determinative of
the meaning or effect of any such provisions.
i. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which may be executed by less than all of the
parties, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.)
j. VENUE. ANY ACTION OR PROCEEDING ARISING DIRECTLY OR
INDIRECTLY FROM THIS AGREEMENT SHALL BE LITIGATED OR ARBITRATED AS
APPROPRIATE IN A STATE OR FEDERAL COURT IN THE COUNTY OF SANTA XXXXX, STATE
OF CALIFORNIA.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
DSP GROUP, INC. KENWOOD CORPORATION
a Delaware corporation a Japanese corporation
0000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000 2-5, Shibuya 1-chome, Xxxxxxx-xx
Xxxxx, 000, XXXXX
By: /s/ Xxxxx Xxxxxxx By: /s/ Takes Suzuki
--------------------------------- ---------------------------------
Xxxxx Xxxxxxx (Signature)
Corporate Secretary
Derecker
---------------------------------
(Print Name & Title)
NOGATECH, INC. TOMEN ELECTRONICS CORP.
a California corporation a Japanese corporation
0000 Xxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000 ------------------------------------
------------------------------------
------------------------------------
(Print Address)
By: /s/ Xxx Xxxxx By: /s/ Shizeyuki Nazawa
--------------------------------- ---------------------------------
Xxx Xxxxx (Signature)
President
President
---------------------------------
(Print Name & Title)
EXHIBIT A
FORM OF TECHNOLOGY RETRANSFER AGREEMENT
EXHIBIT B
FORM OF MUTUAL RELEASE
EXHIBIT C
CAPITALIZATION CHART
ISSUED CAPITAL STOCK
(AFTER SALE BY DSPG OF ALL ITS INTEREST)
ON A FULLY-DILUTED BASIS(1)
Shareholder Type of Security Number of Shares Percentage
----------- ---------------- ---------------- ----------
Kenwood/Tomen Series A Preferred 4,444,444 71.46%
Kenwood/Tomen Common Stock 2,000 0.03%
Xxxxxx Hod Common Stock 565,000 9.08%
Xxxxxx Hod Options for Common Stock 750,000 12.06%
Xxxxx Xxxxxx Options for Common Stock 451,825 7.26%
Xxxx Xxxxxxxx Common Stock 6,250 0.10%
TOTALS 6,219,519 100.00%
(1) Does not include potential grant of option for 12,500 shares to Xxxxxxx
Xxxxxx.
EXHIBIT D
FINANCIAL STATEMENTS
EXHIBIT E
PROFORMA FINANCIAL STATEMENTS
