EXHIBIT 2.1
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SHARE FOR SHARE EXCHANGE AGREEMENT
BETWEEN: (1) K.U. LEUVEN, an entity ("een instelling sui generis")
organized and existing under the laws of Belgium, having its
registered office at Xxxx Xxxxx 00, 0000 Xxxxxx, Xxxxxxx,
(2) Xx. XXXX XXXXXXXXX, residing at Xxxxxxxxxxx 00, 0000
Xxxxxxxxx, Xxxxxxx,
(3) XXX XXXXXXXX, residing at Xxxxx Xxxxxxxxx 0, 0000 Xxxxxx,
Xxxxxxx,
(4) Xx. XXX XXXXXXXXXX, residing at Xxxxxxxxxxxxxxx 0, 0000
Xxxxxxx, Xxxxxxx,
(5) XXX XXXXXX, residing at Xxxxx Xxxxxxxx 00, 0000 Xxxxxx,
Xxxxxxx,
(6) V.I.V. (VLAAMSE INVESTERINGSVENNOOTSCHAP N.V.), a company
organized and existing under the laws of Belgium, having its
registered office at 0X Xxxxxxxxxxx, 0000 Xxxxxxxxxx,
Xxxxxxx,
(7) Xx. XXX XXXXXXX, residing at Xxxxxx 00, 0000 Xxxxxxxx,
Xxxxxxx, being all represented for the purposes of this
Agreement by Xxx Xxxxxxxxxx, as their duly appointed
attorney-in-fact, hereinafter collectively referred to as
the "Sellers";
AND: (8) TRANSWITCH CORPORATION, a company organized and existing
under the laws of the State of Delaware, having its main
place of business at 0 Xxxxxxxxxx Xxxxx, Xxxxxxx, XX 00000,
X.X.X.,
represented for the purposes of this Agreement by Xxxxxx
Xxxx, as its duly appointed attorney-in-fact,
hereinafter referred to as the "Purchaser";
WHEREAS:
1. The Sellers as a group own 1,604 shares in EASICS, a company organized and
existing under the laws of Belgium, having its registered office at 00
Xxxxxxxxxxxxxxx, 0000 Xxxxxx, Xxxxxxx (hereinafter referred to as the
"Company").
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2. The Purchaser is a US company specialized in the design and sale of
semiconductors which has an interest in expanding its European design
resources.
3. The Sellers wish to sell to the Purchaser and the Purchaser wishes to
purchase from the Sellers all of their shares in the Company, being all of
the Company issued shares, upon the terms and subject to the conditions set
forth in this Agreement.
4. The Purchaser has been a customer of the Company since the Company was
founded in 1992. Representatives of the Purchaser met with Company
management at an off-site location in Brussels to conduct a limited due
diligence review during the month of March 2000.
NOW, THEREFORE, the parties have agreed as follows:
1 Definitions and Interpretation
1.1 Definitions
1.1.1 For the purposes of this Agreement, the following terms shall
have the meanings specified or referred to in this Clause 1.1.1:
"Affiliated Company" means an affiliated company ("verbonden
onderneming") as defined in the Royal Decree of October 8, 1976
on Annual Accounts of Companies, as amended.
"Agreement" means this share for share exchange agreement between
the Sellers and the Purchaser.
"Annual Accounts" means the Company's audited annual accounts for
the business year ended on March 31, 1999, as contained in
Disclosure Schedule 12.1.
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"Belgian Company Laws" means the "gecoordineerde wetten op de
handelsvennootschappen" co-odinated on November 30, 1935.
"Beneficiary" means the Purchaser or the Company as set out in
Clause 7.1.1.
"Closing" means the transfer of ownership of the Shares pursuant
to Clause 4.1 and completion of the Sellers' Closing Actions and
the Purchaser's Closing Actions pursuant to Clauses 4.3 and 4.4,
respectively.
"Closing Actions" means the Sellers' Closing Actions and the
Purchaser's Closing Actions.
"Closing Date" means the date of execution of this Agreement.
"Company" means EASICS N.V., as referred to in the first recital.
"Disclosure Schedules" means the Schedules to this Agreement
disclosing:
(i) information constituting exceptions to or qualifying the
Representations; and
(ii) details of other matters referred to in this Agreement.
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"Interim Accounts" means the Company's unaudited accounts for the
business year ended on March 31, 2000, as contained in Disclosure
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Schedule 12.1.
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"Loss" has the meaning set out in Clause 7.1.1.
"Managing Sellers" refers to Messrs. Callaerts, Xxxxxxxx,
Xxxxxxxxxx and Zegers.
"Non-Compete Period" has the meaning set out in Clause 8.4.1.
"Non-Solicitation Period" has the meaning set out in Clause
8.4.3.
"Parties" means the Sellers (as a group) and the Purchaser (each
of them being referred to individually as a "Party").
"Purchase Price" means the aggregate price for the Shares as
defined in Clause 3.1.
"Purchaser's Closing Actions" means the actions to be taken by
the Purchaser on the Closing Date, as set out in Clause 4.4.
"Purchaser's Representations" means the representations made by
the Purchaser pursuant to Schedule 6.
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"Sellers' Representations" means the representations made by the
Sellers pursuant to Schedule 5.
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"Sellers' Closing Actions" means the actions to be taken by the
Sellers on the Closing Date, as set out in Clause 4.3.
"Shares" means the 1,604 shares in the Company which are being
sold by the Sellers to the Purchaser under this Agreement, as
referred to in Clause 2.1.
"Third Party Claim" has the meaning set out in Clause 7.5.1.
"TranSwitch Common Stock" means the common stock, USD 0.001 par
value per share, of TranSwitch Corporation.
1.1.2 Whenever a Sellers' Representation is made "to the Sellers'
Knowledge" or is qualified by any similar expression:
(i) reference is made not only to the knowledge or substantial
and reasonable belief of any of the Sellers, but also to
that of any current director or executive officer
("directeur") of the Company; and
(ii) the Sellers (and the other persons referred to in paragraph
(i) above) shall be deemed to have knowledge of any fact
that a reasonable person placed in the same circumstances
would be expected to know as a result of the conduct of his
business responsibilities, without having conducted any
special investigation of the matters referred to in the
relevant Sellers' Representation, other than such
investigations that a reasonable person would be required
to conduct in discharging his business responsibilities.
1.1.3 For all purposes of this Agreement (and not only for the purposes
of the Sellers' Representations), a legal entity (including any
of the Parties as applicable) shall be deemed to have knowledge
of a particular fact if any current or former director or
executive
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officer ("directeur") of such legal entity has, or at any time
during their investment in the Company had, actual knowledge of
such fact.
1.1.4 Unless otherwise defined herein:
(i) any action, fact or event shall be deemed to be "Material"
if it involves or may reasonably be expected to involve an
aggregate obligation or liability (of any nature whatsoever)
in excess of BEF 2,000,000, for the individual or legal
entity concerned; and
(ii) any agreement to which any individual or legal entity
(including in particular the Company) is a party or any
commitment undertaken by such person shall be deemed to be
"Material" if (a) it involves or may reasonably be expected
to involve an aggregate obligation or liability (of any
nature whatsoever) for such person in excess of BEF
2,000,000, or if (b) it is not capable of being terminated
by such person without compensation at any time with less
than three month's notice.
1.1.5 Unless otherwise provided herein, an action or transaction taken
or entered into by a legal entity (including in particular the
Company) shall be deemed to have been taken or entered into in
the "Ordinary Course of Business" only if such action or
transaction falls within the scope of customary operational
activities of such company.
1.2 Interpretation
1.2.1 The titles and headings included in this Agreement are for
convenience only and do not express in any way the intended
understanding of the Parties. They shall not be taken into
account in the interpretation of the provisions of this
Agreement.
1.2.2 The Schedules and Disclosure Schedules to this Agreement form an
integral part thereof and any reference to this Agreement
includes the Schedules and the Disclosure Schedules and vice
versa.
1.2.3 The original version of this Agreement has been drafted in
English. Should this Agreement be translated into Dutch or any
other language, the English version shall prevail among the
Parties to the fullest extent permitted by Belgian law, provided,
however, that whenever Dutch translations of certain words or
expressions are contained in the original English version of this
Agreement, such translations shall be conclusive in determining
the Belgian legal concept(s) to which the Parties intended to
refer.
1.2.4 When using the expressions "shall use its best efforts" or "shall
use its best endeavors" (or any similar expression or any
derivation thereof) in this Agreement, the Parties intend to
refer to the Belgian law concept of "middelenverbintenis".
1.2.5 When using the words "shall cause" or "shall procure that" (or
any similar expression or any derivation thereof), the Parties
intend to refer to the Belgian law concept of "sterkmaking".
1.2.6 The words "herein", "hereof", "hereunder", hereby", "hereto",
"herewith" and words of similar import shall refer to this
Agreement as a whole and not to any particular clause, paragraph
or other subdivision.
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1.2.7 The words "include", "includes", including" and all forms and
derivations thereof shall mean including but not limited to.
1.2.8 All terms defined in this Agreement shall have the same meaning
regardless of whether they are used in the singular or plural
number.
1.2.9 For the calculation of a period of time, such period shall start
the day following the day on which the event triggering such
period of time has occurred. The expiry date shall be included in
the period of time. If the expiry date is a Saturday, a Sunday or
a bank holiday in Belgium, the expiry date shall be postponed
until the next business day in Belgium. Unless otherwise provided
herein, all periods of time shall be calculated in calendar days.
1.2.10 Unless otherwise provided herein, all references to a fixed time
of a day shall mean Brussels time.
2 Sale and Purchase of the Shares
2.1 The Shares
2.1.1 Subject to the terms and conditions of this Agreement, each of
the Sellers hereby sells to the Purchaser such number of shares
in the Company as set out in Clause 2.1.2, and the Purchaser
hereby purchases all of these shares from the Sellers.
2.1.2 The Shares are divided as follows:
(i) 348 registered shares, owned by K.U. Leuven;
(ii) 238 registered shares, owned by Xx. Xxxx Xxxxxxxxx;
(iii) 238 registered shares, owned by Xxx Xxxxxxxx;
(iv) 238 registered shares, owned by Xx. Xxx Xxxxxxxxxx;
(v) 238 registered shares, owned by Xxx Xxxxxx;
(vi) 160 registered shares, owned by V.I.V.; and
(vii) 144 registered shares, owned by Xx. Xxx Xxxxxxx.
2.1.3 The ownership of the Shares shall be transferred to the Purchaser
on the Closing Date, upon execution of the transfer instructions
referred to in Clause 3.2.4.
2.1.4 On the Closing Date, the Purchaser shall acquire the Shares free
and clear of all pledges, security interests, usufructs
("vruchtgebruik"), options or third party rights of any kind.
2.1.5 The sale contemplated hereunder is indivisible and it shall be
valid only if it applies to all of the Shares. No partial
enforcement of this Agreement shall be allowed.
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2.2 Rights Attaching to the Shares (Dividend Rights)
The Shares shall be sold together with all rights and advantages attaching
thereto, including the right to the full amount of all dividends which
might be allocated to the Shares for the current business year (which
started on April 1, 2000) and for the business year ended March 31, 2000.
2.3 Preemption Rights
Each of the Sellers hereby waives irrevocably any and all rights of
preemption over the Shares conferred to them either by virtue of the
Articles of Association of the Company or any agreement (including any
shareholders' agreement).
3 Purchase Price
3.1 Aggregate Purchase Price
3.1.1 The aggregate purchase price for the Shares shall be a number of
shares of TranSwitch Common Stock equal to the quotient of USD
20,000,000 less all costs described in Clause 3.1.2, divided by
the average closing price of the TranSwitch Common Stock as
reported on the NASDAQ National Market during the twenty trading
days ending on the second trading day preceding the Closing Date
(the "Purchase Price") (i.e., 252,691 shares of TranSwitch Common
Stock and a cash payment of USD 610.08 instead of fractional
shares). Set out in Schedule 3.1.1(i) is the calculation of the
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average closing price of the TranSwitch Common Stock. Set out in
Schedule 3.1.1(ii) is the allocation of the aggregate Purchase
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Price among the Sellers.
3.1.2 The costs taken into account for the purposes of Clause 3.1.1 are
all those accounting, legal, investment banking and other costs
and expenses connected with the transactions contemplated
hereunder that have been or will be charged to the Company (i.e.,
USD 236,430).
3.2 Payment of the Purchase Price
3.2.1 Subject to the provisions of Clause 3.2.2, payment of the
Purchase Price shall be made as follows:
(i) 90% of the total number of shares of TranSwitch Common Stock
to be issued to the Sellers on the Closing Date shall be
delivered to the Sellers within three to five business days
following the Closing Date; and
(ii) 10% of the total number of shares of TranSwitch Common Stock
to be issued to the Sellers on the Closing Date shall be
held in escrow as described in Clause 3.3.
3.2.2 The number of shares of TranSwitch Common Stock specified in
Clause 3.2.1 shall be appropriately adjusted for any stock split,
reverse split, stock dividend, reorganization, recapitalization
or other like change with respect to the TranSwitch Common Stock
occurring after the date of this Agreement.
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3.2.3 The shares of TranSwitch Common Stock shall be allocated among
the Sellers pro rata the respective number of Shares sold by each
of them hereunder, according to Schedule 3.1.1(ii).
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3.2.4 On the Closing Date, the Purchaser shall deliver to the Sellers a
copy of the irrevocable letter of instruction to the Purchaser's
stock transfer agent instructing it to deliver to each of the
Sellers such number of shares of TranSwitch Common Stock to be
issued to each of them pursuant to this Agreement, within three
to five business days following the Closing Date. Notwithstanding
the foregoing, the ownership of all of the shares of TranSwitch
Common Stock to be issued to the Sellers shall be transferred to
the Sellers on the Closing Date.
3.3 Escrow
In order to secure payment of any amount that might be due by the Sellers
to the Purchaser under Clause 7 or any other provision of this Agreement,
10% of the total number of shares of TranSwitch Common Stock issued to the
Sellers pursuant to this Agreement will be held in escrow, in accordance
with the Escrow Agreement to be executed on the Closing Date.
3.4 Selling Restrictions on the Shares of TranSwitch Common Stock
Each of the Sellers undertakes not to resell any of the shares of
TranSwitch Common Stock unless (i) in accordance with the provisions
promulgated by the United States Securities and Exchange Commission
pursuant to the Securities Act of 1933 as amended, (ii) pursuant to an
effective registration under the Securities Act of 1933, or (iii) pursuant
to an available exemption from registration under the Securities Act of
1933; and otherwise in accordance with this Agreement.
3.5 Accounting Treatment
The Parties agree that the transaction contemplated hereunder is intended
to be accounted for on the "pooling-of-interests" method under the
requirements of Opinion No. 16 (Business Combinations) of the Accounting
Principles Board and the related interpretations of the American Institute
of Certified Public Accountants (APB No. 16) as amended by Statements of
the Financial Accounting Standards Board.
4 Closing
4.1 Date and Place
The transfer of ownership of the Shares to the Purchaser (the "Closing")
shall take place at the offices of Dieux, Geens & Vennoten, Brussels,
Belgium on the date of execution of this Agreement (the "Closing Date").
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4.2 Pre-Closing Actions
The Purchaser acknowledges that each of the following actions has been
completed prior to the execution of this Agreement:
4.2.1 The Purchaser has received a copy of final invoices, or
confirmation of final amounts of fees and expenses, for the costs
as referred to in Clause 3.1.2.
4.2.2 The Purchaser has received a letter from the Purchaser's
accountants confirming that the sale of the Shares contemplated
in this Agreement will be accounted for as pooling-of-interests.
4.2.3 This Agreement has been approved by the Purchaser's Board of
Directors.
4.2.4 The Purchaser has delivered to the Sellers a copy of the
Purchaser's Stock Option Plan.
4.3 Obligations of the Sellers on the Closing Date
On the Closing Date, the Sellers shall do all of the following (the
"Sellers' Closing Actions"):
4.3.1 each Seller or a duly authorized attorney-in-fact of each Seller
shall record the transfer of the Shares owned by such Seller to
the Purchaser in the Company's share register, and shall sign the
Company's share register to that effect;
4.3.2 the Sellers shall deliver to the Purchaser:
(i) executed copies of the Escrow Agreement as referred to in
Clause 3.3;
(ii) executed copies of the Registration Rights Agreement;
(iii) a letter from the Sellers' accountants confirming that the
sale of the Shares contemplated in this Agreement will be
accounted for as pooling-of-interests;
(iv) executed copies of Sellers' releases;
(v) letters of resignation of all of the directors of the
Company;
(vi) copies of the Amendment to their Employment Agreement
executed by each of the Company's employees; and
(vii) an opinion from Sellers' legal counsel confirming that the
Company does not comply with minimum requirements for a
HSR filing in the U.S.
4.3.3 each of the Managing Sellers shall deliver to the Purchaser
executed copies of his Employment Agreement.
4.4 Obligations of the Purchaser on the Closing Date
On the Closing Date, the Purchaser shall do all of the following (the
"Purchaser's Closing Actions"):
4.4.1 the Purchaser shall deliver to the Sellers the irrevocable letter
of instruction to the Purchaser's stock transfer agent, as
referred to in Clause 3.2.4;
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4.4.2 the Purchaser or a duly authorized attorney-in-fact of the
Purchaser shall sign the Company's share register to accept
transfer of the Shares from the Sellers;
4.4.3 the Purchaser shall deliver to each of the Sellers:
(i) executed copies of the Escrow Agreement as referred to in
Clause 3.3;
(ii) executed copies of the Registration Rights Agreement;
(iii) a receipt for the Shares, in the form attached as Schedule
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4.5;
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4.4.4 the Purchaser shall hold an Extraordinary General Meeting of the
Company having the agenda set out below, and shall adopt
resolutions approving each item on such agenda:
(i) acknowledgement of the resignation of all of the directors
of the Company; and
(ii) appointment of new directors of the Company.
4.5 Post-Closing Delivery of the Sellers
Promptly upon receiving the shares of TranSwitch Common Stock in accordance
with Clause 3.2.1(i), the Sellers shall deliver to the Purchaser a receipt
for such shares in the form attached as Schedule 4.5.
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5 Representations of the Sellers
5.1 General Principles
5.1.1 The Sellers jointly and severally represent to the Purchaser as
of the date of this Agreement that the representations set out in
Schedule 5 (the "Sellers' Representations") are true, accurate
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and complete.
5.1.2 Each of the Sellers' Representations shall be separate and
independent and shall not be limited by reference to any other
provision of Schedule 5.
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5.2 Sellers' Disclosures
The contents and scope of any Sellers' Representation shall be limited only
by:
5.2.1 those matters which are set out in the Clause containing such
Sellers' Representation; and
5.2.2 the information which is disclosed and the documents which are
contained in any of the Disclosure Schedules.
6 Representations of the Purchaser
6.1.1 The Purchaser represents to each of the Sellers as of the date of
this Agreement that the representations set out in Schedule 6
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(the "Purchaser's Representations") are true, accurate and
complete.
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6.1.2 Each of the Purchaser's Representations shall be separate and
independent and shall not be limited by reference to any other
provision of Schedule 6.
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7 Indemnification
7.1 General Principles
7.1.1 General Indemnification Obligations of the Sellers
Subject to the limitations and other conditions set out in this
Clause 7, the Sellers jointly and severally agree and undertake
to indemnify the Purchaser or, if the Purchaser so chooses, the
Company (a "Beneficiary" and together with the Purchaser, the
"Beneficiaries") for any damage (including connected expenses),
loss, liability, debt, penalty or payment incurred, borne or made
by the Purchaser or the Company (a "Loss") which would not have
been incurred, borne or made by them if every Sellers'
Representation had been true, accurate and complete.
7.1.2 General Indemnification Obligations of the Purchaser
Subject to the limitations and other conditions set out in this
Clause 7, the Purchaser agrees and undertakes to indemnify the
Sellers for any Loss which would not have been incurred by them
if every Purchaser's Representation had been true, accurate and
complete.
7.1.3 Computation of Losses incurred by the Purchaser
For the purposes of this Clause 7, any Loss incurred by the
Company shall be deemed to be incurred by the Purchaser in the
same amount unless the Purchaser establishes that it has suffered
a higher Loss (it being understood that there can be only one
Beneficiary for any particular Loss).
7.1.4 Nature of any Payment to Purchaser
Any amount paid by the Sellers to the Purchaser under this Clause
7 shall constitute a reduction of the Purchase Price.
7.1.5 Tax Gross-Up
If any tax authority imposes on the Beneficiary a tax on any
amount paid to the Beneficiary under this Clause 7, then the
amount payable by the Sellers shall be grossed up by such amount
as will ensure that after payment of such tax there shall be left
a sum equal to the amount which would otherwise be payable under
this Agreement.
7.1.6 Assignment of Sellers' Warranty to Third Parties
Any person to whom the Purchaser would transfer any or all of the
Shares is hereby constituted a third party beneficiary pursuant
to Article 1121 of the Belgian Civil Code
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("beding ten behoeve van een derde") for the purposes of this
Clause 7. Accordingly, such transferee shall be entitled to bring
any claim under this Clause 7 against the Sellers directly.
7.1.7 Company as Third Party Beneficiary
The Company is hereby constituted a third party beneficiary
pursuant to Article 1121 of the Belgian Civil Code ("beding ten
behoeve van een derde") for the purposes of this Clause 7.
7.2 Limitation of Sellers' Liability
7.2.1 Time Limitations
The Sellers shall not be liable under this Clause 7 in respect of
any claim unless a notice of the claim is given by the Purchaser
to the Sellers that satisfies the requirements of Section 2 of
the Escrow Agreement within the earlier of (i) one year following
the Closing Date or (ii) the date on which KPMG shall have
delivered to the Purchaser the audited consolidated financial
statements of the Purchaser for the year ending December 31,
2000.
7.2.2 Minimum Claims
(i) The Sellers shall not be liable under this Clause 7 in
respect of any claim arising from any single circumstance
where the amount of the Loss does not exceed BEF
1,000,000.
(ii) For the purposes of this Clause 7.2.2, claims based on
similar legal grounds shall be aggregated.
(iii) Where the amount of the Loss exceeds BEF 1,000,000,
subject as provided elsewhere in this Clause 7.2 (and in
particular subject to Clause 7.2.3), the total amount of
the Loss shall be recoverable from the Sellers.
7.2.3 Aggregate Minimum Claims
(i) The Sellers shall not be liable under this Clause 7 in
respect of any claim unless the aggregate amount of the
Losses for which the Sellers would otherwise be liable
(disregarding the provisions of this Clause 7.2.3) exceeds
BEF 5,000,000.
(ii) Where the aggregate amount of the Losses exceeds BEF
5,000,000, subject as provided elsewhere in this Clause
7.2, the aggregate amount of all Losses shall be
recoverable from the Sellers.
7.2.4 Maximum Liability
Without prejudice to Clause 7.2.5, the aggregate liability of the
Sellers under this Clause 7 shall not exceed that part of the
Purchase Price which is held in escrow pursuant to Clause 3.3.
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7.2.5 Fraud and Intentional Misconduct
None of the limitations contained in this Clause 7.2 shall apply
to any claim which arises or is increased as a consequence of
fraud or intentional misconduct ("bedrog") by the Sellers (or by
the Company on or before the Closing Date).
7.2.6 Provisions in the Accounts
The Sellers shall not be liable under this Clause 7 in respect of
any claim if and to the extent that the matter giving rise to the
claim is properly accounted for, provided for or referred to in
the Annual Accounts or the Interim Accounts.
7.2.7 Tax Savings arising from the Losses
Any amount for which the Sellers would otherwise have been liable
under this Clause 7 in respect of any Losses suffered by the
Purchaser or the Company shall be reduced by the amount (if any)
by which any tax for which the Purchaser or the Company would
otherwise have been liable is actually reduced or extinguished as
a result of the matter giving rise to such Losses, provided that
such effective tax savings are made in respect of the taxable
period in which such matter was taken into account in the
Company's tax return.
7.2.8 Insurance Proceeds
(i) Any amount for which the Sellers would otherwise have been
liable under this Clause 7 in respect of any Losses
suffered by the Purchaser or the Company shall be reduced
by the net amount of any insurance proceeds actually
received by the Company in respect of such Losses.
(ii) The net amount of such insurance proceeds shall be equal
to the amount received by the Company, less (a) any
reasonable costs and expenses incurred by the Company in
respect of such insurance proceeds, and (b) the aggregate
amount, if any, by which an independent insurance broker,
jointly appointed by the Parties, estimates that the
Company's premiums are likely to be increased during the
two years following the making of the insurance claim.
7.3 Limitation of Purchaser's Liability
7.3.1 Time Limitations and Notification of the Claim
(i) The Purchaser shall not be liable under this Clause 7 in
respect of any claim unless a notice of the claim (setting
out in reasonable detail the grounds for such a claim and
a first estimate of the amount claimed) is given by the
Sellers to the Purchaser within three months after the
Sellers became aware of such grounds and in any event
within the earlier of (i) one year following the Closing
Date or (ii) the date on which KPMG shall have delivered
to the Purchaser the audited consolidated financial
statements of the Purchaser for the year ending December
31, 2000.
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(ii) Failure of the Sellers to notify the Purchaser of a claim
known to the Sellers in the manner provided above shall
not relieve the Purchaser of any liability it may have in
respect of such a claim except to the extent that it has
suffered a prejudice as a consequence of such failure.
7.3.2 Minimum Claims
(i) The Purchaser shall not be liable under this Clause 7 in
respect of any claim arising from any single circumstance
where the amount recoverable does not exceed BEF
1,000,000.
(ii) For the purposes of this Clause 7.3.2, claims based on
similar legal grounds shall be aggregated.
(iii) Where the amount of the Loss exceeds BEF 1,000,000,
subject as provided elsewhere in this Clause 7.3 (and in
particular subject to Clause 7.3.3), the total amount
shall be recoverable from the Purchaser.
7.3.3 Aggregate Minimum Claims
(i) The Purchaser shall not be liable under this Clause 7 in
respect of any claim unless the aggregate amount for which
the Purchaser would otherwise be liable (disregarding the
provisions of this Clause 7.3.3) exceeds BEF 5,000,000.
(ii) Where the aggregate amount exceeds BEF 5,000,000, subject
as provided elsewhere in this Clause 7.3, the aggregate
amount shall be recoverable from the Purchaser.
7.3.4 Maximum Liability
Without prejudice to Clause 7.3.5, the aggregate liability of the
Purchaser under this Clause 7 shall not exceed USD 2,000,000.
7.3.5 Fraud and Intentional Misconduct
None of the limitations contained in this Clause 7.3 shall apply
to any claim which arises or is increased as a consequence of
fraud or intentional misconduct ("bedrog") by the Purchaser.
7.4 Claims by the Purchaser
7.4.1 If the Purchaser becomes aware of any action, fact or event that
may give rise to a claim against the Sellers under this Clause 7,
the Purchaser shall give a notice to the Sellers in accordance
with Section 2 of the Escrow Agreement, which Section shall apply
to all matters relating to the resolution of such claim, subject
only to the provisions of Clauses 7.1 (General Principles), 7.2
(Limitation of Sellers' Liability), 7.4.2 (Investigation by the
Sellers) and 7.5 hereof (Third Party Claims).
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7.4.2 Investigation by the Sellers
In connection with any claim made by the Purchaser, the Purchaser
shall, and shall cause the Company to:
(i) allow the Sellers and their advisors to investigate the
actions, facts or events alleged to give rise to such claim
and whether and to what extent any Loss is payable in respect
of such claim, provided that no such investigation shall
unreasonably interfere with the Company's business; and
(ii) give, subject to their being paid all reasonable costs and
expenses, all such information and assistance to the Sellers
and their advisors, including (a) access to the Company's
premises and personnel, upon reasonable advance notice and
during normal business hours, and (b) the right to examine and
copy all such contracts, books and records, and other
documents and data as the Sellers and their advisors may
reasonably request, subject to the Sellers agreeing in such
form as the Purchaser may reasonably require to keep all such
information confidential and to use it only for the purpose of
investigating and defending the claim in question.
7.5 Third Party Claims
7.5.1 If the claim notified by the Purchaser to the Sellers in accordance
with Clause 7.4 arises as a result of or in connection with a claim
by or a liability to a third party (a "Third Party Claim") then:
(i) the Purchaser shall, and shall cause the Company to, (a)
consult with the Sellers as is reasonably practicable in
relation to the conduct of any proceedings arising out of the
Third Party Claim, and (b) ensure that Sellers' remarks shall
be taken into account in so far as such remarks are
reasonable; provided that all decisions in relation to such
proceedings shall be made by the Purchaser or the Company;
(ii) the Purchaser shall, and shall cause the Company to, inform
the Sellers on a regular basis of the progress of such
proceedings;
(iii) no admission of liability shall be made by the Purchaser or
the Company and the Third Party Claim shall not be settled
without the Sellers' prior written consent, which consent may
not be refused without a valid reason (especially in so far as
disputes with clients of the Company are concerned); provided
that, in any event, Sellers' prior written consent shall not
be required if such admission of liability or settlement is in
the legitimate commercial or corporate interests
("vennootschaps-belang") of the Company, and the legitimate
interests of the Sellers have been taken into consideration in
a balanced way.
7.5.2 In any event, the Purchaser or the Company shall be allowed to make
any admission of liability or enter into any settlement agreement as
they consider appropriate without the prior written consent of the
Sellers' if the Sellers fail to assert their rights in accordance
with Clause 7.5.1(iii) within fifteen days from the date of any
notification by the Purchaser or the Company to the Sellers of the
envisaged admission of liability or settlement.
-14-
7.5.3 At the Purchaser's request, the Sellers shall appoint a
representative authorized to represent all of them in the
consultations foreseen in this Clause 7.5.
8 Covenants of the Parties Extending after the Closing Date
8.1 Further Assurances
The Parties agree and undertake to furnish to each other such further
information, to execute such other documents, and to do such other things
(before or after the Closing Date), as the other Party may reasonably
request for the purposes of carrying out the intent of this Agreement.
8.2 Confidential Nature of this Agreement and Announcements
8.2.1 The existence, subject matter and contents of this Agreement are
confidential.
8.2.2 Subject to Schedule 8.2.2, each Party is prohibited from disclosing
--------------
all or any part of this Agreement or even its existence at any time,
and no announcement in connection with the existence or the subject
matter of this Agreement (including any announcement to the
Company's employees, customers or suppliers) shall be made, without
the express prior written consent of all Parties (which consent
shall not be unreasonably withheld or delayed), except:
(i) in the event that either Party seeks indemnification or any
other remedy from the other Party under this Agreement in any
proceedings, insofar as the use of such information is strictly
necessary for the proceedings; or
(ii) to the extent strictly necessary in order to allow either Party
to comply with any legal requirement to make any announcement
or to provide information to any public authority (including
without limitation the U.S. SEC and NASDAQ), provided, however,
that such Party shall consult with the other Parties before
complying with such an obligation.
8.2.3 For the avoidance of doubt, the Parties agree that the existence of
this Agreement shall no longer be of a confidential nature, once an
announcement has been in compliance with this Clause 8.2.
8.2.4 Subject to Schedule 8.2.2, the Parties shall consult with each other
--------------
concerning the means by which the Company's employees, customers,
and suppliers and others having dealings with the Company shall be
informed of this Agreement, and the Purchaser shall have the right,
at its request, to be present when any such communication is made.
8.2.5 The Parties shall take all reasonable actions to ensure that no
accidental or unauthorized disclosure of confidential information
occurs.
8.2.6 If the Closing does not take place, the Purchaser shall return to
the Sellers all written information (and copies thereof) stamped as
"confidential" when originally furnished by the Sellers or the
Company in connection with this Agreement.
-15-
8.3 Confidential Information of the Company
Each of the Sellers severally but not jointly agrees and undertakes to keep
in confidence any information relating to the business and affairs of the
Company (including any and all trade secrets, technical information on the
Company's products, customer lists, price lists, financial projections and
budgets, employees' salaries and other information concerning the
personnel) and not to disclose such information to any third party at any
time, unless and to the extent that such information is or becomes
generally known to and available for use by the public other than as a
result of the Sellers' fault or the fault of any other person bound by a
duty of confidentiality to the Purchaser or the Company.
8.4 Non-Competition and Non-Solicitation
8.4.1 Each of the Managing Sellers and Xxx Xxxxxxx severally but not
jointly agrees and undertakes not to do any of the things set out in
Clause 8.4.2, for a period of two years as from the Closing Date
(the "Non-Compete Period"), except with the Purchaser's prior
written consent (which consent shall not be unreasonably delayed),
regardless of whether the Seller is acting:
(i) for himself or on behalf of any individual, company or other
legal entity;
(ii) alone or in conjunction with any other person;
(iii) in his own capacity or as a director, manager, partner or
shareholder of any company or other legal entity, or as an
employee, consultant or agent of any individual, company or
other legal entity;
(iv) directly or indirectly through agents, intermediaries,
Affiliated Companies or any other individual, company, legal
entity or other vehicle (including any joint venture); or
(v) in any other capacity and in any other manner whatsoever.
8.4.2 Pursuant to Clause 8.4.1, each of the Managing Sellers and Xxx
Xxxxxxx shall refrain from participating in any business which is
competitive with the business of the Company as a designer of
semiconductors for the broad band, telecommunications and
datacommunications markets.
8.4.3 Each of the Sellers severally but not jointly agrees and undertakes
not to do any of the things set out in Clause 8.4.4, for a period of
two years as from the Closing Date (the "Non-Solicitation Period"),
except with the Purchaser's prior written consent (which consent
shall not be unreasonably delayed), regardless of whether the Seller
is acting:
(i) for himself or on behalf of any individual, company or other
legal entity;
(ii) alone or in conjunction with any other person;
(iii) in his own capacity or as a director, manager, partner or
shareholder of any company or other legal entity, or as an
employee, consultant or agent of any individual, company or
other legal entity;
-16-
(iv) directly or indirectly through agents, intermediaries,
Affiliated Companies or any other individual, company, legal
entity or other vehicle (including any joint venture); or
(v) in any other capacity and in any other manner whatsoever.
8.4.4 Pursuant to Clause 8.4.3, each of the Sellers shall refrain from:
(i) inducing or attempting to induce any person who is or, at any
time, was a customer, supplier or other business relation of
the Company to cease doing business with the Company, to
materially reduce its business with the Company or to do
business with the Company on less favorable terms, or in any
way interfering with the relationship between the Company and
any of its customers, suppliers or other business relations;
(ii) inducing or attempting to induce any prospective customer of
the Company not to do business with the Company;
(iii) inducing or attempting to induce any employee of the Company
(other than employees at a secretarial level) to leave his
employ with the Company, regardless of whether such employee
would commit a breach of contract by leaving his employ, or in
any way interfering with the relationship between the Company
and any of its employees;
(iv) employing (or otherwise engaging as an independent contractor
or in any other capacity) any employee of the Company or any
person who was an employee of the Company at any time during
the Non-Solicitation Period, other than (a) employees at a
secretarial level and (b) employees who have been laid off by
the Company in the absence of a cause ("dringende reden");
(v) inducing or attempting to induce any director of the Company
or any person having a consultancy or similar agreement with
the Company to leave his position with the Company or to
terminate his agreement with the Company, or in any way
interfering with the relationship between the Company and any
of its directors or any of the persons referred to in this
paragraph.
8.4.5 Notwithstanding the foregoing, it is agreed that the Sellers may:
(i) continue to hold the shareholdings that are set out next to
their names in Schedule 8.4.5 and vote these shares at any
--------------
shareholders' meeting as they see fit; and
(ii) acquire shares in any publicly listed company whose business
is competing with that of the Company up to a maximum of 10%
of the issued shares in such listed company and vote these
shares at any shareholders' meeting as they see fit.
Furthermore, the Purchaser acknowledges that Xx. Xxx Xxxxxxx is
chairman, chief executive officer, president and /or minority
shareholder of ICOS Vision Systems N.V. and of ICOS Vision Systems
Corporation N.V. It is also acknowledged that these companies do not
engage in activities that are considered competitive with the
activities referred to in Clause 8.4.2; however, either of these two
companies could take actions that are not
-17-
compatible with the non-solicitation provisions of Clause 8.4.4.
Therefore, and for the avoidance of doubt, it is hereby agreed that
any such actions by either of the aforementioned companies will not
be attributable to Xx. Xxx Xxxxxxx and will not give rise to claims
against Xx. Xxx Xxxxxxx under this Clause 8.4 provided that Xx. Xxx
Xxxxxxx in any capacity whatsoever does not vote in favor of any
such actions, does not recommend or otherwise approve such actions
and recuses himself from any such actions.
Furthermore, the Purchaser acknowledges that K.U. Leuven and V.I.V.
now and in the future may hold shares and be a director in companies
that could take actions that are not compatible with the non-
solicitation provisions of Clause 8.4.4. Therefore, and for the
avoidance of doubt, it is hereby agreed that any such actions by
such companies will not be attributable to K.U. Leuven or V.I.V. and
will not give rise to claims against K.U. Leuven or V.I.V. under
this Clause 8.4 provided that K.U. Leuven and V.I.V. in any capacity
whatsoever do not vote in favor of any such actions, do not
recommend or otherwise approve such actions.
8.4.6 If the employment agreement of any of the Managing Sellers is
terminated by the Company other than for cause ("dringende reden"),
the Non-Compete Period and the Non-Solicitation Period will be
reduced to one year from the Closing Date as far as such Managing
Seller is concerned.
8.4.7 The non-compete and non-solicitation covenants set out in this
Clause 8.4 are geographically limited to the Benelux, Israel and the
U.S.
8.4.8 If the Purchaser becomes aware of any infringement of the provisions
of this Clause 8.4 by a Seller, the Purchaser shall give a notice to
such Seller enjoining him to cease any such infringement within
fifteen days. In case of failure to comply with this injunction,
such Seller shall pay to the Purchaser damages ("schadevergoeding")
whose amount is hereby agreed by the Parties as a lump sum of BEF
5,000,000, to be increased with BEF 200,000 for each day, or part of
a day, that such infringement continues 15 days after the above-
mentioned notice has been given by the Purchaser, without prejudice
to the Purchaser's right to claim additional damages, if it can
establish that it has incurred a loss ("schade") exceeding the above
amounts.
8.4.9 The Sellers acknowledge that the provisions of this Clause 8.4 are
reasonable and necessary to protect the legitimate interests of the
Purchaser. However, if any of the provisions of this Clause 8.4
shall ever be held to exceed the limitations in duration,
geographical area or scope, or other limitations imposed by
applicable law, they shall not be nullified but the Parties shall be
deemed to have agreed to such provisions that conform with the
maximum permitted by applicable law, and any provision of this
Clause 8.4 exceeding such limitations shall be automatically
reformed accordingly.
8.5 Release of Directors' Liability
The Purchaser agrees and undertakes to vote at the Company's Annual General
Meeting relating to the business years ending on March 31, 2000 and March
31, 2001 all Shares in favor of a resolution releasing the Company's
directors who resigned on the Closing Date from any liability arising from
the performance of their duties.
-18-
Execution Copy
--------------
9 Miscellaneous
9.1 Amendments and Waivers
9.1.1 No amendment of this Agreement shall be effective unless in writing
and signed by duly authorized representatives of all Parties.
9.1.2 No failure or delay of a Party to exercise any right or remedy under
this Agreement shall be considered a final waiver of (i) such right
or remedy or (ii) any other right and remedy under this Agreement'.
9.1.3 Except as provided otherwise herein, no waiver shall be effective
unless given in writing and signed by a duly authorized
representative of the Party giving the waiver.
9.2 Appointment of Managing Sellers' Representative
The Managing Sellers hereby irrevocably appoint Xx. Xxx Xxxxxxxxxx, who
accepts this appointment, as their attorney-in-fact ("mandataire" /
"lasthebber") to give and receive all notices (but not to give any consent,
to settle any dispute, to exercise any of the rights or to fulfill any
obligation of the Managing Sellers under this Agreement). The attorney-in-
fact shall not have any powers, however, in so far as a breach of the post-
Closing covenants set out in Clause 8 are concerned.
9.3 Notices
9.3.1 Any notice in connection with this Agreement must be in writing in
English and shall be validly given with respect to each Party if:
(i) delivered by hand (with written confirmation of receipt) to
the persons listed hereinafter;
(ii) sent by fax (with confirmation received by registered mail
or an internationally recognized overnight delivery service
within three business days) to the fax numbers and addresses
set out hereinafter; or
(iii) sent by registered mail or an internationally recognized
overnight delivery service to the addresses set out
hereinafter;
or to such other addressee, fax number or address as a Party may
notify to the other Parties in accordance with this Clause 9.3.
-19-
If to the Managing Name: Xxx Xxxxxxxxxx
------------------
Sellers:
-------
Address: Xxxxxxxxxxxxxxx 0, 0000 Xxxxxxx, Xxxxxxx
Fax number: +32-16-395.619
Copy: Xxxx Xxxxxxxxx
Adress: Xxxxxxxxxxx 00, 0000 Xxxxxxxxx Xxxxxxx
Fax number: +32-3-383.5569
If to K.U. Leuven: Name: K.U. Leuven
-----------------
Address: Xxxxx Xxxxxxxxx, Xxxxxxxxxxxxx 00, 0000
Xxxxxx , Xxxxxxx
Attention: Professor Xxxxxxxx Xxxxxxxxx
Fax number: +32-16-32.65.15
If to V.I.V.: Name: VLAAMSE INVESTERINGS-VENNOOTSCHAP N.V.
------------ (V.I.V.)
Address: Xxxxxxxxxxx 0X, 0000 Xxxxxxxxxx, Xxxxxxx
Attention: The Board of Directors
Fax number: +32-9-221.3469
If to Xxx Xxxxxxx: Name: Xxx Xxxxxxx
-----------------
Address: Xxxxxx 00, 0000 Xxxxxxxx, Xxxxxxx
Fax number: +32-16-252.961
If to Purchaser: Name: TranSwitch Corporation
---------------
Address: 0 Xxxxxxxxxx Xxxxx, Xxxxxxx, XX 00000,
X.X.X.
Attention: Xxxxxx Xxxx
Copy: Xxxxxx XxXxxxxx
Fax number: x000-000-0000
9.3.2 Any notice shall be effective upon receipt and shall be deemed to
have been received:
-20-
(i) at the time of delivery, if delivered by hand or overnight
delivery service;
(ii) on the next working day in the place to which it is sent, if
sent by fax (provided, however, that if no confirmation is
received within three business days, the notice shall be
deemed to have been received on the date such confirmation is
received);
(iii) on the first working day following the date of posting if
sent by registered mail, provided both the sender and the
addressee reside in Belgium; or
(iv) three business days (in the place to which it is sent)
following the date of posting if sent by registered mail when
either the sender or the addressee does not reside in
Belgium.
9.4 Interest
Interest shall accrue automatically (without any formal notice to pay being
required) on any overdue amount under this Agreement at the Belgian legal
rate from the due date up to the date of payment.
9.5 Assignment of Rights and Obligations
9.5.1 Neither Party may assign all or part of its rights and obligations
under this Agreement to any third party (through a sale, a capital
contribution, a donation, or any similar transaction) without the
express prior written consent of the other Parties (which consent
shall not be unreasonably withheld or delayed). As long as such
consent has not been obtained, the assigning Party shall continue to
be liable for all obligations that it purported to assign (without
prejudice to any other right or remedy that the other Parties may
have for breach of this Clause 9.5.1).
9.5.2 Subject to the restrictions set out in this Clause 9.5, the
provisions of this Agreement shall inure to the benefit of and shall
be binding upon the Parties and their respective heirs, successors
and assigns.
9.6 Costs
Each Party shall bear all costs and expenses (including legal, accounting,
broker and investment banking costs and expenses) incurred by it in
connection with the preparation, negotiation, execution and performance of
this Agreement.
9.7 Severability
9.7.1 If any provision in this Agreement shall be held to be illegal,
invalid or unenforceable, in whole or in part, under any applicable
law, such provision shall be deemed not to form part of this
Agreement, and the legality, validity or enforceability of the
remainder of this Agreement shall not be affected.
-21-
9.7.2 If such illegal, invalid or unenforceable provision affects the
entire nature of this Agreement, each Party shall use its best
efforts to immediately negotiate in good faith a legally valid
replacement provision.
9.8 Entire Agreement
9.8.1 This Agreement (along with the documents referred to therein)
contains the entire agreement between the Parties with respect to
the matters to which it refers and contains everything the Parties
have negotiated and agreed upon within the framework of this
Agreement.
9.8.2 It replaces and annuls any agreement, communication, offer,
proposal, or correspondence, oral or written, exchanged or
concluded between the Parties relating to the same subject matter.
9.9 Governing Law
This Agreement shall be governed by and construed in accordance with
Belgian law. For the avoidance of doubt, the Escrow Agreement, the
Registration Rights Agreement and the Employment Agreements referred to in
this Agreement shall be governed by the law specified in such agreements.
9.10 Arbitration
9.10.1 All disputes arising out of or in connection with this Agreement,
that the Parties are unable to settle amicably, shall be finally
settled under the CEPANI Rules of Arbitration, without prejudice
to the arbitration provisions in the Escrow Agreement.
9.10.2 The arbitration panel shall be composed of three arbitrators.
9.10.3 The arbitration shall be held in Brussels. The proceedings and
award shall be in the English language.
9.11 Counterparts
This Agreement may be executed in one or more counterparts, each of which
when so executed shall be deemed to be an original copy of this Agreement,
and all of which, when taken together, shall be deemed to constitute one
and the same instrument.
-22-
Done in Brussels, on May 9, 2000, in nine originals. Each party acknowledges
receipt of its own original. One original has been delivered to State Street
Bank and Trust Company as Escrow Agent.
/s/ Xxx Xxxxxxxxxx
------------------------------
K.U. Leuven
Name: Xxx Xxxxxxxxxx
Title: Attorney-in-fact
/s/ Xxx Xxxxxxxxxx /s/ Xxx Xxxxxxxxxx
------------------------------ -----------------------------------
Xx. Xxxx Xxxxxxxxx Xxx Xxxxxxxx
Represented by: Xxx Xxxxxxxxxx, as Represented by: Xxx Xxxxxxxxxx, as
Attorney-in-fact Attorney-in-fact
/s/ Xxx Xxxxxxxxxx /s/ Xxx Xxxxxxxxxx
------------------------------ -----------------------------------
Xx. Xxx Xxxxxxxxxx Xxx Xxxxxx
Represented by: Xxx Xxxxxxxxxx, as
Attorney-in-fact
-23-
/s/ Xxx Xxxxxxxxxx /s/ Xxx Xxxxxxxxxx
------------------------------ -----------------------------------
V.I.V. Xx. Xxx Xxxxxxx
Name: Xxx Xxxxxxxxxx Represented by Xxx Xxxxxxxxxx, as
Title: Attorney-in-fact Attorney-in-fact
/s/ Xxxxxx Xxxx
------------------------------
TranSwitch Corporation
Name: Xxxxxx Xxxx
Title: Vice-President Business
Development - Attorney-in-fact
-24-
Table of Contents
-----------------
1 Definitions and Interpretation................................. 2
1.1 Definitions.................................................... 2
1.2 Interpretation................................................. 4
2 Sale and Purchase of the Shares................................ 5
2.1 The Shares..................................................... 5
2.2 Rights Attaching to the Shares (Dividend Rights)............... 6
2.3 Preemption Rights.............................................. 6
3 Purchase Price................................................. 6
3.1 Aggregate Purchase Price....................................... 6
3.2 Payment of the Purchase Price.................................. 6
3.3 Escrow......................................................... 7
3.4 Selling Restrictions on the Shares of TranSwitch Common Stock.. 7
3.5 Accounting Treatment........................................... 7
4 Closing........................................................ 7
4.1 Date and Place................................................. 7
4.2 Pre-Closing Actions............................................ 8
4.3 Obligations of the Sellers on the Closing Date................. 8
4.4 Obligations of the Purchaser on the Closing Date............... 8
4.5 Post-Closing Delivery of the Sellers........................... 9
5 Representations of the Sellers................................. 9
5.1 General Principles............................................. 9
5.2 Sellers' Disclosures........................................... 9
6 Representations of the Purchaser............................... 9
7 Indemnification................................................ 10
7.1 General Principles............................................. 10
7.2 Limitation of Sellers' Liability............................... 11
7.3 Limitation of Purchaser's Liability............................ 12
7.4 Claims by the Purchaser........................................ 13
7.5 Third Party Claims............................................. 14
8 Covenants of the Parties Extending after the Closing Date...... 15
8.1 Further Assurances............................................. 15
8.2 Confidential Nature of this Agreement and Announcements........ 15
8.3 Confidential Information of the Company........................ 16
8.4 Non-Competition and Non-Solicitation........................... 16
8.5 Release of Directors' Liability................................ 18
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9 Miscellaneous.................................................. 19
9.1 Amendments and Waivers......................................... 19
9.2 Appointment of Managing Sellers' Representative................ 19
9.3 Notices........................................................ 19
9.4 Interest....................................................... 21
9.5 Assignment of Rights and Obligations........................... 21
9.6 Costs.......................................................... 21
9.7 Severability................................................... 21
9.8 Entire Agreement............................................... 22
9.9 Governing Law.................................................. 22
9.10 Arbitration.................................................... 22
9.11 Counterparts................................................... 22
-26-
List of Schedules
-----------------
Schedule 3.1.1(i): Calculation of the average closing price of the
-----------------
TranSwitch Common Stock
Schedule 3.1.1(ii): Allocation of the aggregate Purchase Price among the
-----------------
Sellers
Schedule 4.5: Form of receipt for shares of TranSwitch Common Stock
------------
Schedule 5: Sellers' Representations
----------
Schedule 6: Purchaser's Representations
----------
Schedule 8.2.2: Waiver concerning non-disclosure obligations
--------------
Schedule 8.4.5: Shares held by the Sellers in competing companies
--------------
List of Closing Documents
-------------------------
Clause 4.2.1: Final invoices for the transaction costs or
confirmation of final amounts of fees and expenses
Clause 4.2.2: Pooling letter from Purchaser's accountants
Clause 4.3.1: Company's share register
Clause 4.3.2: Escrow Agreement
Registration Rights Agreement
Pooling letter from Sellers' accountants
Sellers' releases
Letters of resignation of Company's directors
Amendments to Employment Agreements of the Company's
employees
Opinion from Sellers' legal counsel concerning HSR
filing
Clause 4.3.3: Employment Agreements of the Managing Sellers
Clause 4.4.1: Irrevocable letter of instruction to the Purchaser's
stock transfer agent
Clause 4.4.3: Receipt for the Shares
Clause 4.4.4: Minutes of the Company's EGM (to include name and home
address of the new directors of the Company)
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