Exhibit 10.23
MASTER SEPARATION AGREEMENT
BETWEEN
KONINKLIJKE PHILIPS ELECTRONICS N.V.
AND
NAVTEQ CORPORATION
ARTICLE I DEFINITIONS 2
Section 1.1. Definition...................................................................2
Section 1.2. Other Definitional Provisions................................................5
ARTICLE II SEPARATION 5
Section 2.1. Separation Date..............................................................5
Section 2.2. Programs and Services........................................................5
ARTICLE III CONDITIONS TO CLOSING 7
Section 3.1. Conditions to Obligations of the Parties.....................................7
Section 3.2. Conditions to Obligations of Royal Philips...................................7
Section 3.3. Conditions to Obligations of NAVTEQ..........................................7
ARTICLE IV REPRESENTATIONS AND WARRANTIES 8
Section 4.1. Authority Relative to this Agreement.........................................8
Section 4.2. No Conflicts.................................................................8
ARTICLE V COVENANTS AND OTHER MATTERS 9
Section 5.1. Other Agreements.............................................................9
Section 5.2. Agreement to Provide Information.............................................9
Section 5.3. Auditors and Audits; Annual and Quarterly Statements and Accounting.........11
ARTICLE VI MISCELLANEOUS 13
Section 6.1. Entire Agreement............................................................13
Section 6.2. Governing Law...............................................................13
Section 6.3. Termination.................................................................13
Section 6.4. Notices.....................................................................13
Section 6.5. Counterparts................................................................14
Section 6.6. Binding Effect; Assignment; Third-Party Beneficiaries.......................14
Section 6.7. Confidentiality.............................................................14
Section 6.8. Severability................................................................15
Section 6.9. Failure or Indulgence Not Waiver; Remedies Cumulative.......................15
Section 6.10. Fees........................................................................15
Section 6.11. Interpretation..............................................................15
Section 6.12. Conflicting Agreements......................................................15
MASTER SEPARATION AGREEMENT
THIS
MASTER SEPARATION AGREEMENT (this "AGREEMENT") is entered into as
of July ___, 2004, by and between Koninklijke Philips Electronics N.V., a
Netherlands corporation ("ROYAL PHILIPS"), and
NAVTEQ Corporation, a Delaware
corporation ("NAVTEQ").
RECITALS
WHEREAS, pursuant to the Registration Rights Agreement (the "RIGHTS
AGREEMENT"), dated as of March 29, 2001, by and between NAVTEQ and Philips
Consumer Electronic Services B.V., a Netherlands corporation and wholly-owned
subsidiary of Royal Philips ("PHILIPS B.V."), NAVTEQ granted to Philips B.V.
certain rights to require NAVTEQ to register certain of its common stock, par
value $0.001 per share (the "COMMON STOCK"), with the Securities and Exchange
Commission (the "COMMISSION");
WHEREAS, on April 16, 2004, Philips B.V. exercised such registration
rights, and on April 20, 2004, NAVTEQ filed a registration statement on Form S-1
(Registration No. 333-114637) (the "REGISTRATION STATEMENT") for the initial
public offering of such Common Stock (the "IPO");
WHEREAS, it is anticipated that the Registration Statement will be
declared effective on or about August 5, 2004;
WHEREAS, the Selling Shareholders, NAVTEQ and the Underwriters will
enter into an underwriting agreement with respect to the IPO (the "PURCHASE
AGREEMENT");
WHEREAS, upon the consummation and closing of the IPO (the "IPO
CLOSING"), Philips B.V. will beneficially own (within the meaning of Rule 13d-3
under the Exchange Act Regulations) shares of NAVTEQ Common Stock representing
less than a majority of the voting power of all of the outstanding shares of
NAVTEQ Common Stock; and
WHEREAS, the Parties have determined that it would be appropriate and
desirable to set forth in this Agreement the manner in which certain agreements
and understandings between the Parties will be addressed following the IPO
Closing (the "SEPARATION");
NOW, THEREFORE, in consideration of the foregoing and the covenants
and agreements set forth below, the Parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. DEFINITION. Unless the context shall otherwise require,
or unless otherwise defined herein, capitalized terms used herein shall have the
meanings specified below (such meanings to be equally applicable to both the
singular and plural forms of the terms defined). Any term defined below by
reference to any other agreement shall have the meaning specified in such other
agreement whether or not such agreement is in effect:
"ACTION" means any action, suit, arbitration, inquiry, proceeding or
investigation by or before any court, any governmental or other regulatory or
administrative agency or commission or any arbitration tribunal.
"AFFILIATE" means, with respect to any specified Person, a Person that
controls, is controlled by, or is under common control with such specified
Person. As used herein, "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such Person, whether through ownership of voting securities or other interests,
by contract or otherwise. For purposes of this Agreement, no member of the
Philips Group shall be deemed to be an "Affiliate" of any member of the NAVTEQ
Group.
"APPLICABLE REGULATORY REQUIREMENTS" has the meaning set forth in
Section 5.2(a) hereof.
"COMMISSION" has the meaning set forth in the Recitals hereof.
"COMMON STOCK" has the meaning set forth in the Recitals hereof.
"CONSOLIDATED PERIOD" means any financial reporting period for which
NAVTEQ's financial results are consolidated with Royal Philips' consolidated
financial results.
"EQUITY PERIOD" means any financial reporting period for which Royal
Philips accounts or reasonably expects to account for NAVTEQ using the equity
method.
"EXCHANGE ACT REGULATIONS" means the General Rules and Regulations
under the Securities and Exchange Act of 1934, as amended.
"GOVERNMENTAL APPROVALS" means any notices, reports or other filings
to be made, or any consents, registrations, approvals, permits or authorizations
to be obtained from, any Governmental Authority.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, local, foreign
or international court, government, department, commission, board, bureau,
agency, official
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or other regulatory, administrative or governmental authority or stock exchange
official or authority.
"IFRS" has the meaning set forth in Section 5.2(c) hereof.
"INFORMATION" means information, whether or not patentable or
copyrightable, in written, oral, electronic or other tangible or intangible
forms, stored in any medium, including studies, reports, records, books,
contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints, diagrams, models,
prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes,
computer programs or other software, marketing plans, customer names,
communications by or to attorneys (including attorney-client privileged
communications), memos and other materials prepared by attorneys or under their
direction (including attorney work product), and other technical, financial,
employee or business information or data.
"IPO" has the meaning set forth in the Recitals hereof.
"IPO CLOSING" has the meaning set forth in the Recitals hereof.
"NAVTEQ" has the meaning set forth in the preamble hereof.
"NAVTEQ AUDITORS" has the meaning set forth in Section 5.3(a) hereof.
"NAVTEQ B.V." means NAVTEQ B.V., a Netherlands corporation and
wholly-owned subsidiary of NAVTEQ.
"NAVTEQ GROUP" means NAVTEQ and each Subsidiary and Affiliate of
NAVTEQ (other than Royal Philips or Philips B.V.).
"NAVTEQ N.A." means NAVTEQ North America, LLC, a Delaware organization
and wholly-owned subsidiary of NAVTEQ.
"OTHER AGREEMENTS" means (a) the Patent License Agreement, dated
January 1, 2004, by and between Royal Philips and NAVTEQ, and the First
Amendment thereto, dated ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) the Swap Agreement, dated April 22,
2003, by and between Royal Philips and NAVTEQ, and (c) the Rights Agreement.
"PARTY" means either Royal Philips or NAVTEQ, or, if used in the
plural, both thereof.
"PENAC" means Philips Electronics North America Corporation, a
Delaware corporation.
"PHILIPS B.V." has the meaning set forth in the Recitals hereof.
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"PHILIPS FINANCE MANUAL" means the finance manual adopted by Royal
Philips and in effect as of the Separation Date, and as may be amended from time
to time.
"PHILIPS GROUP" means Royal Philips and each Subsidiary and Affiliate
of Royal Philips (other than any member of the NAVTEQ Group).
"PHILIPS INSURANCE" has the meaning set forth in Section 2.2(a)
hereof.
"PHILIPS INTERNATIONAL" means Philips International B.V., a
Netherlands corporation.
"PHILIPS-RELATED SERVICES" means those services provided by any member
of the Philips Group to any member of the NAVTEQ Group, including, software
related consulting services, treasury services and tax consulting services.
"PHILIPS' POLICY ON AUDITORS INDEPENDENCE" means the policy regarding
auditors independence adopted by Royal Philips and in effect as of the
Separation Date, and as may be amended by Royal Philips from time to time.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"PURCHASE AGREEMENT" has the meaning set forth in the Recitals hereof.
"REGISTRATION STATEMENT" has the meaning set forth in the Recitals
hereof.
"REPORTING PERIOD" means any Consolidated Period or any Equity Period.
"RIGHTS AGREEMENT" has the meaning set forth in the Recitals hereof.
"ROYAL PHILIPS" has the meaning set forth in the preamble hereof.
"ROYAL PHILIPS AUDITORS" has the meaning set forth in Section 5.3(a)
hereof.
"SELLING SHAREHOLDERS" has the meaning set forth in the Purchase
Agreement.
"SEPARATION" has the meaning set forth in the Recitals hereof.
"SEPARATION DATE" has the meaning set forth in Section 2.1 hereof.
"SUBSIDIARY" means, with respect to any specified Person, any
corporation, any limited liability company, any partnership or other legal
entity of which such Person or its Subsidiaries owns, directly or indirectly,
more than 50% of the stock or other equity
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interest entitled to vote on the election of the members of the board of
directors or similar governing body. For purposes of this Agreement, no member
of the NAVTEQ Group shall be deemed to be a "Subsidiary" of any member of the
Philips Group.
"THIRD PARTY PROGRAMS" means those transactions, agreements or
understandings for the purchase of various goods and services, including parcel
services, fleet services to lease cars, travel arrangements, computer
peripherals and software, by NAVTEQ from a third party at a price less than the
standard price, which such reduced price is as a result of Royal Philips'
relationship with such third party.
"UNDERWRITERS" has the meaning set forth in the Purchase Agreement.
"U.S. GAAP" has the meaning set forth in Section 5.2(c) hereof.
Section 1.2. OTHER DEFINITIONAL PROVISIONS. The words "hereof",
"hereto", "herein" and "hereunder" and words of similar import when used in this
Agreement refer to this Agreement as a whole and not to any particular provision
of this Agreement; and references to any Article, Section, Exhibit or Schedule
are references to Articles, Sections, Exhibits or Schedules in or to this
Agreement unless otherwise specified.
ARTICLE II
SEPARATION
Section 2.1. SEPARATION DATE. Unless otherwise provided in this
Agreement or in any agreement to be executed in connection with this Agreement,
the effective time and date of each undertaking or agreement in connection with
the Separation shall be as of 12:01 a.m., Eastern Time, on the date of the IPO
Closing (the "SEPARATION DATE").
Section 2.2. PROGRAMS AND SERVICES. Each of Royal Philips, on behalf
of itself and each other member of the Philips Group, as applicable, and NAVTEQ,
on behalf of itself and each other member of the NAVTEQ Group, as applicable,
hereby agrees that on the Separation Date:
(a) INSURANCE. NAVTEQ and each of its Subsidiaries and Affiliates,
including each director and officer thereof, shall cease to be covered under any
insurance policy or other insurance arrangements provided or procured by any
member of the Philips Group ("PHILIPS INSURANCE"); and NAVTEQ shall ensure that
appropriate policies and coverage are in full force and effect as of the
Separation Date to replace those policies and arrangements previously provided
or procured by the Philips Group, including with respect to directors and
officers liability insurance, in respect of events, actions or circumstances
prior to the Separation Date. Each of NAVTEQ and Royal Philips agrees to discuss
whether any amounts shall be refunded to NAVTEQ by Royal Philips in connection
with the termination of such insurance policies and arrangements;
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PROVIDED that Royal Philips shall have no obligation to so agree to refund any
amounts to NAVTEQ by virtue of this sentence.
(b) PHILIPS-RELATED SERVICES. Any and all Philips-Related Services
then being provided by any member of the Philips Group to any member of the
NAVTEQ Group shall promptly cease, the arrangements related to the providing of
such Philips-Related Services shall terminate, and each party thereto shall have
no further liability or obligations relating to such arrangements, except for
the payment of any amounts owing to the Philips Group in respect of those
services and for such confidentiality provisions as exist at the time of such
termination, PROVIDED, HOWEVER, that the Philips Group shall continue to provide
the tax services being provided as of the Separation Date relating to the ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ tax return for NAVTEQ B.V. until completion of such tax return for
filing.
(c) THIRD PARTY PROGRAMS. Participation by NAVTEQ and each of its
Subsidiaries and Affiliates, as applicable, in the Third Party Programs then in
place shall continue if and to the extent permitted in such Third Party Program;
PROVIDED, that on December 31, 2004, unless the Parties otherwise agree, to the
extent NAVTEQ or any of its Subsidiaries or Affiliates is participating in any
Third Party Program, such participation by NAVTEQ or any Subsidiary or
Affiliate, as the case may be, shall immediately cease and such Third Party
Program shall terminate. For the avoidance of doubt, NAVTEQ hereby acknowledges
and agrees that, as of and from the Separation Date, neither Royal Philips nor
any member of the Philips Group shall have any obligations or liabilities under,
with respect to or in connection with any Third Party Program or any
arrangements related to the provision of any Third Party Program to NAVTEQ or
any of its Subsidiaries and Affiliates, whether prior to, as of or following the
Separation Date and NAVTEQ hereby agrees to release Royal Philips and any member
of the Philips Group from any and all claims by any member of the NAVTEQ Group
(other than any claim made in connection with the immediately succeeding
sentence) and to indemnify each member of the Philips Group against any and all
claims arising in connection with the participation by any member of the NAVTEQ
Group in such Third Party Programs. To the extent NAVTEQ has prepaid any fees to
any member of the Philips Group for participation in any Third Party Program(s)
in any period, such member of the Philips Group shall refund, or shall cause to
be refunded, to NAVTEQ an amount equal to (x) such prepaid fees (less any
amounts any member of the Philips Group has paid to a third party in respect of
NAVTEQ's participation in such programs for which such party does not reimburse
such member of the Philips Group) multiplied by (y) a fraction, the numerator of
which is the number of days remaining in such period as of the termination date
of such Third Party Program, and the denominator of which is the total number of
days in such period. To the extent any member of the Philips Group has prepaid
amounts on behalf of the NAVTEQ Group in connection with any Third Party Program
and such amounts have not been reimbursed by NAVTEQ to such member of the
Philips Group by the Separation Date, then NAVTEQ shall pay such amounts to the
applicable member of the Philips Group.
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ARTICLE III
CONDITIONS TO CLOSING
Section 3.1. CONDITIONS TO OBLIGATIONS OF THE PARTIES. The
obligations of each of the Parties hereto to consummate the transactions
contemplated by this Agreement are subject to the fulfillment, at or prior to
the IPO Closing, of each of the following conditions:
(a) the Purchase Agreement shall have been executed and delivered by
each of the parties thereto and all of the conditions precedent thereunder shall
have been satisfied or waived by the applicable party;
(b) the Common Stock shall have been delivered by the Selling
Shareholders to the Underwriters as provided in the Purchase Agreement, and
(c) no Action shall have been commenced by any Governmental
Authority, seeking to restrain or materially and adversely alter the
transactions contemplated by this Agreement which, in the reasonable, good faith
determination of either Royal Philips or NAVTEQ, is likely to render it
impossible or unlawful to consummate such transactions.
Section 3.2. CONDITIONS TO OBLIGATIONS OF ROYAL PHILIPS. The
obligations of Royal Philips to consummate the transactions contemplated by this
Agreement are subject to the fulfillment, at or prior to the IPO Closing, of
each of the following additional conditions:
(a) the representations and warranties of NAVTEQ contained in this
Agreement shall be true and correct, as of the date hereof and as of the
Separation Date, with the same force and effect as if made as of the Separation
Date; and
(b) the covenants and agreements contained in this Agreement to be
complied with by each member of the NAVTEQ Group on or prior to the Separation
Date shall have been complied with in all material respects.
Section 3.3. CONDITIONS TO OBLIGATIONS OF NAVTEQ. The obligations of
NAVTEQ to consummate the transactions contemplated by this Agreement are subject
to the fulfillment, at or prior to the IPO Closing, of each of the following
additional conditions:
(a) the representations and warranties of Royal Philips contained in
this Agreement shall be true and correct as of the Separation Date, with the
same force and effect as if made as of the Separation Date; and
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(b) the covenants and agreements contained in this Agreement to be
complied with by each member of the Philips Group on or prior to the Separation
Date shall have been complied with in all material respects.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Party hereto represents and warrants to each other as follows:
Section 4.1. AUTHORITY RELATIVE TO THIS AGREEMENT. It has all
necessary power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by it and the consummation
by it of this Agreement have been duly and validly authorized by all necessary
corporate action and no other corporate action and no other corporate
proceedings on its part are necessary to authorize this Agreement. This
Agreement has been duly and validly executed and delivered by it and constitutes
its legal, valid and binding obligation, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
Section 4.2. NO CONFLICTS. The execution and delivery by it of this
Agreement do not, and its performance of its obligations under this Agreement
will not, (i) conflict with or violate the certificate of incorporation or
by-laws (or similar constitutive documents) of it or any of its Subsidiaries,
(ii) conflict with or violate any law, rule, regulation, order, judgment or
decree applicable to it or to any of its Subsidiaries is bound or affected, or
(iii) result in any breach of or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to others
any right of termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or other encumbrances on any of its property or assets
or on any of the property or assets of its Subsidiaries pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which it or any of its
Subsidiaries is a party or by which it or any of its Subsidiaries or any of its
property or assets or any of the property or assets of its Subsidiaries is bound
or affected, except for any such conflicts, violations, breaches, defaults or
other occurrences which could not, individually or in aggregate, reasonably be
expected to have a material adverse effect on its ability to perform its
obligations under this Agreement.
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ARTICLE V
COVENANTS AND OTHER MATTERS
Section 5.1. OTHER AGREEMENTS. In addition to the specific
agreements, documents and instruments described in this Agreement, Royal Philips
and NAVTEQ agree to execute or cause to be executed by the appropriate parties
and deliver, as appropriate, such other agreements, instruments and other
documents as may be necessary or desirable in order to consummate and make
effective the transactions contemplated by this Agreement.
Section 5.2. AGREEMENT TO PROVIDE INFORMATION.
(a) PROVISION OF INFORMATION. NAVTEQ agrees to provide, or cause to
be provided, to Royal Philips or its designee(s), as soon as reasonably
practicable after written request therefor, any Information in the possession or
under the control of any member of the NAVTEQ Group that Royal Philips
reasonably needs (i) to comply with reporting, disclosure, filing or other
requirements imposed on any member of the Philips Group (including under
applicable securities or tax laws or stock exchange rules) by a Governmental
Authority having jurisdiction over such member ("APPLICABLE REGULATORY
REQUIREMENTS") or (ii) for use in any other judicial, regulatory,
administrative, tax or other proceeding or in order to satisfy audit,
accounting, claims, regulatory, litigation, tax or other similar requirements;
PROVIDED, HOWEVER, that in the event that NAVTEQ determines that any such
provision of Information could be commercially detrimental, violate any law or
agreement, or waive any attorney-client privilege, the parties shall take all
reasonable measures to permit the compliance with such obligations in a manner
that avoids any such harm or consequence.
(b) DISCLOSURE CONTROLS AND PROCEDURES AND INTERNAL CONTROLS OVER
FINANCIAL REPORTING. During any Reporting Period, NAVTEQ shall maintain, at its
own cost and expense, systems of internal disclosure controls and procedures and
internal controls over financial reporting sufficient to enable Royal Philips to
satisfy its reporting, accounting, audit and other obligations (including,
without limitation, under the Sarbanes Oxley Act of 2002 and the rules and
regulations thereunder) and to provide reasonable assurance of the adequacy of
such controls and procedures to Royal Philips on an annual basis in such form
and detail as shall enable Royal Philips to satisfy such obligations, including
to the effect that (i) records are maintained that in reasonable detail
accurately and fairly reflect transactions and dispositions of assets; (ii)
transactions are executed in accordance with management's general or specific
authorizations; (iii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iv) access to
assets is permitted only in accordance with management's general or specific
authorization; and (v) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. In respect of any Equity Period, notwithstanding
anything else to the
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contrary in this Section 5.2(b), this Section 5.2(b) shall impose no additional
obligations upon NAVTEQ to maintain internal disclosure controls and procedures
and internal controls over financial reporting beyond those that are applicable
to NAVTEQ independent of its relationship with Royal Philips.
(c) PHILIPS' COMPLIANCE MATTERS. (i) For any Consolidated Period,
NAVTEQ shall (A) satisfy all reporting obligations (at the time and in the
manner specified therein) required pursuant to the Philips Finance Manual; and
(B) fully comply with generally accepted accounting principles in the United
States ("U.S. GAAP") and, to the extent necessary to enable Royal Philips to
comply with the requirements of the International Financial Reporting Standards
("IFRS") applicable to the Philips Group, respond to requests from Royal Philips
for supplemental Information as soon as reasonably practicable but in any event
no later than the timeframe for which NAVTEQ must comply with requirements
relating to U.S. GAAP pursuant to the Philips Finance Manual.
(ii) For any Equity Period, NAVTEQ shall prepare its financial
statements in accordance with U.S. GAAP, and include a reconciliation of
NAVTEQ's net income and shareholders' equity to IFRS in such detail as is
necessary in order for Royal Philips to satisfy the Applicable Regulatory
Requirements.
(d) OWNERSHIP OF INFORMATION. Any Information owned by NAVTEQ that is
provided to Royal Philips pursuant to this Section 5.2 shall be deemed to remain
the property of NAVTEQ. Unless specifically set forth herein, nothing contained
in this Agreement shall be construed as granting or conferring rights of license
or otherwise in respect of any such Information.
(e) RECORD RETENTION. To facilitate the possible delivery of
Information pursuant to this Section 5.2 and other provisions of this Agreement
after the Separation Date, NAVTEQ agrees to use its reasonable commercial
efforts to retain all Information in its possession or control on the Separation
Date substantially in accordance with NAVTEQ's policies as in effect on the
Separation Date and as may be reasonably amended from time to time; PROVIDED,
that such policies, as amended, are consistent with those practices customarily
adopted and implemented by listed U.S. public companies.
(f) OTHER AGREEMENTS PROVIDING FOR DELIVERY OF INFORMATION. The
rights and obligations granted under this Section 5.2 are subject to any
specific limitations, qualifications or additional provisions on the sharing,
exchange or confidential treatment of Information set forth in this Agreement.
(g) PRODUCTION OF WITNESSES; RECORDS; COOPERATION. NAVTEQ shall use
its reasonable commercial efforts to make available to Royal Philips, upon
written request, the former, current and future officers, employees, other
personnel and agents of NAVTEQ as witnesses and any books, records or other
documents within its control or
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which it otherwise has the ability to make available, to the extent that any
such person (giving consideration to business demands of such officers,
employees, other personnel and agents) or books, records or other documents may
reasonably be required in connection with any legal, regulatory, administrative
or other proceeding in which Royal Philips may from time to time be involved,
regardless of whether such legal, regulatory, administrative or other proceeding
is a matter with respect to which indemnification may be sought hereunder. Royal
Philips shall bear all costs and expenses in connection therewith.
Section 5.3. AUDITORS AND AUDITS; ANNUAL AND QUARTERLY STATEMENTS AND
ACCOUNTING.
(a) AUDITORS. Unless Royal Philips otherwise consents (such consent
not to be unreasonably withheld), for any Reporting Period, NAVTEQ shall select
to audit its financial statements and serve as its independent certified public
accountants (the "NAVTEQ AUDITORS") for purposes of providing an opinion with
respect to its consolidated financial statements the same accounting firm as is
selected by Royal Philips to audit its consolidated financial statements and to
serve as its independent certified public accountants ("ROYAL PHILIPS AUDITORS")
for purposes of providing an opinion with respect to its consolidated financial
statements; PROVIDED, HOWEVER, that, for any Equity Period, NAVTEQ shall have
the right to select a different accounting firm to the extent the audit
committee of NAVTEQ determines that it would be in NAVTEQ's best interests to
select a different accounting firm. During any Reporting Period, NAVTEQ
covenants to cause the NAVTEQ Auditors to comply with the applicable terms and
conditions of the Philips' Policy on Auditors Independence with respect to Royal
Philips or the Philips Group.
(b) ANNUAL AND QUARTERLY FINANCIAL STATEMENTS. NAVTEQ shall provide,
and shall cause the NAVTEQ Auditors to provide, to Royal Philips on a timely
basis all Information that Royal Philips requires to meet its schedule for the
preparation, printing, filing, and public dissemination of each of Royal
Philips' annual and quarterly financial statements that include a Reporting
Period. Without limiting the generality of the foregoing, NAVTEQ will provide
all required financial Information with respect to NAVTEQ and its Subsidiaries
to the NAVTEQ Auditors in a sufficient and reasonable time and in sufficient
detail to permit the NAVTEQ Auditors to take all steps and perform all reviews
necessary, and NAVTEQ shall provide sufficient assistance to the Royal Philips
Auditors, with respect to Information to be included or contained in each of
Royal Philips' annual and quarterly financial statements that includes a
Reporting Period. NAVTEQ shall use its reasonable commercial efforts to make its
quarterly and annual results announcements no later than the time at which Royal
Philips shall make its corresponding quarterly and annual results announcements;
PROVIDED, HOWEVER, that NAVTEQ shall not be required to incur any additional
costs or expenses (including any costs or expenses associated with any
additional staffing) in connection with such efforts.
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(c) IDENTITY OF PERSONNEL PERFORMING THE ANNUAL AUDIT AND QUARTERLY
REVIEWS. NAVTEQ shall authorize the NAVTEQ Auditors to make available to the
Royal Philips Auditors both the personnel who performed or are performing the
annual audits and quarterly reviews of NAVTEQ's financial statements and work
papers related to the annual audits and quarterly reviews of NAVTEQ, in all
cases within a reasonable time prior to the NAVTEQ Auditors' opinion date or
report date, as the case may be, so that the Royal Philips Auditors are able to
perform the procedures they consider necessary to take responsibility for the
work of the NAVTEQ Auditors as it relates to the Royal Philips Auditors' report
on Royal Philips' financial statements, all within sufficient time to enable
Royal Philips to meet its timetable for the printing, filing and public
dissemination of each of Royal Philips' annual and quarterly statements that
includes a Reporting Period.
(d) CHANGES TO FINANCIAL RESULTS AND IN ACCOUNTING PRINCIPLES. NAVTEQ
shall give Royal Philips as much prior notice as reasonably practical of any
proposed determination of, or proposed changes in, its critical accounting
estimates or significant accounting principles or any proposed restatement or
revision to NAVTEQ's financial statements, if any such change, restatement or
revision could affect Royal Philips' reported financial results for any
Reporting Period. NAVTEQ will consult with Royal Philips and, if requested by
Royal Philips, NAVTEQ will consult with Royal Philips and the Royal Philips
Auditors, and permit Royal Philips and the Royal Philips Auditors to consult
with the NAVTEQ Auditors, with respect thereto. Without the prior written
approval of Royal Philips, NAVTEQ shall not, during any Reporting Period, (a)
restate or revise its financial results with respect to prior Reporting Periods,
or (b) make any change to any of its accounting principles, in each case if such
restatement, revision or change could affect, or could require Royal Philips to
restate, revise or change, the financial results reported on Royal Philips'
prior financial statements or to be reported on Royal Philips' future financial
statements, PROVIDED, HOWEVER, that, (a) if in the opinion of the NAVTEQ
Auditors, NAVTEQ's failure to make any such restatement, revision or change
would result in NAVTEQ's financial statements failing to be in compliance, in a
material respect, with U.S. GAAP or the requirements of the Commission, NAVTEQ
may make any such restatement, revision or change after (1) providing Royal
Philips with as much prior notice thereof as reasonably practicable and (2)
consulting with Royal Philips and the Royal Philips Auditors permitting Royal
Philips and the Royal Philips Auditors to consult, for a reasonable period of
time, with the NAVTEQ Auditors regarding such proposed restatement, revision or
change. NAVTEQ shall not, during any period that is not a Reporting Period, (a)
restate or revise its financial results with respect to any Reporting Period, or
(b) make any change to any of its accounting principles, in each case if in the
judgment of Royal Philips such restatement, revision or change would require
Royal Philips to restate, revise or change the financial results for any
Reporting Period reported on Royal Philips' financial statements; PROVIDED,
HOWEVER, that, (a) if in the opinion of the NAVTEQ Auditors, NAVTEQ's failure to
make any such restatement, revision or change would result in NAVTEQ's financial
statements failing to be in compliance, in a material respect, with U.S. GAAP or
the requirements of the Commission, NAVTEQ may make any such
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restatement, revision or change after (1) providing Royal Philips with as much
prior notice thereof as reasonably practicable and (2) consulting with Royal
Philips and the Royal Philips Auditors permitting Royal Philips and the Royal
Philips Auditors to consult, for a reasonable period of time, with the NAVTEQ
Auditors regarding such proposed restatement, revision or change.
ARTICLE VI
MISCELLANEOUS
Section 6.1. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
shall supersede all prior written and oral and all contemporaneous oral
agreements and understandings with respect to the subject matter hereof and
thereof. For the avoidance of doubt, the Parties hereby confirm that each of the
Other Agreements is not, nor is intended to be, in any manner whatsoever,
modified, altered, amended or in any other way changed as a result of the
execution or performance of this Agreement.
Section 6.2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
Section 6.3. TERMINATION. This Agreement may be terminated at any
time prior to the IPO Closing by and in the sole discretion of Royal Philips
without the approval or consent of NAVTEQ. This Agreement may be terminated at
any time after the Separation Date by the mutual consent of Royal Philips and
NAVTEQ. In the event of termination pursuant to this Section 6.3, no Party shall
have any liability of any kind to the other Party under this Agreement,
including with respect to the termination, except to the extent otherwise agreed
by the Parties.
Section 6.4. NOTICES. All notices and other communications required
or permitted to be given by any Party pursuant to the terms of this Agreement
shall be in writing to and shall be deemed to have been duly given when
delivered in person, by express or overnight mail delivery by a nationally
recognized courier (delivery charges prepaid), or by registered or certified
mail (postage prepaid, return receipt requested), as follows:
if to Royal Philips:
Koninklijke Philips Electronics N.V.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
The Netherlands
Attention: General Secretary
Telephone: (▇▇▇) ▇▇-▇▇-▇▇▇-▇▇▇▇
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Facsimile: (▇▇▇) ▇▇-▇▇-▇▇▇-▇▇▇▇
if to NAVTEQ:
NAVTEQ Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel, with a copy to the Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing in the manner set forth above. All
notices and other communication shall be deemed to have been given and received
on the date of actual delivery.
Section 6.5. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
Section 6.6. BINDING EFFECT; ASSIGNMENT; THIRD-PARTY BENEFICIARIES.
No Party may, directly or indirectly, in whole or in part, whether by operation
of law or otherwise, assign or transfer this Agreement or its rights hereunder,
without the prior written consent of the other Party hereto and, except as
otherwise permitted hereby, any attempted assignment, transfer or delegation
without such prior written consent shall be voidable at the option of the other
Party hereto. Without limiting the foregoing, this Agreement shall be binding
upon and inure solely to the benefit of each Party hereto, each member of the
NAVTEQ Group and each member of the Philips Group and each of its legal
representatives and successors and assigns and nothing in this Agreement,
express or implied, is intended to confer upon any other Person any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
Section 6.7. CONFIDENTIALITY. Royal Philips agrees that the
Information provided to it hereunder is confidential and shall be disclosed by
it only for purposes of satisfying its legal, regulatory or corporate
obligations and not for any other purposes; PROVIDED, HOWEVER, that Royal
Philips shall have no obligation to keep confidential any Information which, (i)
at the time of disclosure, was in the public domain; (ii) is received by Royal
Philips from a third party who did not receive such Information from NAVTEQ
under an obligation of confidentiality of which Royals Philips had notice; or
(iii) is compelled to be disclosed by judicial or administrative process or, in
the opinion of Royal Philips' counsel, by other requirements of law.
Notwithstanding the foregoing, Royal Philips shall be deemed to have satisfied
its obligations under this Section 6.7 to the extent it exercises the same care
with regard to such Information as it takes to preserve confidentiality of its
own similar information.
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Section 6.8. SEVERABILITY. If any term or other provision of this
Agreement is determined by a court, administrative agency or arbitrator, by any
court or in any binding arbitration, to be invalid, illegal or incapable of
being enforced by any rule of law or public policy, all other conditions and
provisions of this Agreement will nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party hereto.
Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties hereto
as closely as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the fullest extent possible.
Section 6.9. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of either party hereto in the exercise of any
right hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement herein,
nor shall any single or partial exercise of any such right preclude other or
further exercise thereof or of any other right. All rights and remedies existing
under this Agreement or the Schedules or Exhibits attached hereto are cumulative
to, and not exclusive of, any rights or remedies otherwise available.
Section 6.10. FEES. NAVTEQ shall pay any and all fees and expenses
charged by the NAVTEQ Auditors in connection with the performance by NAVTEQ of
its obligations under Sections 5.2 and 5.3; PROVIDED, HOWEVER, that, subject to
prior consultation by NAVTEQ with Royal Philips regarding the fees and expenses
described in this proviso, Royal Philips shall pay any fees and expenses of the
NAVTEQ Auditors to the extent such fees and expenses are charged either (i) in
connection with the reconciliations contemplated by Sections 5.2(c)(i) and (ii),
or (ii) solely as a result of a request for Information by Royal Philips and
such Information is not otherwise necessary or reasonably necessary in order for
NAVTEQ to satisfy its independent reporting obligations or other business
purposes.
Section 6.11. INTERPRETATION. The headings contained in this Agreement
and in the table of contents to this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
When a reference is made in this Agreement to an Article or a Section, such
reference shall be to an Article or Section of this Agreement unless otherwise
indicated.
Section 6.12. CONFLICTING AGREEMENTS. In the event of conflict between
this Agreement and any Philips-Related Services or other agreement executed in
connection herewith, the provisions of this Agreement shall prevail.
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WHEREFORE, the parties have signed this
Master Separation Agreement
effective as of the date first set forth above.
KONINKLIJKE PHILIPS ELECTRONICS N.V.
By /s/ E.P. Coutinmo
---------------------------------
Name: E.P. Coutinmo
Title: Authorized Signatory
NAVTEQ CORPORATION
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: V.P. & General Counsel
