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Exhibit 3.9
UMBRELLA AGREEMENT
RELATING TO THE PURCHASE AND SALE
OF CERTAIN BUSINESSES AND ASSETS
between
(1) INTEL CORPORATION;
and
(2) OLICOM A/S;
INTEL CORPORATION-OLICOM A/S - Umbrella Agreement
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THIS AGREEMENT is made the 30th day of September 1999
BETWEEN:
(1) INTEL CORPORATION OF ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇.▇.▇.
(the "PRINCIPAL PURCHASER"); and
(2) OLICOM A/S, ▇▇▇.▇▇. A/S 101.733, ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
(the "DANISH SELLER"); with the adherence of
(3) OLICOM POLAND SP. Z O.O., STOWACKIEGO 173, GDANSK - WRZESZCZ, POland
(the "POLISH SELLER");
(each a "PARTY" and together, the "PARTIES")
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 All terms defined in Schedule A shall have the meaning specified
therein when used in this Umbrella Agreement or in any of the
Transaction Agreements unless a specific separate definition is
contained therein.
1.2 Unless the context requires otherwise words in the singular include the
plural and vice versa and words for any gender shall include all
genders. Reference to persons includes a body corporate.
1.3 Other than in the case of any warranties, reference to any legislation
includes a reference to any amending legislation, directives or orders
made further to it and includes consolidations or amendments or
modifications or re-enactments.
1.4 The headings are inserted for convenience only and shall not affect the
construction of this Umbrella Agreement.
1.5 Unless otherwise stated a reference to a clause or a schedule or a
party is a reference to a clause in or a schedule or a party to this
Umbrella Agreement.
1.6 Reference to writing includes any method of reproducing words in a
legible and non-transitory form.
1.7 Unless the context requires otherwise any period of time from a
specified date or day shall be calculated exclusive of that date or
day.
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1.8 The Parties have participated jointly in the negotiation and drafting
of this Umbrella Agreement and the schedules and exhibits hereto. In
the event of any ambiguity or question of intent or interpretation
arises, this Umbrella Agreement or any schedule or exhibit hereto shall
be construed as if drafted jointly by the Parties and no presumption or
burden of proof shall arise favoring or disfavoring any Party by virtue
of the authorship of any of the provisions of this Umbrella Agreement
or any schedule or exhibit hereto.
1.9 Any reference to any federal, state, local, or foreign statute or law
shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word "including"
shall mean including without limitation.
1.10 Any reference to this Umbrella Agreement and to the Transaction
Agreements shall be deemed to include a reference to all schedules and
exhibits hereto and thereto.
1.11 Anything reasonably identified in the Disclosure Volume shall be deemed
adequate to disclose an exception to a representation or warranty made
herein or in any of the Transaction Agreements.
1.12 The Principal Purchaser acknowledges the existence of an agreement
between the Danish Seller and ▇▇▇▇▇ Networks N.V. relating inter alia
to the grant by the Danish Seller of a non-exclusive license to ▇▇▇▇▇
Networks N.V. relating to certain parts of the Base IP and to one
assigned provisional patent application,
1.13 Any statement in this Umbrella Agreement and in the Transaction
Agreements which is qualified by the expression "to the best of
knowledge" or "as far as the Danish Seller is aware" or any similar
expression shall mean the actual knowledge, information, and belief of
the following executives of Niels ▇▇▇▇▇▇▇▇ ▇▇▇▇, Chief Executive
Officer; ▇▇▇ ▇▇▇▇▇▇, Executive Vice President Global Sales and
Marketing and Chief Executive Officer, Olicom lnc.: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
Former Chief Technical Officer; ▇▇▇▇ ▇▇▇▇▇▇, Chief Financial Officer:
Per Friis, Vice President of Operations; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Gjellerup,
Vice President Business Operations; ▇▇▇▇▇ ▇▇▇▇, Director of Legal
Affairs; and ▇▇. ▇▇▇▇▇▇▇▇▇▇, CEO of the Polish Seller, provided that
the knowledge of ▇▇. ▇▇▇▇▇▇▇▇▇▇ shall only be deemed relevant up to the
Polish Completion.
2. SCOPE OF AGREEMENT
2.1 This Umbrella Agreement governs and sets out the principal terms and
conditions relating to the Sellers' sale and transfer of the Businesses
to the Purchasers. The detailed terms and conditions of the sale and
transfer of the individual parts of the Businesses are set out in the
Transaction Agreements. In the event of a conflict between the terms
and conditions in this Umbrella Agreement and the terms and conditions
in any of the Transaction Agreements, the Umbrella Agreement shall
prevail.
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2.2 It is the mutual intention of the Parties, that upon the consummation
of the transactions contemplated by this Umbrella Agreement and by each
of the Transaction Agreements, the Purchasers shall have become the
sole and unrestricted proprietor of the Businesses, the FE Patents and
the Remaining FE IP and a non-exclusive licensee of the Base IP.
2.3 Unless expressly stated in this Umbrella Agreement or in any of the
Transaction Agreements the Purchasers shall not assume any of the
Liabilities. The Danish Seller agrees to indemnify and keep the
Purchasers harmless from and against any and all loss, cost and expense
relating to or arising out of any of the Liabilities not expressly
assumed by any of the Purchasers. For the avoidance of doubt, the
mention of or reference to any Liability in this Umbrella Agreement, or
any of the Transaction Agreements (including without limitation the
representations and warranties herein or thereto or any of the
Disclosure Volume) shall not be construed as an agreement by any
Purchaser to assume and/or discharge any such Liability unless
otherwise expressly stated herein or therein.
2.4 In the event of any inconsistency between any of the Agreements or in
the event of any dispute among the Parties to this Umbrella Agreement
or any of the Transaction Agreements, it is the intention of the
Parties that any such inconsistency or dispute shall be resolved
consistently with the main objects and principles expressed in Clauses
2.1, 2.2 and 2.3 of this Umbrella Agreement. Simultaneously with the
execution of this Umbrella Agreement, the Parties indicated below have
executed the agreements specified:
2.5.1 The Danish Business Agreement between the Danish Seller and
the Danish Purchaser, relating to the sale and transfer of the
Danish Business, Schedule B.
2.5.2 The Danish FE Patents Agreement between the Danish Seller and
Dialogic relating to the sale and transfer of the Danish FE
Patents, Schedule C.
2.5.3 The Danish Remaining FE IP Agreement between the Danish Seller
and the Principal Purchaser, Schedule D.
2.5.4. The Danish Base IP Agreement between the Danish Seller and the
Principal Purchaser, Schedule E.
2.5.5 The Polish FE Patents Agreement between the Polish Seller and
Dialogic relating to the sale and transfer of the Polish FE
Patents, Schedule G.
2.5.6. The Polish Remaining FE IP Agreement between the Polish Seller
and the Principal Purchaser, Schedule H.
2.5.7 The Polish Base IP Agreement between the Polish Seller and the
Principal Purchaser, Schedule 1.
2.5.8 The FE IP Grant Back License Agreement between Principal
Purchaser and the Danish Seller, Schedule J.
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2.5.9 The Warranty Support Services Agreement between the Danish
Purchaser and the Danish Seller, Schedule K.
2.5.10 The First Danish Hold Back Escrow Agreement between the Danish
Purchaser and the Danish Seller, Schedule B.1.
2.5.11 The Second Danish Hold Back Escrow Agreement between the
Danish Purchaser and the Danish Seller, Schedule B.2.
2.5.12 The First Danish Conditional Escrow Agreement between the
Danish Purchaser and the Danish Seller, Schedule B.3.
2.5.13 The Second Danish Conditional Escrow Agreement between the
Danish Purchaser and the Danish Seller, Schedule B.4.
2.5.14 The Sublease Agreement between the Danish Purchaser and the
Danish Seller. Schedule B.10.
2.5.15 The Service Agreement between the Danish Purchaser and the
Danish Seller, Schedule B.6.
2.5.16 The Polish Hold-Back Escrow Agreement between the Principal
Purchaser and the Polish Seller, Schedule F.1.
2.5.17 The Intel Guaranty issued by the Principal Purchaser, Schedule
B.11.
2.6 The Principal Purchaser agrees to procure the incorporation of the
Polish Purchaser without undue delay and pursuant hereto to procure the
execution by the Polish Purchaser of the Polish Business Agreement
between the Polish Seller and the Polish Purchaser, relating to the
sale and transfer of the Polish Business in the same or substantially
the same form as Schedule F. Furthermore, the Principal Purchaser
agrees to use reasonable commercial efforts to procure the consummation
by the Polish Purchaser of the transactions contemplated by the Polish
Business Agreement without undue delay.
2.7 The Danish Seller agrees to procure the execution by the Polish Seller
of the Polish Business Agreement between the Polish Seller and the
Polish Purchaser, relating to the sale and transfer of the Polish
Business in the same or substantially the same form as Schedule F.
Furthermore, the Danish Seller agrees to use reasonable commercial
efforts to procure the consummation by the Polish Seller of the
transactions contemplated by the Polish Business Agreement without
undue delay.
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3. COMPLETION
3.1 The completion of the transactions contemplated by this Umbrella
Agreement shall be governed by the relevant Transaction Agreements.
3.2 In the event that (a) the Polish Business Agreement cannot be executed
by any of the respective parties thereto or (b) any of the transactions
contemplated by the Polish Business Agreement cannot be consummated on
or before 31 December 1999, then the Danish Seller and the Principal
Purchaser undertake to use all reasonable efforts to procure either (i)
that such execution and consummation is accomplished without undue
delay or (ii) that the transactions contemplated by the Danish Business
Agreement shall be replaced by one or more other transactions capable
of facilitating the same or substantially the same results, such other
transaction(s) to be consummated by the Danish Seller and the Principal
Purchaser, or their respective affiliates, without undue delay. The
foregoing sentence shall not apply, however, in case of a material
breach for the whole transaction by a Party to the Umbrella Agreement
or its affiliate of any of the representations, warranties, agreements
and undertakings in this Umbrella Agreement or in any of the
Transaction Agreements.
3.3 Each Purchaser may waive any requirement or condition contained in this
Umbrella Agreement or in any of the respective Transaction Agreements
or may waive such requirement or condition on condition that the
relevant Sellers give on the relevant date of completion a written
undertaking to the relevant Purchaser in a form reasonably required by
such Purchaser.
3.4 The Parties agree to use all reasonable efforts to take, or cause to be
taken all actions and to do, or cause to be done all things necessary,
proper or advisable under applicable laws and regulations to consummate
and make effective the transactions contemplated by this Umbrella
Agreement and by each of the Transaction Agreements.
4. CONDITIONS FOR COMPLETION
4.1 The obligations of the Principal Purchaser to perform its obligations
pursuant to this Umbrella Agreement and/or any of the Transaction
Agreements is subject to satisfaction of each of the following
conditions:
(1) No unfavorable injunction, judgement, order, decree, ruling,
or charge by any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction
or before any arbitrator would: (A) prevent to any material
extent the consummation of any of the transactions
contemplated by this Umbrella Agreement; or (B) save for
clause 7.7, cause any of the transactions contemplated by this
Umbrella Agreement to be rescinded to any material extent
following consummation.
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(2) The Danish Seller and/or the Polish Seller shall have taken
all of the following action required or reasonably advisable
for them to take in connection with the consummation of the
transactions contemplated hereby:
(i) Approval of this Umbrella Agreement and each of the
Transaction Agreements by the Danish Seller's board
of directors and, if decided by the Danish Seller, by
a shareholders' meeting;
(ii) Approval of the Polish Transaction Agreements by the
Polish Seller's board of directors.
4.2 The obligations of the Purchasers to perform their respective
obligations pursuant to the Danish Transaction Agreements and the
Polish Transaction Agreements (with the exception of the Polish
Business Agreement) shall be subject to the simultaneous consummation
of all transactions contemplated thereby.
4.3 The obligations of the Polish Purchaser to perform its obligations
pursuant to the Polish Business Agreement (and of the Principal
Purchaser pursuant to Clause 3.2 herein) shall be subject to the prior
fulfillment of the condition precedent in Clause 4.2 herein.
4.4 The obligations of the respective Purchasers to consummate the
transactions contemplated by the respective Transaction Agreements
shall be subject to the conditions precedent specified in each such
Transaction Agreement.
5. GENERAL COVENANTS
5.1 Further Assurances
Each Party shall, and shall procure that its respective affiliates
shall, at the other Party's request, from time to time execute and
deliver such further instruments of conveyance, assignment and transfer
in addition to those specified in this Umbrella Agreement and/or in any
of the Transaction Agreements, which are necessary to consummate and
make effective the transactions contemplated by this Umbrella Agreement
and by the Transaction Agreements, and each Party shall take, or cause
or procure to be taken by it or by its affiliates, such other actions
as either Party may reasonably request for more effective conveyance,
assignment and transfer of the Businesses to the Purchasers.
5.2 Reasonable Efforts.
Each of the Parties shall (and shall use reasonable commercial efforts
to procure that their affiliates shall) co-operate and use their
respective reasonable efforts to take, or cause to be taken, all
appropriate actions, and to make, or cause to be made, all filings
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this
Umbrella Agreement and by the Transaction Agreements.
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5.3 Books and Records.
To the extent not included in the Assets, the Principal Seller shall
(and shall use reasonable commercial efforts to procure that their
affiliates shall) maintain the books and records relating to the
Businesses not delivered to the Purchasers at the First Completion or
the Second Completion for the period during which a legal duty to do so
exists according to statutory law and whenever reasonably required by
the Principal Purchaser shall allow the Principal Purchaser and/or its
affiliates and their respective auditors and counsel access to such
books and records during normal business hours provided that the
Principal Purchaser shall give the relevant Seller reasonable notice.
Copies shall be provided at the Principal Purchaser's expense.
5.4
6. MUTUAL REPRESENTATIONS AND WARRANTIES
Each of the Principal Purchaser, the Danish Seller and the Polish
Seller (who adheres to this Umbrella Agreement for the purpose of this
Clause 6) makes the following representations and warranties:
6.1 Corporate Existence/Authority
The Danish Seller is a corporation duly organized and validly existing
under the laws of Denmark, and has the corporate power and authority to
enter into this Umbrella Agreement and each of the Transaction
Agreements to which it is a party and to consummate - or procure the
consummation of - the transactions contemplated hereby or thereby.
The Polish Seller is a corporation duly organized and validly existing
under the laws of Poland, and has the corporate power and authority to
enter into this Umbrella Agreement and each of the Transaction
Agreements to which it is a Party and to consummate - or procure the
consummation of - the transactions contemplated hereby or thereby.
The Principal Purchaser is a corporation duly organized and validly
existing under the laws of the State of Delaware, U.S.A., and has the
corporate power and authority to enter into this Umbrella Agreement and
each of the Transaction Agreements to which it is a Party and to
consummate the transactions contemplated hereby or thereby or to
procure that such transactions are consummated.
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6.2 Authorisation.
The execution and delivery by the Danish Seller and the Polish Seller
of this Umbrella Agreement and each of the Transaction Agreements to
which it is a party and the performance by the Danish Seller hereunder
and thereunder has been duly authorised by the Danish Seller, and this
Umbrella Agreement and each of the Transaction Agreements to which it
is a party is valid and binding on the Danish Seller and the Polish
Seller and enforceable against the Danish Seller and the Polish Seller
in accordance with their respective terms except when such
enforceability may be limited by applicable bankruptcy, insolvency or
similar laws from time to time in effect which affect creditors' rights
generally. The Danish Seller and the Polish Seller are not insolvent
nor are any of the Danish Seller's and the Polish Seller's assets
subject to attachment or seizure (in Danish: udlae ▇▇▇▇▇ arrest).
The execution and delivery by the Principal Purchaser of this Umbrella
Agreement and each of the Transaction Agreements to which it is a party
and the performance by the Principal Purchaser hereunder and thereunder
has been duly authorized by the Principal Purchaser, and this Umbrella
Agreement and each of the Transaction Agreements to which it is a party
is valid and binding on the Principal Purchaser and enforceable against
the Principal Purchaser in accordance with their respective terms
except when such enforceability may be limited by applicable
bankruptcy, insolvency or similar laws from time to time in effect
which affect creditors' rights generally.
6.3 No Conflict.
Neither the execution and delivery of this Umbrella Agreement and each
of the Transaction Agreements to which it is a party, nor the
performance by the Danish Seller and the Polish Seller hereunder or
thereunder does or will (i) violate, conflict with or constitute a
default under any provision of the Danish Seller's or the Polish
Seller's, respectively constitutional documents or applicable law, (ii)
conflict with or result in a breach of any agreement to which the
Danish Seller or the Polish Seller, respectively is a party or by which
its properties are bound other than such covenants and agreements with
respect to which failure to perform would not have a material adverse
effect on the transactions contemplated by this Umbrella Agreement
and/or by any Transaction Agreement, (iii) violate any judgement,
order, injunction, decree or award of any court, administrative agency
or governmental body against, or binding upon, the Danish Seller or the
Polish Seller, respectively or its properties or (iv) constitute a
violation by the Danish Seller or the Polish Seller, respectively of
any law or regulation applicable to the Danish Seller or the Polish
Seller, respectively or its properties.
Neither the execution and delivery of this Umbrella Agreement and/or by
any Transaction Agreement, nor the performance by the Principal
Purchaser hereunder or thereunder does or will (i) violate, conflict
with or constitute a default under any provision of the Principal
Purchaser's constitutional documents or applicable law, (ii) conflict
with or result in a
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breach of any agreement to which the Principal Purchaser is a party or
by which its properties are bound other than such covenants and
agreements with respect- to which failure to perform would not have a
material adverse effect on the transactions contemplated by this
Umbrella Agreement and/or by any Transaction Agreement,, (iii) violate
any judgement, order, injunction, decree or award of any court,
administrative agency or governmental body against, or binding upon,
the Principal Purchaser or its properties or (iv) constitute a
violation by any the Principal Purchaser of any law or regulation
applicable to the Principal Purchaser or its properties.
6.4 No Consents.
The execution, delivery and performance by the Danish Seller and the
Polish Seller respectively of and the consummation of the transactions
contemplated by this Umbrella Agreement and/or by any Transaction
Agreement do not require approval from any shareholder, any holder of
any indebtedness or obligation of any the Danish Seller and the Polish
Seller respectively, or any other person, or any notice to or filing or
recording with, or any consent or approval of, any governmental body
except as specified in the conditions precedent of this Umbrella
Agreement and/or by any Transaction Agreement, which consents shall
have been obtained and shall be in full force and effect as of the
First Completion Date. The Danish Seller and the Polish Seller
respectively has received written advice from its legal counsel which
support the aforesaid representation with regard to company law
matters.
The execution, delivery and performance by the Principal Purchaser of
and the consummation of the transactions contemplated by this Umbrella
Agreement and/or by any Transaction Agreement do not require approval
from any shareholder, any holder of any indebtedness or obligation of
any the Principal Purchaser, or any other person, or any notice to or
filing or recording with, or any consent or approval of, any
governmental body except as specified in the conditions precedent of
this Umbrella Agreement and/or by any Transaction Agreement, which
consents shall have been obtained and shall be in full force and effect
as of the First Completion Date.
6.5 Legal proceedings.
There are no actions, suits or proceedings pending, or to the Danish
Seller's and the Polish Seller's respectively knowledge threatened
against the Danish Seller and the Polish Seller respectively or its
properties before any court, arbitrator, administrative or governmental
body that, if adversely determined, would hinder or prevent the Danish
Seller's and the Polish Seller's respectively ability to carry out the
transactions contemplated by this Umbrella Agreement and/or by any
Transaction Agreement, or affect the right, title or interest of any of
the Purchasers in the Businesses or any part thereof and, as far as the
Danish Seller and the Polish Seller respectively is aware, there is no
basis for any such suits or proceedings.
There are no actions, suits or proceedings pending, or to the Principal
Purchaser's knowledge threatened against the Principal Purchaser or its
properties before any court, arbitrator, administrative or governmental
body that, if adversely determined, would
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hinder or prevent the Principal Purchaser's ability to carry out the
transactions contemplated by this Umbrella Agreement or by any
Transaction Agreement, or affect the right, title or interest of any of
the Purchasers in the Businesses or any part thereof and, as far as the
Principal Purchaser is aware, there is no basis for any such suits or
proceedings.
6.6
the Sellers nor any affiliate of a Seller has during the period of 12
months immediately preceding the First Completion or the Second
Completion respectively transferred, assigned or licensed any part of
the fixed and loose assets (with regard to fixed and loose assets, to
any material extent), the employees, the leases or the intellectual
property rights pertaining to the Businesses, to any affiliate of a
Seller or to any third party other than (i) in the ordinary course of
business and (ii) the grant of a non-exclusive license to ▇▇▇▇▇
Networks N.V. as reflected in the Transaction Agreements.
6.7 Each of the representations and warranties made by the Sellers in this
Umbrella Agreement and/or in any of the Transaction Agreements
(including without limitation the schedules and exhibits thereto) shall
be incorporated by reference in this Umbrella Agreement. Any breach by
any Seller of any of the representations and warranties made by any
Seller in any of the Transaction Agreements (including any schedule or
exhibit thereto) shall be deemed to constitute a breach of the
representations and warranties made by the Danish Seller in this
Umbrella Agreement.
7. INDEMNIFICATION
7.1 The Danish Seller and the Polish Seller (who shall adhere to this
Umbrella Agreement) shall indemnify and hold harmless each of the
Purchasers from and against any and all loss, damage, cost or expense
(including legal fees and expenses), judgements and fines
(collectively, "Damages") (i) caused by any misrepresentation, breach
of warranty or failure to fulfil any covenant, undertaking or agreement
of any of the Sellers contained herein or in any of the Transaction
Agreements or in any schedule or exhibit hereto or thereto or in any
agreement or document delivered or to be delivered pursuant to this
Umbrella Agreement or any of the Transaction Agreements, or (it)
arising from any action or inaction of the Danish Seller and/or the
Polish Seller after the First Completion or the Second Completion
respectively, other than in accordance with the terms of this Umbrella
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Agreement and/or any Transaction Agreement or any schedule or exhibit
hereto or thereto or any agreement or document delivered or to be
delivered pursuant to this Umbrella Agreement or any of the Transaction
Agreements.
The Danish Seller acknowledges that the Purchasers have relied on the
representations and warranties given by the Sellers in this Umbrella
Agreement and the Transaction Agreements and in any schedule or exhibit
hereto or thereto.
The Parties agree that the Sellers' representations and warranties,
agreements, indemnities and covenants in this Umbrella Agreement and
any Transaction Agreement or any schedule or exhibit hereto or thereto
shall not operate to relieve any of the Sellers from any liability
which would otherwise apply under general principles of Danish law.
7.2
7.3 In the event that any third party forwards a claim against any
Purchaser relating to any event or circumstance prior to the relevant
Completion and/or any act or omission of a Seller (a "THIRD PARTY
CLAIM"), such Purchaser must give prompt notice to the relevant Seller
of the Third Party Claim. The relevant Seller may, at its sole cost and
expense, upon notice to the relevant Purchaser within thirty (30) days
after the relevant Seller receives notice of the Third Party Claim,
assume the defense of the Third Parry Claim, with counsel of its
choice. The relevant Seller shall not consent to a settlement of, or
the entry of any judgement arising from any Third Party Claim, unless;
(i) the settlement or judgement is solely for money damages and the
relevant Seller shall have provided unconditional and irrevocable
security for the fulfillment of such settlement or judgement, including
any costs awarded to the relevant third party or; (ii) the relevant
Purchaser consents thereto, which consent shall not be unreasonably
withheld. The relevant Seller shall provide the relevant Purchaser with
thirty (30) days prior notice before it consents to a settlement of, or
the entry of a judgement arising from, any Third Party Claim. The
Purchasers shall be entitled to participate in the defense of (but not
control) any Third Party Claim, the defense of which is assumed by the
relevant Seller, with its own counsel and at its own expense. The
relevant Seller and the relevant Purchaser shall co-operate in the
defense of any Third Party Claim and the relevant records of each party
shall be made available on a timely basis. If the relevant Seller does
not assume the defense of any such claim or proceeding resulting
therefrom in accordance with the terms hereof, the relevant Purchaser
may defend such claim or proceeding in a reasonable manner, including
settling such claim or
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proceeding on such terms as the relevant Purchaser may deem appropriate
after giving thirty (30) days' notice of the same to the relevant
Seller.
7.4 The Principal Purchaser shall procure that on service of any notice to
the Danish Seller of any claim for breach of this Umbrella Agreement or
any Transaction Agreement or any of the schedules or exhibits hereto or
thereto, the relevant Purchaser shall:
7.4.1 take any action the Sellers may reasonably request to avoid or
dispute or resist or appeal or compromise or defend a claim in
relation to a third party subject to the relevant Purchaser
being indemnified by the Danish Seller against all losses,
costs, damages and expenses incurred by that action;
7.4.2 allow the Sellers and their agents access at all reasonable
times to and to inspect and take copies of all necessary books
and records of the relevant Purchaser-,
7.4.3 require the personnel of the relevant Purchaser to provide
statements and proof of evidence and, as commercially
reasonable, to attend any trial or hearing to give evidence or
otherwise and to provide similar assistance to enable the
Sellers to avoid or dispute or resist or appeal or compromise
or defend any claim;
7.4.4 take or procure that any relevant subsidiary shall take all
reasonable steps necessary to mitigate any loss in relation to
any action or claim.
7.5 The provisions in Clause 7.3 shall apply mutatis mutandis in the event
that any third party forwards a claim against any Seller relating to
any event or circumstance prior to Completion of any transaction
contemplated by this Umbrella Agreement or any Transaction Agreement or
any schedule or exhibit hereto or thereto; and/or any act or omission
of a Purchaser.
7.6 To the extent that a Seller discharges any claim by a Purchaser for
indemnification pursuant to this Umbrella Agreement or any of the
Transaction Agreements or any schedule or exhibit hereto or thereto,
the relevant Seller shall be subrogated to all rights of such Purchaser
against third parties.
7.7 Exclusion of Remedies.
The Parties agree that following completion of any transaction
contemplated by this Umbrella Agreement or any Transaction Agreement or
any schedule or exhibit hereto or thereto, no Party to this Umbrella
Agreement shall be entitled to rescind (in Danish: "haeve aftalen")
this Umbrella Agreement or the respective Transaction Agreement or any
schedule or exhibit hereto or thereto in respect of any such
transaction except as stipulated in Clause 9.
For the avoidance of doubt, any other remedies available to the
Purchasers under the law or in equity, including without limitation the
right to claim specific performance and/or injunctive relief, shall not
be excluded.
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7.8 Specific Performance
Each of the Parties acknowledges and agrees that the other Parties
would be damaged irreparably in the event that any of the provisions of
this Umbrella Agreement and/or in any of the Transaction Agreements are
not performed in accordance with their specific terms or otherwise are
breached. Accordingly, each of the Parties agrees that each other Party
shall be entitled to an injunction or injunctions to prevent breaches
of the provisions of this Umbrella Agreement and to enforce
specifically this Umbrella Agreement and the terms and provisions
hereof in any action instituted in any court in addition to any other
remedy to which it may be entitled, at law or in equity.
7.9 Claims against the Escrow Accounts.
In the event that any Purchaser has a claim for indemnification
hereunder or under any Transaction Agreement or any schedule or exhibit
hereto or thereto, such Purchaser shall be entitled to notify the claim
to the Danish Escrow Bank in accordance with the terms and conditions
of the Escrow Agreements. For the avoidance of doubt, all of the Escrow
Accounts established pursuant to the terms of any Transaction Agreement
or any schedule or exhibit thereto shall, subject to Clause 8 of this
Umbrella Agreement, serve as collateral for any claim by any Purchaser
hereunder or under any Transaction Agreement or any schedule or exhibit
hereto or thereto.
7.10 Right of Set 0ff
Subject to Clause 8 of this Umbrella Agreement, each Purchaser shall be
entitled to set off the amount of any claim against any Seller against
any amount due and owing by any Purchaser to any Seller or its
assignee.
8. LIMITATIONS OF SELLERS' LIABILITY
8.1 The liability of the Sellers under this Umbrella Agreement and the
Transaction Agreements and any schedules or exhibits hereto or thereto
shall be limited in accordance with the provisions of Clauses 8.2 to
8.15 of this Umbrella Agreement (inclusive).
8.2 The liability of the Sellers under this Umbrella Agreement and the
Transaction Agreements and any schedules or exhibits hereto or thereto
shall cease on the first anniversary of the First Completion except as
regards any alleged specific breach in respect of which notice in
writing (containing reasonable details of the event or circumstances
giving rise to the breach and a reasonable estimate of the amount of
the liability in question or if such amount is not possible to
determine the Purchasers best estimate of such amount).
Notwithstanding the foregoing, the representations and warranties in
Clauses 6.1 to 6.5 herein shall survive indefinitely,
8.3 Where in relation to a claim for damages under this Umbrella Agreement
and the Transaction Agreements and the schedule and exhibits hereto and
thereto, a notice has
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been served in accordance with Clause 14 of this Umbrella Agreement
then unless proceedings are commenced in respect of that claim by the
issue and service of legal process (which are not satisfied or
withdrawn or settled) within two (2) months of the date of the notice
the Sellers shall cease to be under any liability in respect of that
claim.
8.4 The Sellers shall not be liable for breach of this Umbrella Agreement
and the Transaction Agreements and the schedules and exhibits hereto
and thereto unless:
(a)
(b)
8.5
8.6 The Sellers shall not be liable in respect of any claim for whatever
reason, if the claim:
8.6.1 occurs or arises as a result of any change or changes in
legislation made after the Completion;
8.6.2 occurs or arises wholly or parity out of or as a result of or
in connection with:
8.6.2.1 any change in the nature of the Businesses or in the
manner of conducting the Businesses after the
Completion;
8.6.2.2 any asset acquired by the Purchasers or any of its
affiliates after the date of Completion; or
8.6.2.3 any matter or thing that has been or is made good or
otherwise compensated for at no expense to the
Purchasers.
8.7 Any payment made in respect of any claim by the Sellers shall be deemed
(as between the Sellers and the Purchasers) to be a reduction in the
Danish Purchase Price and the Polish Purchase Price, as applicable,
payable by the Sellers to the Purchasers under this Umbrella Agreement
and the Transaction Agreements.
8.8 The Parties each agree that they have not entered into this Umbrella
Agreement and Transaction Agreements in reliance upon any
representation or promise other than those incorporated herein or
therein and acknowledge that they have not relied upon, and will make
no claim hereafter in respect of any such representation or promise
made by or on behalf of the Sellers.
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8.9 The Sellers shall not be liable in respect of any breach of any of the
representation and warranty if and to the extent that the loss
occasioned thereby has been recovered under the same or any other
representation and warranty,
8.10 Subject to clause 12, the representation and warranty and any
indemnities or undertakings given or made by the Sellers in this
Umbrella Agreement and the Transaction Agreements and the schedules or
the exhibits hereto and thereto shall be actionable only by the
Purchasers or any of them and no other party, shall be entitled to make
any claim or to take any action whatsoever against the Sellers under or
arising out of or in connection therewith.
8.11 The Purchasers shall not be entitled to claim that any fact, matter, or
circumstance constitutes a breach of this Umbrella Agreement or the
Transaction Agreements or the schedules or the exhibits hereto or
thereto or gives rise to a claim hereunder or thereunder if or to the
extent that such fact, matter, or circumstance has been reasonably
disclosed in the Disclosure Volume.
8.12 If any of the Sellers pays to any of the Purchasers an amount in
respect of any claim under this Umbrella Agreement or the Transaction
Agreements or the schedules or the exhibits hereto or thereto and any
of the Purchasers subsequently recovers from a third party (including
any insurer or tax authority) a sum which is referable to that claim
(including any tax saving), such Purchaser shall forthwith repay to
such Seller so much of the amount paid by such Seller does not exceed
the sum recovered from the third party less all reasonable costs,
charges, and expenses incurred by such Purchaser in obtaining that
payment and in recovering that sum from the third party.
8.13 To the extent that any representation and warranty is made in respect
of a corresponding liability, the Sellers shall not be liable to make
any payment in respect of any breach of any of the representations and
warranties unless and until one of the Purchasers has become finally
liable to make payment in respect of any corresponding liability.
8.14 Exclusion of limitations.
None of the limitations set out in Clause 8 or anywhere else in this
Umbrella Agreement and the Transaction Agreements and any schedules or
exhibits hereto or thereto shall apply in any circumstances where the
breach of a representation, warranty or covenant made by a Seller
arises out of or as a result of fraud or willful or grossly negligent
(in Danish: "forsaet ▇▇▇▇▇ grov uagtsomhed") misrepresentation,
concealment, mis-statement or other similar willful or grossly
negligent conduct of such Seller or any of its respective directors,
officers or employees.
8.15 The Sellers shall not be liable for loss of profits, revenues and
savings.
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9. TERMINATION OF THE UMBRELLA AGREEMENT
9.1 The Principal Purchaser may terminate this Umbrella Agreement and any
of the Transaction Agreements by giving written notice to the Danish
Seller at any time prior to the completion of all of the Transaction
Agreements (provided that if termination occurs after the completion of
some - but not all - of the transactions contemplated by the
Transaction Agreements, such termination shall take effect only in
respect of such transactions which remain uncompleted at the time of
such termination) in the following events:
A. in the event that any Seller has breached in any material
respect any material representation, warranty, or covenant
contained in this Umbrella Agreement or in any of the
Transaction Agreements or in any schedule or exhibit hereto or
thereto and the Principal Purchaser has notified the Danish
Seller of such breach, and the breach has continued without
cure for a period of 14 days after the notice of breach. The
Parties agree: that for the purpose of this Clause 9.1 a
"breach in any material respect" shall be construed in the
context of the transactions contemplated by the Umbrella
Agreement and the Transaction Agreements as a whole, provided
that for the purposes solely for determining the Purchaser's
right to terminate under this Clause any breach by any Seller
of its representations and warranties in respect of Clauses
6.1 (corporate existence/authority), 6.2 (authorization), 6.3
(no conflict), 6.4 (no consents) or 6.5 (legal proceedings)
(or similar representations made in respect of any of the
Transaction Agreements shall be considered "a breach in any
material respect"; or
B. if on or before 31 December 1999, any transaction contemplated
by this Umbrella Agreement or any Transaction Agreement has
not been completed provided, that such non-completion is
attributable to events and/or circumstances for which any of
the Sellers bears the risk.
9.2 If any Party terminates this Umbrella Agreement pursuant to this clause
9, all rights and obligations of the Parties under this Umbrella
Agreement and under any Transaction Agreement which has not been
completed shall terminate without any liability of any party thereto or
hereto (except for any liability of any party hereto or thereto then in
breach of this Umbrella Agreement or any uncompleted transaction under
any Transaction Agreement).
For the avoidance of doubt, the termination of this Umbrella Agreement
and any uncompleted Transaction Agreement shall be without prejudice to
the rights and obligations of any Seller and any Purchaser under any
Transaction Agreement which has been completed and under this Umbrella
Agreement in respect of any such completed Transaction Agreements.
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10. CONFIDENTIALITY PRESS RELEASES AND PUBLIC ANNOUNCEMENTS
10.1 The terms and conditions of this Umbrella Agreement and all of the
Transaction Agreements, including their existence, shall be considered
confidential information and shall not be disclosed by any party hereto
or thereto to any third party except in accordance with the provisions
set forth below.
10.2 No party shall issue any press release or make any public announcement
relating to the subject matter of this Umbrella Agreement or any of the
Transaction Agreements without the prior written approval of the other
Parties. No other announcements regarding this Umbrella Agreement or
any of the Transaction Agreements in any press release, conference,
advertisement, announcement, professional or trade publication, mass
marketing materials or otherwise to any third party may be made without
such prior written consent.
10.3 Notwithstanding the foregoing, any Party may disclose any element of
this Umbrella Agreement or any of the Transaction Agreements to its
current employees on a 'necessity to know' basis, investment bankers,
lenders, accountants and legal advisors, in each case only where such
persons or entities are under appropriate nondisclosure obligations.
10.4 In the event that any Party is requested or becomes legally compelled
(including without limitation, pursuant to securities laws and
regulations (which shall include the applicable rules governing
securities listed on Kobenhavns Fondsbors and Nasdaq)) to
disclose the existence or contents of this Umbrella Agreement or any of
the Transaction Agreements in contravention of the provisions of this
clause, such Party (the "Disclosing Party") shall provide the other
Parties (the "Non-Disclosing Parties") with prompt written notice of
that fact so that the appropriate party may seek (with the co-operation
and reasonable efforts of the other Parties) a protective order,
confidential treatment or other appropriate remedy. In such event, the
Disclosing Party shall furnish only that portion of the information
which is legally required and shall exercise reasonable efforts to
obtain reliable assurance that confidential treatment will be accorded
such information to the extent reasonably requested by any
Non-Disclosing Party.
10.5 The provisions of this Clause 10 shall be in addition to, and not in
substitution for, the provisions of any separate non-disclosure
agreement executed by any of the Parties hereto with respect to the
transactions contemplated hereby. Additional disclosures and exchange
of confidential information between the Danish Seller and the Principal
Purchaser shall be governed by the terms of the corporate
non-disclosure agreement number 102755, dated 6th August 1999, executed
by the Danish Seller and the Principal Purchaser, and any confidential
information transmittal records provided in connection therewith.
10.6 All notices required under this clause shall be made pursuant to Clause
14 of this Umbrella Agreement. The foregoing duty to provide notice
shall not prevent or restrict a party from disclosing facts, if legal
requirements do not permit a party to give such notice before
disclosing.
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11. ENTIRE AGREEMENT
This Umbrella Agreement and the Transaction Agreements (including the
documents referred to and the Schedules attached hereto and thereto)
constitutes the entire agreement between the Parties and supersedes any
prior understandings, agreements or representations by or between the
Parties, written or oral, to the extent they related in any way to the
subject matter hereof.
12. SUCCESSION AND ASSIGNMENT
This Umbrella Agreement shall be binding upon and inure to the benefit
of the Parties named herein and their respective successors and
permitted assigns. No Party may assign either this Umbrella Agreement
or any of its rights, interests, or obligations hereunder without the
prior written approval of the other Parties; provided, however, that
each Purchaser may (i) assign any or all of its rights and interests
hereunder or under any of the Transaction Agreements to one or more of
its affiliates and (ii) designate one or more of its affiliates to
perform its obligations hereunder or under any of the Transaction
Agreements (in any or all of which cases such Purchaser nonetheless
shall remain responsible for the performance of all of its obligations
hereunder).
13. COUNTERPARTS
This Umbrella Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together
will constitute one and the same instrument.
14. NOTICES
All notices, requests, demands, claims, and other communications
hereunder will be in writing. Any notice, request, demand, claim, or
other communication hereunder shall be deemed duly given if delivered
solely in accordance with the following alternative methods of
delivery, and shall be deemed to be given: (a) following receipt on the
next business day in the place of receipt after delivery, if delivered
by hand; (b) two (2) business days after delivery, if delivered by
Federal Express or similar internationally recognized overnight
courier, freight prepaid; or (c) two (2) business days after delivery,
if delivered by confirmed facsimile transmission. Any such notice,
request, demand, claim or other communication shall be addressed:
if to the Principal Purchaser, at:
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Intel Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇
Attn.: M&A Portfolio Manager
(MIS RN6-46)
Fax: + ▇ (▇▇▇) ▇▇▇ ▇▇▇▇
with a copy to:
Intel Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇
Attn.: General Counsel
(M/S SC4-203)
Fax: + ▇ (▇▇▇) ▇▇▇ ▇▇▇▇
if to the Danish Seller at:
▇▇▇▇▇▇ ▇/▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attn.: Legal Affairs
Fax: ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇
or at such other address as a party may designate by ten (10) days'
advance written notice to the other parties pursuant to the provisions
above.
15. AMENDMENTS AND WAIVERS
No amendment of any provision of this Umbrella Agreement and/or any of
the Transaction Agreements and/or any schedule or exhibit hereto or
thereto shall be valid unless the same shall be in writing and signed
by each Party to the relevant Agreement. No waiver by any Party of any
default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of warranty
or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
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16. SEVERABILITY
Any term or provision of this Umbrella Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof
or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
17. EXPENSES
Each of the Parties will bear his or its own costs and expenses
(including legal fees and expenses) incurred in connection with this
Umbrella Agreement and the transactions contemplated hereby.
The Sellers shall carry all costs and expenses in relation to stamp
duty, value added tax or other levies arising out of or as a result of
this Umbrella Agreement, the Transaction Agreements, any schedule and
exhibit hereto or thereto and the transactions contemplated hereby and
thereby.
18. PROPER LAW AND JURISDICTION
Save for the enforcement of any Intellectual Property outside of
Denmark and subject to specific election of a different system of law
and/or dispute resolution venue in any of the Transaction Agreements
the construction and validity and performance of' this Umbrella
Agreement and any of the schedules and exhibits hereto shall be
governed by the laws of Denmark: and each Party submits to the
exclusive jurisdiction of the Danish courts for the purposes of
determining any dispute arising out of this Umbrella Agreement.
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SCHEDULE A
DEFINITIONS
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SCHEDULE B
DANISH BUSINESS AGREEMENT
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SCHEDULE C
DANISH FE PATENTS AGREEMENT
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SCHEDULE D
DANISH REMAINING FE IP AGREEMENT
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SCHEDULE E
DANISH BASE IP AGREEMENT
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SCHEDULE F
POLISH BUSINESS AGREEMENT
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SCHEDULE G
POLISH FE PATENTS AGREEMENT
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SCHEDULE H
POLISH REMAINING FE IP AGREEMENT
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SCHEDULE I
POLISH BASE IP AGREEMENT
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SCHEDULE J
FE IP GRANT BACK LICENCE AGREEMENT
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SCHEDULE K
WARRANTY SUPPORT AGREEMENT
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THIS UMBRELLA AGREEMENT IS SIGNED BY:
FOR THE PRINCIPAL PURCHASER
INTEL CORPORATION
By: /s/ ▇. ▇. ▇▇▇▇▇▇
Name: ▇. ▇. ▇▇▇▇▇▇
Title: Attorney-In-Fact
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THIS UMBRELLA AGREEMENT IS SIGNED BY:
FOR THE DANISH SELLER
OLICOM A/S
By: /s/ N. C. Furu
Name: N. C. Furu
Title: CEO
In adherence by Polish Seller
OLICOM POLAND Sp. z.o.o.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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