EXHIBIT 10.41
ASSET TRANSFER AGREEMENT
between
TEXAS INSTRUMENTS INCORPORATED,
as Purchaser,
and
▇▇▇▇▇▇ ADVANCED TECHNOLOGY (MALAYSIA) SDN. BHD,
as Seller.
ASSET TRANSFER AGREEMENT
This asset transfer agreement (this "Agreement") is made and entered into
as of December 3, 1998, by and between Texas Instruments Incorporated, a
Delaware corporation ("Purchaser"), on the one hand, and ▇▇▇▇▇▇ Advanced
Technology (Malaysia) Sdn. Bhd, a Malaysian corporation, ("Seller"), on the
other hand.
RECITALS:
WHEREAS, Seller presently conducts the business (the "Commercial Logic
business") of assembling and testing commercial digital logic integrated
circuits (the "Commercial Logic Products"); and
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
exclusive right to manufacture, market and sell the Commercial Logic products,
and the goodwill and technical know-how of Seller used or useful in connection
with the Commercial Logic Business, all on the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreement herein contained, the parties hereto agree as follows:
I. DEFINITIONS
1.1 Definitions. As used in this Agreement, unless the context otherwise
requires, capitalized terms used in this Agreement shall have the meanings set
forth on Exhibit A hereto.
II. PURCHASE OF ASSETS
2.1 Purchase and Sale of Transferred Assets. Seller hereby sells,
transfers, conveys, assigns and delivers, and Purchaser hereby purchases and
accepts, all of Sellers' right, title and interest in the goodwill, technical
know-how and processes associated with the commercial logic business; and to the
rights, properties and assets described in this Section 2.1 (collectively, the
"Transferred Assets"), free and clear of all Liens except Permitted Liens:
(a) Products. All rights, title and interest of Seller in and to the
Commercial Logic Products and the manufacture, marketing and sale thereof.
(b) Component Testing Software and Hardware and Associated
Documentation. The component software programs, associated probe cards and final
test fixtures (including diagrams thereof), and associated documentation.
(c) Product Software. The design, development, application and
technical support software and associated documentation.
(d) Technical Data. All technical information related to the
Commercial Logic Products and the manufacture, marketing and sale thereof.
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(e) Books and Records. All the books and records of the Commercial
Logic Business.
2.2 Excluded Assets. No rights, properties or assets of Sellers shall be
included in the Transferred Assets except to the extent expressly referenced in
Section 2.1. As an example, no cash, work-in-process, receivables, fixtures,
realty, capital assets, or management information systems are included as
Transferred Assets. Purchaser shall not acquire under the terms of this
Agreement any title or interest in the name "▇▇▇▇▇▇" or "▇▇▇▇▇▇ Semiconductor"
or Sellers' monograms, logos, trademarks, or any variations or combinations
thereof.
III. [INTENTIONALLY OMITTED]
IV. PURCHASE PRICE
4.1 Purchase Price. In consideration of the conveyance of Purchaser of the
Transferred Assets and the other rights granted to Purchaser pursuant hereto,
Purchaser shall pay the Closing Date Payment to the Seller in accordance with
Section 4.2.
4.2 Payments of Purchase Price. At the Closing, Purchaser will pay U.S.
$7,800,000 (the "Closing Date Payment") to the Seller by wire transfer.
V. CLOSING
5.1 Closing. The consummation of the transactions contemplated hereby (the
"Closing") shall take place at the offices of Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ (or at such other place as the parties
may designate), at 9:00 a.m. on December 3, 1998 or the third Business Day after
such later date as the conditions specified in Sections 5.4 and 5.5 are
fulfilled. The date on which the Closing is effected is referred to in this
Agreement as the "Closing Date."
5.2 Deliveries at Closing. At the Closing:
(a) Sellers shall deliver to Purchaser the items described in
clauses (i) through (iii) below:
(i) evidence that the party signing this Agreement on behalf
of Seller is authorized to do so;
(ii) the officers' certificates referenced in Section 5.4(c);
and
(iii) all other documents, certificates, instruments or
writings reasonably requested by Purchaser in connection herewith.
(b) Purchaser shall deliver to Seller the items described in clauses
(i) through (iv) below:
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(i) the Closing Date Payment by wire transfer of immediately
available funds to the account or accounts designated by Seller no later than
two Business Days prior to Closing;
(ii) evidence that the party signing this Agreement on behalf
of Purchaser is authorized to do so;
(iii) the officer's certificate referenced in Section 5.5(c);
and
(iv) all other documents, certificates, instruments or
writings reasonably requested by Sellers in connection herewith.
5.3 Delivery of Purchased Assets. Title to the Transferred Assets passes
to Purchaser as of the Closing at the applicable places of business of Seller.
Promptly following the Closing, Sellers will place Purchaser in full possession
and control of the Transferred Assets. All information capable of electronic
transmission will be transmitted to Purchaser in such manner. All other assets
and information will be delivered by Seller to such locations as Purchaser shall
designate by means of delivery reasonably designated by Purchaser, but at
Seller's cost and risk of loss.
VI. REPRESENTATIONS AND WARRANTIES OF SELLERS
Seller makes the following representations and warranties to Purchaser,
each of which shall be true and correct as of the date hereof and as of the
Closing Date and shall be unaffected by any investigation heretofore or
hereafter made.
6.1 Organization and Good Standing. HAT is a corporation validly existing
and in good standing under the laws of Malaysia and has the requisite corporate
power and authority to own, lease or otherwise hold its properties and assets
and to carry on its business as presently conducted.
6.2 Authorization and Effect of Agreement. Seller has the requisite
corporate power and authority to execute and to deliver this Agreement and to
perform the transactions contemplated hereby. The execution and delivery by
Seller of this Agreement and the performance by them of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Seller. This Agreement has been duly executed and delivered by
Seller and constitutes a valid and binding agreement of Seller, enforceable
against moratorium, and similar laws affecting creditors' rights and remedies
generally and subject, as to enforceability, to general principles of equity.
6.3 No Conflicts. The execution and delivery of this Agreement by Seller
does not, and the performance by Sellers of the transactions contemplated by
this Agreement will not, conflict with, or result in any violation of, or
constitute a default under, or, as applicable, give rise to the creation of a
Lien upon any of the Transferred Assets or to a right of termination,
cancellation or acceleration of any obligation or to a loss of a benefit under,
(a) any provision of the Certificate of Incorporation or Bylaws or other
applicable constituent documents of Seller, or (b) any Law or Order applicable
to or binding on either Seller or its assets. Except for expiration of the
waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act (the "▇▇▇
▇▇▇"),
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no Consent is required to be obtained, made or given (whether pursuant to
applicable Law, Contract or otherwise) in connection with the execution and
delivery of this Agreement by Seller or the performance by Seller of the
transactions contemplated hereby.
6.4 Financial Data. All historical financial data related to the
Commercial Logic Business provided to Purchaser in connection with the
negotiation of the transactions contemplated hereby (i) was accurately extracted
from the books and records of Seller, (ii) except as identified on Schedule 6.5
hereto, was prepared in accordance with generally accepted accounting principles
consistently applied, and (iii) fairly presents in all material respects the
assets, liabilities and results of operations of the Commercial Logic Business.
6.5 Litigation. There are no judicial or administrative actions,
proceedings or investigations pending or, to Seller's knowledge, threatened that
question the validity of this Agreement or any action taken or to be taken by
Seller in connection with this Agreement. There are no lawsuits, claims,
administrative or other proceedings or investigations relating to the conduct of
the Commercial Logic Business or otherwise affecting the Transferred Assets
pending, or, to Seller's knowledge, threatened against Seller. There are no
judgments, orders or decrees of any Governmental Authority binding on Seller
that relate to the Commercial Logic business or otherwise affect the Transferred
Assets.
6.6 Title to and Condition of Assets. Seller has, and at Closing, Seller
will convey to Purchaser, good, valid and indefeasible title to the Transferred
Assets, free and clear of all Liens other than Permitted Liens. The Transferred
Assets, taken as a whole, are usable in the regular and ordinary course of
business and conform to all applicable Laws.
6.7 Disclosure. No representation or warranty of Seller contained herein,
and no statement contained in any document or other instrument to be furnished
by Seller to Purchaser in connection with the transactions contemplated hereby,
contains or will contain any untrue statements of a material fact or omits or
will omit to state a material fact necessary to make the representation,
warranty or statement so made not misleading.
VII. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby makes the following representations and warranties to
Seller, each of which shall be true and correct as of the date hereof and as of
the Closing Date and shall be unaffected by any investigation heretofore or
hereafter made.
7.1 Corporate Organization. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the requisite corporate power and authority to own, lease or otherwise
hold its properties and assets and to carry on its business as presently
conducted.
7.2 Authorization and Effect of Agreement. Purchaser has the requisite
corporate power and authority to execute and deliver this Agreement and to
perform the transactions contemplated hereby. The execution and delivery by
Purchaser of this Agreement and the performance by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Purchaser. This Agreement has been duly executed and delivered by
Purchaser and constitutes a valid and binding agreement of Purchaser,
enforceable
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against Purchaser in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and subject, as to enforceability, to general
principles of equity.
7.3 No Conflicts. The execution and delivery of this Agreement by
Purchaser does not, and the performance by Purchaser of the transactions
contemplated by this Agreement will not, conflict with, or result in any
violation of, or constitute a default under (a) any provision of the Certificate
of Incorporation or Bylaws of Purchaser, (b) any of the terms, conditions, or
provisions of any agreement or other document by which Purchaser is bound, or
(c) any Law or Order applicable to or binding on Purchaser. Except for
expiration of the waiting period under the HSR Act, no Consent is required to be
obtained, made or given (whether pursuant to applicable law, Contract or
otherwise) in connection with the execution and delivery of this Agreement by
Purchaser or the performance by Purchaser of the transactions contemplated
hereby.
7.4 Litigation. There are no judicial or administrative actions,
proceedings or investigations pending or, to Purchaser's knowledge, threatened
that question the validity of this Agreement or any action taken or to be taken
by Purchaser in connection with this Agreement.
7.5 Disclaimer. Other than as specifically provided in this Agreement or
in any exhibit, schedule or document delivered pursuant hereto, the Purchaser
acknowledges and agrees that the Transferred Assets are transferred on an "as
is, where is," basis "with all faults" and that the Seller is not making any
further representations or warranties of any kind, express or implied,
respecting the Transferred Assets. The Purchaser acknowledges that any
projections provided by Seller are for illustrative purposes only and do not
form the basis for any liability.
VIII. [INTENTIONALLY OMITTED]
IX. POST-CLOSING COVENANTS
9.1 Covenant Not to Compete. Seller agrees that prior to the fifth
anniversary of the Closing Date, Seller will not, directly or indirectly, own,
manage, operate, control or participate in the ownership, management, operation
or control of any business, whether in corporate, proprietorship or partnership
form or otherwise, engaged in assembly and test of Commercial Logic Products or
other products in these families having similar integration levels and
performance characteristics; provided, however, that nothing herein shall
preclude Seller from (i) owning an equity interest of five percent or less (a)
of any publicly traded company listed on a national stock exchange or on the
NASDAQ national market system or (b) in ventures, partnerships or other entities
that do not constitute affiliates (as such term is defined in the Securities
Exchange Act of 1934, as amended) of Seller, (ii) acquiring the capital stock or
assets of any business that derives less than 10% of its consolidated revenues
from an activity prohibited by the foregoing provisions, so long as the Seller
makes their best efforts to divest that portion of the acquired business that is
engaged in such prohibited activity within 12 months following such acquisition,
(iii) engaging in the manufacturing, marketing and sale of Military Logic
Products, radiation hardened products or other military products having similar
integration levels and performance characteristics, (iv) manufacturing,
marketing, designing or selling products or systems that integrate or utilize
Commercial Logic Products manufactured by third
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parties, or (v) manufacturing, marketing, designing or selling products or
systems of any other digital logic product having substantially greater
integration and performance characteristics.
9.2 Confidentiality. Seller agrees that from and after the Closing, Seller
will not, directly or indirectly, disclose, reveal, divulge or communicate to
any person or entity other than authorized officers, directors and employees of
Purchaser, or use or otherwise exploit for its own benefit or for the benefit of
anyone other than Purchaser, any Confidential Information (as defined below).
Seller shall not have any obligation to keep confidential any Confidential
Information if and to the extent disclosure thereof is specifically required by
Law or in the enforcement of its rights hereunder; provided, however, that in
the event disclosure is required by applicable Law, Seller shall, to the extent
reasonably possible, provide Purchaser with prompt notice of such requirement
prior to making any disclosure so that Purchaser may seek an appropriate
protective order. For purposes of this Section 9.2, "Confidential Information"
shall mean any confidential information with respect to the conduct or details
of the Commercial Logic Business, including, without limitation, methods of
operation, customers, and customer lists, products, proposed products, former
products, prices, fees, costs, plans, designs, technology, inventions, trade
secrets, know-how, software, marketing methods, policies, plans, or other
specialized information or proprietary matters. The term Confidential
Information does not include, and there shall be no obligation hereunder with
respect to, information that (a) is generally available to the public on the
date of this Agreement, (b) becomes generally available to the public other than
as a result of a disclosure by Seller not otherwise permissible thereunder, (c)
is independently developed by Seller as established by documentary evidence or
(d) Seller learns from other sources where such sources have not, to Seller's
knowledge, violated their confidentiality obligation to Purchaser.
9.3 Specific Performance: Reformation. The parties hereto specifically
acknowledge and agree that the remedy at law for any breach of Section 9.1 or
9.2 will be inadequate and that Purchaser, in addition to any other relief
available to it, shall be entitled to temporary and permanent injunctive relief
without the necessity of proving actual damage or posting any bond whatsoever.
In the event that the provisions of Section 9.1 or 9.2 should ever be deemed to
exceed the limitations provided by applicable Law, then the parties hereto agree
that such provisions shall be reformed to set forth the maximum limitations
permitted.
9.4 Maintenance of Books and Records. Seller and Purchaser shall preserve
until the seventh anniversary of the Closing Date all records possessed by such
party relating to the assets, liabilities or operations of the Commercial Logic
Business prior to the Closing Date. After the Closing Date, where there is a
legitimate purpose, such party shall provide the other party with access, upon
prior reasonable written request specifying the need therefor, during regular
business hours, to (i) the relevant officers and employees of such party and
(ii) the books of account and records of such party, but, in each case, only to
the extent relating to the assets, liabilities and operations of the Commercial
Logic Business prior to the Closing Date, and the other party and its
representatives shall have the right to make copies of such books and records;
provided, however, that the foregoing right of access shall not be exercisable
in such a manner as to interfere unreasonably with the normal operations and
business of such party; and further provided that, as to so much of such
information as constitutes trade berets or confidential business information of
such party, the requesting party and its representatives will use due care to
not disclose such information except (i) as required by Law, (ii) with the prior
written consent
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of such party, which consent shall not be unreasonably withheld, or (iii) where
such information becomes available to the public generally, or becomes generally
known to competitors of such party, through sources other than the requesting
party and its representatives. Such records may nevertheless be destroyed by a
party if such party sends the other party written notice of its intent to
destroy records, specifying with particularity the contents of the records to be
destroyed. Such records may then be destroyed after the 30th day following
delivery of such notice unless the other party objects to the destruction, in
which case the party seeking to destroy the records shall either agree to retain
such records or to deliver such records to the objecting party.
X. [INTENTIONALLY OMITTED]
XI. [INTENTIONALLY OMITTED]
XII. MISCELLANEOUS PROVISIONS
12.1 Notices. All notices and other communications required or permitted
hereunder will be in writing and, unless otherwise provided in this Agreement,
will be deemed to have been duly given when delivered in person or when
dispatched by electronic facsimile transfer (confirmed in writing by mail
simultaneously dispatched) or one business day after having been dispatched by a
nationally recognized overnight courier service to the appropriate party at the
address specified below:
(a) If to Seller, to:
▇▇▇▇▇▇ Advanced Technology (Malaysia) Sdn Bhd
73 Lorong Enggang
Ulu Kelang, Free Trade ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attention to: ▇. ▇. ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ Semiconductor
▇.▇. ▇▇▇ ▇▇▇, ▇'▇ ▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, M'S ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) If to Purchaser, to:
Texas Instruments Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇'▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
- or -
▇.▇. ▇▇▇ ▇▇▇▇▇▇, M'S 3995
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Texas Instruments Incorporated
8505 Forest lane, M'S 8658
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
- or -
▇.▇. ▇▇▇ ▇▇▇▇▇▇, M'S 8658
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ 3. ▇▇▇▇▇▇, Esq.
Facsimile No.: (972) 480-506l
or to such other address or addresses as any such party may from time to time
designate as to itself by like notice.
12.2 Expenses. Except as otherwise expressly provided herein, each party
hereto will pay any expenses incurred by it incident to this Agreement and in
preparing to consummate and consummating the transactions provided for herein.
12.3 Successors and Assigns. This Agreement will be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns, but will not be assignable or delegable by any party without
the prior written consent of the other party; provided, however, that upon
notice to Seller delivered in accordance with Section 12.1, Purchaser may assign
or delegate any or all of their rights or obligations under this Agreement to
any Affiliate thereof or to any Person that directly or indirectly acquires,
after the Closing, all or substantially all of the assets or voting stock of
Purchaser, but such assignment or delegation shall not relieve Purchaser of any
obligation hereunder.
12.4 Waiver. Purchaser may, by written notice to Seller, and Seller may,
by written notice to Purchaser, (a) extend the time for performance of any of
the obligations of the other party under this Agreement, (b) waive any
inaccuracies in the representations or warranties of the other party contained
in this Agreement, (c) waive compliance with any of the conditions or covenants
of the other party contained in this Agreement, or (d) waive or modify
performance of any of the obligations of the other party under this Agreement;
provided however, that no such party may, without the prior written consent of
the other parties, make or grant such extension of time, waiver of inaccuracies
or compliance or waiver or modification of performance with respect to its
representations, warranties, conditions or covenants hereunder. Except as
provided
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in the immediately preceding sentence, no action taken pursuant to this
Agreement will be deemed to constitute a waiver of compliance with any
representations, warranties, conditions or covenants contained in this Agreement
and will not operate or be construed as a waiver of any subsequent breach,
whether of a similar or dissimilar nature.
12.5 [INTENTIONALLY OMITTED.]
12.6 Amendments, Supplements, Etc. This Agreement may be amended or
supplemented at any time by additional written agreements as may mutually he
determined by Purchaser and Seller to be necessary, desirable or expedient to
further the purposes of this Agreement or to clarify the intention of the
parties.
12.7 Rights of the Parties. Nothing expressed or implied in this Agreement
is intended or will be construed to confer upon or give any Person other than
the parties hereto any rights or remedies under or by reason of this Agreement
or any transaction contemplated hereby.
12.8 Further Assurances. From time to time, as and when requested by any
party hereto, the other party will execute and deliver, or cause to be executed
and delivered, all such documents and instruments, make such other deliveries
and take such other actions as may be reasonably necessary to consummate the
transactions contemplated by this Agreement.
12.9 Applicable Law. This Agreement and the legal relations among the
parties hereto will be governed by and construed in accordance with the rules
and substantive laws of the State of Florida, United States of America, without
regard to conflicts of law provisions thereof
12.10 Execution in Counterparts. This Agreement may be executed in two or
more counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same agreement.
12.11 Tides and Headings. Tides and headings to Sections herein are
inserted for convenience of reference only, and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
12.12 Invalid Provisions. If any provision of this Agreement is held to he
illegal, invalid, or unenforceable under any present or future Law, and if the
rights or obligations under this Agreement of Seller on the one hand and
Purchaser on the other hand will not be materially and adversely affected
thereby, (a) such provision will be fully severable; (b) this Agreement will be
construed and enforced as if such illegal, invalid, or unenforceable provision
had never comprised a part hereof; (c) the remaining provisions of this
Agreement will remain in full force and effect and will not be affected by the
illegal, invalid, or unenforceable provision or by its severance from this
Agreement; and (d) in lieu of such illegal, invalid, or unenforceable provision,
there will be added automatically as a part of this Agreement a legal, valid,
and enforceable provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible.
12.13 Bulk Sales. Purchaser waives compliance by Seller with the
provisions of the so-called bulk sales Law of any applicable jurisdiction;
provided, however, that Seller will indemnify, defend and hold harmless
Purchaser in respect of any Indemnifiable loss relating to,
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resulting from or arising out of Seller' failure to comply with such Laws in
connection with the transactions contemplated by this agreement.
12.14 Transfers. Purchaser and Seller will cooperate and take such action
(as may be reasonably requested by the other in order to effect an orderly
transfer of the Transferred Assets with a minimum of disruption to the
operations and employees of the businesses of Purchaser and Seller.
12.15 Transfer Taxes. All sales, use, transfer, stamp, conveyance, value
added or other similar taxes, duties, excises or governmental charges imposed by
any taxing jurisdiction, domestic or foreign, and all recording or filing fees,
notarial fees or other similar costs of Closing with respect to the transfer of
the Transferred Assets or otherwise on account of this Agreement or the
transactions contemplated hereby will be borne one-half by Seller and one-half
by Purchaser.
12.16 Brokers. Purchaser hereby agrees to indemnify and hold harmless
Seller, and Seller hereby agrees to indemnify and hold harmless Purchaser,
against any liability, claim, loss, damage or expense incurred by Seller or
Purchaser, respectively, relating to any fees or commissions owed to any broker,
finder or financial advisor as a result of actions taken by Purchaser or Seller,
respectively.
12.17 Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to recover in such action its reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which it may be
entitled.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
TEXAS INSTRUMENTS INCORPORATED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice president - Texas Instruments,
Manager World Wide Standard Linear and
Logic Products
▇▇▇▇▇▇ ADVANCED TECHNOLOGY
(MALAYSIA) SDN. BHD
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
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EXHIBIT A
DEFINITIONS
"Affiliate" shall mean with respect to any Person, any other person who,
directly or indirectly, controls, is controlled by, or is under common control
with that Person.
"Agreement" shall have the meaning ascribed to such term in the preamble
to this Agreement.
"Business Day" shall mean a day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to
Close.
"Closing Date Payment" shall have the meaning ascribed to such term in
Section 4.2 of this Agreement.
"Closing Date" shall have the meaning ascribed to such term in Section 5.1
of this Agreement.
"Closing" shall have the meaning ascribed to such term in Section 5.1 of
this Agreement.
"Commercial Logic Business" shall have the meaning ascribed to such term
in the recitals to this Agreement.
"Commercial Logic Products" shall have the meaning ascribed to such term
in the recitals to this Agreement.
"Consent" shall mean any consent, approval or authorization of, notice to,
or designation, registration, declaration or filing with, any Person.
"Contract" shall mean any agreement, contract, lease, commitment, license,
undertaking or other legally binding contractual right or obligation to which a
Person is a party or by which a Person or its assets or properties are bound.
"Governmental Authority" shall mean any federal, state, local or foreign
government or any subdivision, agency, instrumentality, authority, department,
commission, board or bureau thereof or any federal, state, local or foreign
court, tribunal or arbitrator.
"HSR Act" shall have the meaning ascribed to such term in Section 6.3 of
this Agreement.
"HAT" shall have the meaning ascribed to such term in the preamble to this
Agreement.
"Laws" shall mean all federal, state, local or foreign laws, ordinances,
rules and regulations.
"Liens" shall mean all tide defects or objections, mortgages, liens,
claims, charges, pledges, or other encumbrances of any nature whatsoever,
including without limitation licenses, leases, chattel or other mortgages,
collateral security arrangements, pledges, tide imperfections,
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defect or objection liens, security interests, conditional and installment sales
agreements, easements, encroachments or restrictions, of any kind and other tide
or interest retention arrangements, reservations or limitations of any nature.
"Order" shall mean any judgment, award, order, writ, injunction or decree
issued by any Governmental Authority.
"Permits" shall mean all permits, licenses, approvals, franchises, notices
and authorizations issued by any Governmental Authority.
"Permitted Liens" shall mean Liens for taxes, assessments and other
governmental charges which are not due and payable or which may thereafter be
paid without penalty.
"Person" shall mean any individual, partnership, joint venture,
corporation, trust, unincorporated organization, Governmental Authority or other
entity.
"Purchase Price" shall have the meaning ascribed to such term in Section
4.1 of this Agreement.
"Purchaser" shall have the meaning ascribed to such term in the recitals
to this Agreement.
"Seller" shall have the meaning ascribed to such term in the preamble to
this Agreement.
"Transferred Assets" shall have the meaning ascribed to such term in
Section 2.1 of this Agreement.
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Schedule 6.5
Financial Data "GAAP" Exceptions
Historical financial data used in this transaction was prepared in accordance
with generally accepted accounting principles (GAAP) except for the data
regarding the following matters:
(i) A constant exchange rate for Malaysia was used in all periods.
(ii) Corporate Headquarters or Sector charges pertaining to
Management Information Systems and other similar charges for systems used
throughout the business were not reflected in the historical financial data.
(iii) Normal year-end adjustments to financial results, which were
immaterial when viewed in the aggregate, were not reflected in the historical
financial data.
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