EXHIBIT 2.1
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ASSET PURCHASE AGREEMENT
By and among:
M/A-Com Tech, Inc.,
a Nevada corporation,
Tyco Electronics Logistics AG,
a company organized under the laws of Switzerland
and
Endwave Corporation,
a Delaware corporation
______________________________
Dated as of April 24, 2001
______________________________
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Table Of Contents
Page
Closing; Sale of Assets; Assumed Liabilities; Excluded Assets; and Related
Transactions......................................................................... 1
1.1 Closing........................................................................ 1
1.2 Sale and Transfer of Acquired Assets........................................... 1
1.3 Purchase Price................................................................. 1
1.4 Assumed Liabilities............................................................ 2
1.5 Actions to Occur at Closing.................................................... 2
1.6 Excluded Assets................................................................ 3
1.7 Seller Responsibility for non-hired Employees.................................. 3
1.8 Sales Taxes.................................................................... 4
1.9 Allocation..................................................................... 4
2. Representations and Warranties of the Seller......................................... 4
2.1 Incorporation; Authorization; Etc.............................................. 4
2.2 Financial Statements........................................................... 5
2.3 Absence of Changes............................................................. 5
2.4 Title to Assets................................................................ 6
2.5 Intellectual Property Assets................................................... 6
2.6 Receivables.................................................................... 7
2.7 Inventory...................................................................... 7
2.8 Equipment, Etc................................................................. 7
2.9 Customers...................................................................... 7
2.10 Contracts...................................................................... 8
2.11 Liabilities.................................................................... 8
2.12 Compliance With Legal Requirements............................................. 8
2.13 Governmental Authorizations.................................................... 8
2.14 Tax Matters.................................................................... 9
2.15 Employment And Labor Matters................................................... 9
2.16 Benefit Plans; ERISA........................................................... 10
2.17 Sale of Products; Performance of Services...................................... 10
2.18 Insurance...................................................................... 11
i.
Table Of Contents
(continued)
Page
2.19 Related Party Transactions................................................................... 11
2.20 Proceedings; Orders.......................................................................... 11
2.21 Authority; Binding Nature of Agreements...................................................... 11
2.22 Non-Contravention; Consents.................................................................. 11
2.23 Brokers...................................................................................... 12
2.24 Investment Representations................................................................... 12
3. Representations and Warranties of the Purchaser................................................... 13
3.1 Organization and Standing.................................................................... 13
3.2 Authority; Binding Nature of Agreements...................................................... 13
3.3 Brokers...................................................................................... 13
3.4 Reports of Purchaser filed with SEC.......................................................... 13
3.5 Purchaser Common Stock....................................................................... 13
3.6 Compliance................................................................................... 14
3.7 Litigation................................................................................... 14
3.8 Approvals, Etc............................................................................... 14
4. Indemnification, Etc.............................................................................. 14
4.1 Survival of Representations and Covenants.................................................... 14
4.2 Indemnification by the Seller................................................................ 15
4.3 Indemnification by the Purchaser............................................................. 16
4.4 Exclusivity of Indemnification Remedies...................................................... 17
4.5 Defense of Third Party Claims................................................................ 17
5. Certain Covenants of the Seller, the IP Seller and the Purchaser.................................. 17
5.1 Further Actions.............................................................................. 17
5.2 Restriction on Competition................................................................... 18
5.3 Publicity.................................................................................... 19
6. Miscellaneous Provisions.......................................................................... 19
6.1 Governing Law; Venue; Consent to Jurisdiction................................................ 19
6.2 Entire Agreement............................................................................. 19
6.3 Expenses..................................................................................... 19
6.4 Further Assurances........................................................................... 19
ii.
Table Of Contents
(continued)
Page
6.5 Notices..................................................................................... 19
6.6 Headings.................................................................................... 20
6.7 Counterparts................................................................................ 20
6.8 Successors and Assigns; Parties In Interest................................................. 20
6.9 Remedies Cumulative; Specific Performance................................................... 21
6.10 Waiver...................................................................................... 21
6.11 Amendments.................................................................................. 22
6.12 Severability................................................................................ 22
6.13 Entire Agreement............................................................................ 22
6.14 Construction................................................................................ 22
6.15 No Third Party Rights....................................................................... 22
6.16 Waiver of Jury Trial........................................................................ 22
Exhibits
Exhibit A - Definitions
Exhibit B - Form of ▇▇▇▇ of Sale and Assignment and Assumption Agreement
Exhibit C - Form of Registration Rights Agreement
iii.
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is entered into as of
April 24, 2001, by and among M/A-Com Tech, Inc., a Nevada corporation (the
"Seller"), Tyco Electronics Logistics, AG, a company organized under the laws of
Switzerland (the "IP Seller") and Endwave Corporation, a Delaware corporation
(the "Purchaser"). Certain capitalized terms used in this Agreement are defined
in Exhibit A.
Recitals
A. The Seller owns all of the assets (other than the Intellectual
Property Assets owned by the IP Seller) used exclusively in its broadband
wireless access business (the "Business") and the IP Seller owns all of the
Intellectual Property Assets used exclusively in the Business.
B. The Seller and the IP Seller collectively wish to sell to the
Purchaser, and the Purchaser wishes to acquire from the Seller and the IP
Seller, certain assets of the Business (but specifically excluding the outdoor
unit component of the Business as the same relates to products sold to Ensemble
Communications Inc.) on the terms and subject to the conditions set forth in
this Agreement.
Agreement
The parties to this Agreement, intending to be legally bound, agree as
follows:
1. Closing; Sale of Assets; Assumed Liabilities; Excluded Assets; and Related
Transactions.
1.1 Closing. The closing of the sale of the Acquired Assets to the
Purchaser and all related transactions described herein (the "Closing") shall
take place at the San Francisco office of ▇▇▇▇▇▇ Godward LLP immediately
following the execution of this Agreement and the other Transactional
Agreements. For purposes of this Agreement, "Closing Date" shall mean the date
first set forth above.
1.2 Sale and Transfer of Acquired Assets. On the Closing Date, the Seller
shall cause to be sold, assigned, transferred, conveyed and delivered to the
Purchaser good and valid title to the Acquired Assets (other than the
Intellectual Property Assets), free and clear of any and all Encumbrances, and
the IP Seller shall cause to be sold, assigned, transferred, conveyed and
delivered to the Purchaser good and valid title to the Intellectual Property
Assets, free and clear of any and all Encumbrances, each on the terms and
subject to the conditions set forth in this Agreement.
1.3 Purchase Price. On the Closing Date, as consideration for the sale
and transfer of the Acquired Assets to the Purchaser:
1.
(a) the Purchaser shall pay to the IP Seller, in cash, a total of
$1,600,000 as consideration for the Intellectual Property Assets; and
(b) as consideration for the Acquired Assets other than the
Intellectual Property Assets, the Purchaser shall (i) pay to the Seller, in
cash, a total of $2,400,000 and (ii) instruct its transfer agent to issue a
stock certificate in the name of Seller representing 916,423 shares of the
common stock of the Purchaser. The number of shares to be issued pursuant to
this Section 1.3(b) shall be determined by dividing $2,000,000 by the Average
Share Price.
1.4 Assumed Liabilities. Except as otherwise provided for herein,
Purchaser, in addition to the consideration to be paid pursuant to Section 1.3
hereof, shall assume at the Closing and shall subsequently pay, honor and
discharge when due and payable in accordance with and subject to the terms and
conditions of the relevant governing agreements, commitments and instruments,
the following liabilities (collectively, the "Assumed Liabilities"):
(a) all liabilities and obligations of the Business as of the Closing
Date set forth in Part 1.4(a) of the Disclosure Schedule pertaining to sales
orders, unfilled purchase orders, equipment leases, accounts payable and
Acquired Contracts; and
(b) all liabilities and obligations arising out of or resulting from
the conduct of the Business subsequent to the Closing Date.
1.5 Actions to Occur at Closing. At the Closing, and on the terms and
subject to the conditions of this Agreement, the parties shall cause each of the
following to occur:
(a) Payment of Cash Component of Purchase Price. The Purchaser shall
pay to the Seller the cash portion of the purchase price as set forth in Section
1.3(a).
(b) Payment of Stock Component of Purchase Price. The Purchaser shall
arrange for the Seller to receive a stock certificate or certificates
representing that number of shares of Purchaser's common stock set forth in
Section 1.3(b).
(c) ▇▇▇▇ of Sale and Assignment and Assumption Agreement. Each of the
Seller and the IP Seller and the Purchaser shall execute and deliver the ▇▇▇▇ of
Sale and Assignment and Assumption Agreement in the form attached hereto as
Exhibit B.
(d) Employment Offers. Each of the employees listed in Part 1.5(d) of
the Disclosure Schedule shall have received an offer of employment from the
Purchaser; provided that the failure of any such employee to accept such offer
shall not affect the obligations of the parties hereunder.
(e) Integration Technologies License Agreement. The IP Seller and the
Purchaser shall enter into a Integration Technologies License Agreement in such
form as to which they shall have mutually agreed and shall execute at the
Closing.
2.
(f) YIG Technology License Agreement. The Seller and the Purchaser
shall enter into the YIG Technology License Agreement in such form as to which
they shall have mutually agreed and shall execute at the Closing.
(g) Manufacturing Services and Product Supply Agreement. The Seller
and the Purchaser shall enter into a Manufacturing Services and Product Supply
Agreement in such form as to which they shall have mutually agreed and shall
execute at the Closing.
(h) Registration Rights Agreement. The Seller and the Purchaser will
enter into the Registration Rights Agreement in the form attached hereto as
Exhibit C.
(i) Financial Statements. The Seller shall deliver to Purchaser the
Financial Statements, to the extent not previously delivered (as defined in
Section 2.2 hereof).
(j) Third Party Consents. The Seller shall have obtained any and all
third-party consents required or desirable for the transfer, assumption and
assignment to the Purchaser of the Acquired Assets.
(k) Execution of Ancillary Agreements. Each of the Seller and the IP
arrange for the Seller to receive a stock certificate or certificates Seller
shall execute and deliver to the Purchaser such additional bills of sale,
endorsements, assignments and other documents as may (in the reasonable judgment
of the Purchaser or its counsel) be necessary or appropriate to assign, transfer
and deliver to the Purchaser good and valid title to all of the Acquired Assets
free and clear of any and all Encumbrances, or otherwise facilitate the
performance and consummation of the Transactions.
1.6 Excluded Assets. On the Closing Date, the Purchaser shall acquire from
the Seller and the IP Seller solely the Acquired Assets and Intellectual
Property Assets, which shall exclude (without limitation) the following assets
relating to the Business:
(a) all casualty, liability and individual life insurance policies
owned or obtained by the Seller on behalf of the Business;
(b) the corporate minute books and stock registers of the Seller;
(c) the income tax records covering transactions of the Seller
occurring prior to the Closing Date;
(d) all intellectual property and know-how relating to all
integration and metal injection molding technologies of the IP Seller.
1.7 Seller Responsibility for non-hired Employees. As to each employee of
the Seller who is not offered employment by the Purchaser on or prior to the
Closing Date, such employees shall, notwithstanding any presumption to the
contrary provided within the WARN Act Section 2(b)(1), be deemed at all times to
be employees of the Seller for purposes of the WARN Act. Seller shall comply
with all WARN Act notice requirements relating to any
3.
employment loss (as defined in the WARN Act) suffered by any individual employed
as of the Closing Date by Seller.
1.8 Sales Taxes. The Purchaser shall bear and pay, or reimburse the
Seller or IP Seller, as applicable for, any sales taxes, use taxes, transfer
taxes, documentary charges, recording fees or similar taxes ("Sales Taxes") that
may become payable in connection with the sale of the Acquired Assets and the
Intellectual Property Assets to the Purchaser by the Seller and the IP Seller,
except to the extent applicable law, rule or regulation prohibit such payment of
or reimbursement for such Sales Taxes.
1.9 Allocation. On or promptly following the Closing Date, and in any
event within thirty (30) days of the Closing Date, the Purchaser shall deliver
to the Seller and the IP Seller a statement setting forth the Purchaser's good
faith determination of the manner in which the consideration referred to in
Sections 1.3(a) and 1.3(b) is to be allocated among the Acquired Assets other
than the Intellectual Property Assets. Provided that the parties agree upon such
allocation of the amount paid pursuant to Section 1.3(b), then the allocation
prescribed by such statement shall be conclusive and binding upon the parties
for all purposes, and neither party shall file any Tax Return or other document
with, or make any statement or declaration to, any Governmental Body that is
inconsistent with such allocation.
2. Representations and Warranties of the Seller.
Each of the Seller and the IP Seller hereby severally represent and
warrant, to and for the benefit of the Purchaser as follows:
2.1 Incorporation; Authorization; Etc.
(a) The Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nevada; and the IP Seller is a
company duly organized, validly existing and in good standing under the laws of
Switzerland; each of the Seller and the IP Seller is duly qualified to transact
business in each jurisdiction in which the nature of property owned or leased on
behalf of them or the respective conduct of the Seller or the IP Seller requires
it to be so qualified, except where the failure to be in good standing or to be
duly qualified to transact business, would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on the
Seller or the IP Seller.
(b) Each of the Seller and the IP Seller has all requisite corporate
power and authority to own or use the properties and assets employed by them in
the Business, to carry on the Business and to own the Intellectual Property
Assets as it is now being conducted and as the same is now owned, to execute and
deliver this Agreement and the other agreements and documents required to be
delivered by the Seller or the IP Seller, as applicable, in accordance with the
provisions hereof (the "Seller and IP Seller Deliverables"), to perform their
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the Seller and IP Seller
Deliverables, as applicable, and the performance of the Seller's and the IP
Seller's obligations hereunder and thereunder and the consummation of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all
4.
necessary corporate proceedings on the part of the Seller and the IP Seller and
no other corporate proceedings on the part of the Seller or the IP Seller, their
respective Board of Directors (or the equivalent thereof) or stockholders are
necessary therefor. This Agreement and the Seller and IP Seller Deliverables
have been duly executed and delivered by each of the Seller and the IP Seller,
and, assuming the due execution hereof by the Purchaser, this Agreement
constitutes and the Seller and IP Seller Deliverables constitute legal, valid
and binding obligations of the Seller and IP Seller, enforceable against the
Seller and IP Seller in accordance with its and their terms, except as
enforcement may be limited by equitable principles limiting the right to obtain
specific performance or other equitable remedies, or by applicable bankruptcy or
insolvency laws and related decisions affecting creditors' rights generally.
(c) The execution, delivery and performance of this Agreement and the
Seller and IP Seller Deliverables and the consummation of the transactions
contemplated hereby does not (i) violate any provision of the Seller's or IP
Seller's certificate of incorporation or bylaws (or the equivalent thereof),
(ii) violate any provision of, and is not an event that is (or with the passage
of time will result in) a violation of, or result in the acceleration of or
entitle any Person to accelerate (whether after the giving of notice or lapse of
time or both) any obligation under, or result in the imposition of any Lien upon
any of the Acquired Assets pursuant to any Contract or Order to which the Seller
or the IP Seller is a party or by which it is bound, or (iii) violate or
conflict with any other material restriction of any kind or character to which
Seller or the IP Seller is subject, that, in the case of clauses (ii) and (iii),
could, individually or in the aggregate, result in a Material Adverse Effect on
the Seller or the IP Seller.
(d) At the Closing, the Seller will deliver to Purchaser good, valid
and marketable title to the Acquired Assets free and clear of all Encumbrances;
and the IP Seller will deliver to Purchaser good, valid and marketable title to
the Intellectual Property Assets free and clear of all Encumbrances.
2.2 Financial Statements. The Seller has delivered to Purchaser the
following financial statements (collectively, the "Financial Statements"): the
balance sheet for the Business as of March 24, 2001, together with detailed
accounts receivable, accounts payable, fixed assets, leased equipment and
inventory line items statements therefor as of March 24, 2001. The Financial
Statements are accurate and complete in all material respects and present fairly
the data of the Business reported thereon as of the date thereof. Such Financial
Statements have been prepared in accordance with generally accepted United
States accounting principles applied on a consistent basis throughout the
periods covered.
2.3 Absence of Changes. Since March 24, 2001:
(a) Except as set forth in Part 2.3(a) of the Disclosure Schedule,
there has not been any material adverse change in the business, condition,
assets, liabilities, operations, financial performance, net income or prospects
of the Seller or the IP Seller as the same may relate to the Acquired Assets and
no event has occurred to the Seller's Knowledge that might result in a Material
Adverse Effect on the Seller or the IP Seller;
5.
(b) there has not been any loss, damage or destruction to, or any
interruption in the use of, any Acquired Assets (whether or not covered by
insurance);
(c) with the exception of the sale of the Intellectual Property
Assets to the IP Seller, the Seller has not sold or otherwise transferred, and
has not leased or licensed, any of the Acquired Assets to any other Person
except for products sold in the Ordinary Course of Business;
(d) except as set forth in Part 2.3(d) of the Disclosure Schedule,
the Seller has not written off as uncollectible, or established any
extraordinary reserve with respect to, any Acquired Assets, including any
account receivable;
(e) the Seller has not pledged or hypothecated any of the Acquired
Assets or otherwise permitted any of the Acquired Assets or to become subject to
any Encumbrance;
(f) the Seller has not, on behalf of or with respect to Acquired
Assets, forgiven any debt or otherwise released or waived any material right or
claim;
(g) the Seller has not changed any of its methods of accounting or
accounting practices for the Business in any material respect;
(h) the Seller has not entered into any transaction or taken any
other action outside the Ordinary Course of Business on behalf of or with
respect to the Business;
(i) the Seller has not agreed, committed or offered (in writing or
otherwise), and has not attempted, to take any of the actions referred to in
clauses "(c)" through "(h)" above.
2.4 Title to Assets. The Seller owns, and has good valid and marketable
title to, all of the Acquired Assets (other than the Intellectual Property
Assets) and the IP Seller owns, and has good, valid and marketable title to, all
of the Intellectual Property Assets; and all of the Acquired Assets (other than
the Intellectual Property Assets) are owned by the Seller free and clear of any
Encumbrances and all of the Intellectual Property Assets are owned by the IP
Seller free and clear of any Encumbrances. Part 2.4 of the Disclosure Schedule
identifies any Acquired Assets that are being leased or licensed to the Seller
or the IP Seller. The Acquired Assets, when taken together with all actions to
be performed by the Seller and the IP Seller on or following the Closing Date
under the Transactional Agreements and all rights to be acquired by the
Purchaser under the Transactional Agreements, will collectively constitute, as
of the Closing Date, all of the properties, rights, interests and other tangible
and intangible assets necessary or appropriate to conduct the Business as the
Business has been conducted by Seller and IP Seller prior to and on the Closing
Date, except for such residual know-how and other information in a non-tangible
form that may be retained by employees and former employees of the Business not
included in Part 1.5(d) of the Disclosure Schedule.
2.5 Intellectual Property Assets. Part 2.5 of the Disclosure Schedule
lists all Intellectual Property Assets of the IP Seller being acquired
hereunder. Except as set forth on Part 2.5 of the Disclosure Schedule, to the
Seller's Knowledge, as of the date hereof, no claims
6.
of infringement of the intellectual property rights of any third parties exist
based upon the use by Seller or the IP Seller of the Intellectual Property
Assets included in the Acquired Assets that would, individually or in the
aggregate, have a Material Adverse Effect on the Seller or the IP Seller, and,
to the IP Seller's Knowledge, no other Person is infringing upon or making
unlawful use of any Intellectual Property Assets.
2.6 Receivables.
(a) Part 2.6(a) of the Disclosure Schedule provides an accurate and
complete breakdown and aging of all accounts receivable, notes receivable and
other receivables as of March 24, 2001 included in the Acquired Assets.
(b) Except as set forth in Part 2.6(b) of the Disclosure Schedule, to
the Seller's Knowledge, all existing accounts receivable relating to the
Business and included in the Acquired Assets (including those accounts
receivable and reflected on any interim balance sheets of the Seller that have
not yet been collected and those accounts receivable that have arisen since
February 3, 2001 and have not yet been collected): (i) represent valid
obligations of customers of the Business arising from bona fide transactions
entered into in the Ordinary Course of Business, and (ii) to Seller's Knowledge,
are current and collectible in full.
2.7 Inventory.
(a) Part 2.7(a) of the Disclosure Schedule provides an accurate and
complete breakdown as of March 24, 2001 of all inventory included in the
Acquired Assets.
(b) All of the inventory included in the Acquired Assets is (i) of
such quality and quantity as to be usable and saleable in the Ordinary Course of
Business, subject to normal and customary allowances in the industry for damaged
and outdated items, provided however, that the Seller and the IP Seller make no
representation or warranty as to whether such inventory will actually be used or
sold, and (ii) is free of any defect or deficiency.
2.8 Equipment, Etc. Part 2.8 of the Disclosure Schedule accurately
identifies all categories of equipment, materials, prototypes, tools, supplies,
and other tangible assets included in the Acquired Assets, and individually each
material item included therein. Part 2.8 of the Disclosure Schedule also
accurately identifies all tangible assets included in the Acquired Assets that
are leased to the Seller, if any. To the Seller's Knowledge, each asset
identified in Part 2.8 of the Disclosure Schedule is in a state of good
condition and repair in all material respects, and is in need of no material
maintenance or repairs, except for maintenance in the Ordinary Course of
Business.
2.9 Customers. Part 2.9 of the Disclosure Schedule accurately identifies
the revenues attributable to each of the five largest customers of the Business
for the year ended December 31, 2000. Except as set forth in Part 2.9 of the
Disclosure Schedule, since February 2, 2001, the Seller has not received any
notice or otherwise received any other information (a "Customer Notice")
indicating that any customer agreement or contract identified or required to be
identified in Part 2.9 of the Disclosure Schedule may cease to be enforceable
and binding, or
7.
that such party thereto may cease dealing with the Seller or may otherwise
reduce the volume of business transacted by such Person pursuant to such
customer agreement or contract below historical levels; and to the Seller's
Knowledge, except as set forth in Part 2.9 of the Disclosure Schedule, no such
Customer Notice has been received prior to February 2, 2001.
2.10 Contracts.
(a) Part 2.10(a) of the Disclosure Schedule identifies each Contract
included in the Acquired Assets ("Acquired Contracts"). The Seller has made
available to the Purchaser accurate and complete copies of all Acquired
Contracts, including all amendments thereto. Each Acquired Contract is valid and
in full force and effect.
(b) Except as set forth in Part 2.10(b) of the Disclosure Schedule:
(i) the Seller has not violated or Breached any material term of any Acquired
Contract, and to Seller's Knowledge no other Person has violated or Breached, or
declared or committed any default under, any Acquired Contract; (ii) no event
has occurred, and no circumstance or condition exists, that might (with or
without notice or lapse of time) (A) result in a material violation or material
Breach by the Seller of any of the provisions of any Acquired Contract, (B) to
Seller's Knowledge, result in a violation or Breach by any other party of any of
the provisions of any Acquired Contract, (C) to the Seller's Knowledge give any
Person the right to declare a default or exercise any remedy under any Acquired
Contract, (D) give any Person the right to accelerate the maturity or
performance of any Acquired Contract, or (E) give any Person the right to
cancel, terminate or modify any Acquired Contract; (iii) the Seller has not
received any notice or other communication (in writing or otherwise) regarding
any actual, alleged, possible or potential material violation or material Breach
of, or default under, any Acquired Contract; and (iv) the Seller has not waived
any right under any Acquired Contract, that would, individually or in the
aggregate, result in a Material Adverse Effect on the Seller or the IP Seller.
2.11 Liabilities. Except as set forth in Part 2.11 of the Disclosure
Schedule, there are no accrued, contingent or other Liabilities of any nature,
either matured or unmatured (whether or not required to be reflected in
financial statements in accordance with generally accepted accounting
principles) relating to the Acquired Assets except for: (a) Liabilities incurred
by the Seller in connection with the Acquired Assets in the Ordinary Course of
Business not yet due and payable and (b) Liabilities of the Seller under the
Acquired Contracts not yet due and payable.
2.12 Compliance With Legal Requirements. The Seller and the IP Seller are,
and at all times have been, in material compliance with each Legal Requirement
that is applicable to the conduct of the Business or the ownership or use of any
of the Acquired Assets; to the Seller's Knowledge, no event has occurred, and no
condition or circumstance exists, that might (with or without notice or lapse of
time) constitute or result directly or indirectly in a violation by the Seller
or the IP Seller of, or a failure on the part of the Seller or the IP Seller to
comply with, any Legal Requirement relating to the Acquired Assets or the
Business; and neither the Seller nor the IP Seller has received, at any time,
any notice from any Governmental Body or any other Person
8.
regarding any actual, alleged, possible or potential violation of, or failure to
comply with, any Legal Requirement relating to the Business or the Acquired
Assets.
2.13 Governmental Authorizations. Part 2.13 of the Disclosure Schedule
identifies each Governmental Authorization included in the Acquired Assets. The
Seller and the IP Seller, as applicable, have made available to the Purchaser
accurate and complete copies of all Governmental Authorizations identified in
Part 2.13 of the Disclosure Schedule, including all renewals thereof and all
amendments thereto. Each Governmental Authorization identified or required to be
identified in Part 2.13 of the Disclosure Schedule is valid and in full force
and effect.
2.14 Tax Matters.
(a) The Seller has filed all Income Tax Returns that it was required
to file with respect to the Business and all such Income Tax Returns were
correct and complete in all material respects. All Income Taxes owed by the
Seller (whether or not shown on any Income Tax Return) have been paid.
(b) There is no material dispute or claim concerning any Income Tax
liability of the Seller with respect to the Business either (i) claimed or
raised by any authority in writing or (ii) as to which the Seller otherwise has
Knowledge. There are no Encumbrances on any of the Acquired Assets that arose in
connection with any failure (or alleged failure) by the Seller or the IP Seller
to pay any Tax.
2.15 Employment And Labor Matters.
(a) Part 2.15(a) of the Disclosure Schedule accurately sets forth,
with respect to each person set forth in Part 1.5(d) of the Disclosure Schedule:
(i) the full name and title of such employee and (ii) the base salary payable to
each such employee by the Seller on an annualized basis as of the date hereof.
(b) Except as set forth in Part 2.15(b) of the Disclosure Schedule,
to the Seller's Knowledge, no former employee of the Business has any claim to
receipt of any benefits from the Seller on behalf of or with respect to assets
included in the Acquired Assets.
(c) Except as set forth in part 2.15(c) of the Disclosure Schedule,
as of and prior to the Closing Date, each individual listed in Part 2.15(a) of
the Disclosure Schedule was employed by the Seller on an at will basis and no
such employee is entitled to severance pay following termination or resignation.
The Seller has made available to the Purchaser accurate and complete copies of
all employee manuals and handbooks, disclosure materials, policy statements,
materials relating to the treatment of confidential information by employees.
(d) To the Seller's Knowledge, no obligations exist as to any current
or former employee of the Business under the provisions of the WARN Act.
9.
(e) Except as otherwise provided in Part 2.15(e) of the Disclosure
Schedule, to the Seller's Knowledge, no employee included in Part 2.15(a) of the
Disclosure Schedule is a party to or is bound by any confidentiality agreement,
noncompetition agreement or other Contract (with any Person) that may have an
adverse effect on (A) the performance by such employee of any of their duties or
responsibilities as an employee of Purchaser, or (B) the business of the
Purchaser.
2.16 Benefit Plans; ERISA.
(a) No Employee Benefit Plan maintained by the Seller: (i) provides
or provided any benefit guaranteed by the Pension Benefit Guaranty Corporation;
(ii) is or was a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA;
or (iii) is or was subject to the minimum funding standards of Section 412 of
the Code or Section 302 of ERISA. There is no Person that (by reason of common
control or otherwise) is or has at any time been treated together with the
Seller as a single employer within the meaning of Section 414 of the Code.
(b) No inaccurate or misleading representation, statement or other
communication has been made or directed (in writing or otherwise) to any
individual employed by the Seller in connection with the Business and listed in
Part 1.5(d) of the Disclosure Schedule (i) with respect to such employee's
participation, eligibility for benefits, vesting, benefit accrual or coverage
under any Employee Benefit Plan or with respect to any other matter relating to
any Plan, or (ii) with respect to any proposal or intention on the part of the
Seller to establish or sponsor any Employee Benefit Plan or to provide or make
available any fringe benefit or other benefit of any nature.
2.17 Sale of Products; Performance of Services.
(a) Except as set forth in Part 2.17(a) of the Disclosure Schedule,
each product, system or program designed, developed, manufactured or assembled
by the Seller to any Person in connection with assets included within the
Acquired Assets:
(i) conformed and complied in all material respects with the
terms and requirements of any applicable warranty or other Contract and
with all applicable Legal Requirements; and
(ii) was free of any design defect or other defect or deficiency
at the time it was sold or otherwise made available, other than any
immaterial deficiency or defect that would not adversely affect in any
material respect such product, system or program (or the operation or
performance thereof).
(c) All services that have been performed by the Seller or the IP
Seller in connection with assets included in the Acquired Assets were in all
material respects performed properly and in full conformity with the terms and
requirements of all applicable warranties and other Contracts and with all
applicable Legal Requirements.
10.
(d) Except as set forth in Part 2.17(c) of the Disclosure Schedule
there are no claims against the Seller or the IP Seller under or based upon any
warranty provided by or on behalf of the Seller or the IP Seller in connection
with their conduct of the Business that individually assert a claim for payment
exceeding $50,000, and to Seller's Knowledge, there is no reasonable basis for
the assertion of any such claim.
2.18 Insurance. Since February 3, 2001, the Seller has at all material
times been fully insured (or self-insured) against any and all risks and
liabilities with respect to the Business and the Acquired Assets. Part 2.18 of
the Disclosure Schedule provides a description of any insurance claims pending
with respect to the Business or the Acquired Assets.
2.19 Related Party Transactions. Except as set forth in Part 2.19 of the
Disclosure Schedule, no Related Party has any direct or indirect interest of any
nature in the Acquired Assets.
2.20 Proceedings; Orders. Except as set forth in Part 2.20 of the
Disclosure Schedule, there is no pending Proceeding, and, to the Seller's
Knowledge, no Person has threatened to commence any Proceeding: (i) that
involves the Seller or the IP Seller or that otherwise relates to or might
affect the Business or any of the Acquired Assets (whether or not the Seller or
the IP Seller is named as a party thereto), except as would not have a Material
Adverse Effect on the Seller or the IP Seller; or (ii) that challenges, or that
may have the effect of preventing, delaying, making illegal or otherwise
interfering with, any of the Transactions. There is no Order to which the
Business or any of the Acquired Assets is subject.
2.21 Authority; Binding Nature of Agreements. The Seller and the IP Seller,
collectively as the sole owners of the Acquired Assets being sold hereunder,
have the absolute and unrestricted right, power and authority to enter into and
to perform their obligations under each of the Transactional Agreements to which
they are or shall become a party. Each Transactional Agreement constitutes or
will when executed and delivered constitute the legal, valid and binding
obligation of the Seller and the IP Seller, enforceable against the Seller and
the IP Seller in accordance with its terms, except as enforcement may be limited
by equitable principles limiting the right to obtain specific performance or
other equitable remedies, or by applicable bankruptcy or insolvency laws and
related decisions affecting creditors' rights generally.
2.22 Non-Contravention; Consents. Except as set forth in Part 2.22 of the
Disclosure Schedule, neither the execution and delivery by the Seller or the IP
Seller of any of the Transactional Agreements, nor the consummation or
performance by the Seller of any of the Transactions, will directly or
indirectly (with or without notice or lapse of time):
(a) contravene, conflict with or result in a violation of, or give
any Governmental Body or other Person the right to challenge any of the
Transactions or to exercise any remedy or obtain any relief under, any Legal
Requirement or any Order to which the Seller or the IP Seller, or any of the
Acquired Assets is subject;
11.
(b) contravene, conflict with or result in a violation of any of the
terms or requirements of, or give any Governmental Body the right to revoke,
withdraw, suspend, cancel, terminate or modify, any Governmental Authorization
included in the Acquired Assets;
(c) contravene, conflict with or result in a violation or Breach of,
or result in a default under, any provision of any Acquired Contract;
(d) give any Person the right to (i) declare a default or exercise
any remedy under any Acquired Contract, (ii) accelerate the maturity or
performance of any Acquired Contract, or (iii) cancel, terminate or modify any
Acquired Contract; or
(e) result in the imposition or creation of any Encumbrance upon or
with respect to any of the Acquired Assets.
Except as set forth in Part 2.22 of the Disclosure Schedule, the Seller and the
IP Seller shall not and will not be required to make any filing with or give any
notice to, or to obtain any Consent from, any Person in connection with the
execution and delivery of any of the Transactional Agreements or the
consummation or performance of any of the Transactions.
2.23 Brokers. Neither the Seller nor the IP Seller has agreed or become
obligated to pay, nor has it taken any action that might result in any Person
claiming to be entitled to receive, any brokerage commission, finder's fee or
similar commission or fee in connection with any of the Transactions.
2.24 Investment Representations. The Seller understands that the shares of
Purchaser common stock to be issued to the Seller on the Closing Date have not
been registered under the Securities Act. The Seller also understands that the
shares are being offered and sold pursuant to an exemption from registration
contained in the Securities Act based in part upon the Seller's representations
contained in this Agreement. The Seller hereby represents and warrants as
follows:
(a) The Seller Bears Economic Risk. The Seller has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Purchaser so that it is capable of
evaluating the merits and risks of its investment in the Purchaser and has the
capacity to protect its own interests. The Seller must bear the economic risk of
this investment indefinitely unless the shares are registered pursuant to the
Securities Act or an exemption from registration is available. The Seller
understands that the Purchaser has no present intention of registering the
shares. The Seller also understands that there is no assurance that any
exemption from registration under the Securities Act will be available and that,
even if available, such exemption may not allow the Seller to transfer all or
any portion of the shares under the circumstances, in the amounts or at the
times the Seller might propose.
(b) Acquisition for Own Account. The Seller is acquiring the shares
for the Seller's own account for investment only, and not with a view towards
their distribution.
12.
(c) Accredited Investor. The Seller is an accredited investor within
the meaning of Regulation D under the Securities Act.
(d) Residence. The office or offices of the Seller in which its
investment decision was made is located in the State of Massachusetts.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants, to and for the benefit of
the Seller and the IP Seller, as follows:
3.1 Organization and Standing. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of Delaware and
has all corporate power and authority to carry on the business in which it is
engaged and to own and use the properties owned and used by it.
3.2 Authority; Binding Nature of Agreements. The Purchaser has the
absolute and unrestricted right, power and authority to enter into and perform
its obligations under each of the Transactional Agreements to which it is a
party, and the execution and delivery thereof by the Purchaser has been duly
authorized by all necessary action on the part of the Purchaser and its board of
directors. Each Transactional Agreement constitutes a legal, valid and binding
obligation of the Purchaser, enforceable against it in accordance with its
terms, except as enforcement may be limited by equitable principles limiting the
right to obtain specific performance or other equitable remedies, or by
applicable bankruptcy or insolvency laws and related decisions affecting
creditors' rights generally.
3.3 Brokers. Other than fees payable to CIBC World Markets, Purchaser has
not agreed or become obligated to pay, nor has it taken any action that might
result in any Person claiming to be entitled to receive, any brokerage
commission, finder's fee or similar commission or fee in connection with any of
the Transactions.
3.4 Reports of Purchaser filed with SEC. Seller has been provided access
to each of the Purchaser's (a) Registration Statement on Form ▇-▇, ▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) Final Prospectus, dated October 17, 2000, as
filed pursuant to Rule 424(b) of the Securities Act used for offers and sales,
(c) Annual Report on Form 10-K for the fiscal year ended December 31, 2000, and
(d) all Current Reports on Form 8-K filed by the Purchaser to the date hereof
(collectively, the "Purchaser SEC Documents"). As of the respective dates
thereof, the Purchaser SEC Documents were prepared in all material respects in
accordance with the Securities Act and the Exchange Act, as the case may be, and
did not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Purchaser has timely filed all forms, reports and documents with the
SEC required to be filed by it pursuant to the Securities Act and the Exchange
Act, each of which complied as to form, at the time such form, document or
report was filed, in all material respects with the applicable requirements of
the Securities Act and the Exchange Act.
13.
3.5 Purchaser Common Stock. The shares of capital stock of the Purchaser
that are to be issued to the Seller on the Closing Date will be (i) duly
authorized and validly issued, (ii) fully paid and non-assessable, and (iii)
subject to the accuracy and completeness of the representations and warranties
of the Seller herein, the offer, sale and issuance of such shares constitutes a
transaction exempt from the registration requirements of Section 5 of the
Securities Act of 1933 and is in compliance with applicable state securities
laws.
3.6 Compliance. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, will not:
(a) result in the breach of any of the terms or conditions of, or
constitute a default under or violate, as the case may be, the certificate of
incorporation or by-laws of the Purchaser, or any material agreement, lease,
mortgage, note, bond, indenture or license to which Purchaser is bound, or by
which any of its properties or assets may be affected; or
(b) to the Purchaser's Knowledge, violate any rule, regulation, writ,
injunction, order or decree of any court, administrative agency or Governmental
Body.
3.7 Litigation. There are no actions, suits, proceedings or investigations
pending, or to the Purchaser's Knowledge, threatened, that question the validity
of this Agreement or any of the other Transactional Agreements or the
consummation of the transactions contemplated thereby.
3.8 Approvals, Etc. All consents, approvals, authorizations and orders
(corporate, governmental or otherwise) necessary for the due authorization,
execution and delivery by Purchaser of this Agreement and the consummation of
the transactions contemplated hereby have been obtained or will be obtained
prior to the Closing Date (subject to any necessary filings required by
applicable securities laws that may properly be obtained following the Closing
Date).
4. INDEMNIFICATION, ETC.
4.1 Survival of Representations and Covenants.
(a) The representations, warranties, covenants and obligations of the
Seller and the IP Seller and the rights and remedies that may be exercised by
the Purchaser, shall not be limited or otherwise affected by or as a result of
any information furnished to, or any investigation made by or any Knowledge of,
the Purchaser or any of its Representatives.
(b) The representations and warranties of the parties set forth in
this Agreement (other than those set forth in Section 2.4, which shall remain in
full force and effect and shall survive for an unlimited period of time, and
those set forth in Section 2.14, which shall remain in full force and effect and
shall survive until the expiration of all applicable statutes of limitation)
shall expire twelve (12) months from the Closing Date; provided, however, that
if a notice relating to the Breach of any representation or warranty of a party
set forth in any of said Sections is given to such party on or prior to the date
that is twelve (12) months from the Closing Date, then, notwithstanding anything
to the contrary contained in this Section 4.1(b), such
14.
representation or warranty to which such Breach was alleged in such notice shall
not so expire, but rather shall remain in full force and effect until such time
as each claim that is based upon such Breach or alleged Breach of such
representation or warranty set forth in such notice has been fully and finally
resolved, either by means of a written settlement agreement executed by the
Seller and the Purchaser or the IP Seller and the Purchaser, as applicable, or
by means of a final, non-appealable judgment issued by a court of competent
jurisdiction.
(c) For purposes of this Agreement, each statement or other item of
information set forth in the Disclosure Schedule shall be deemed to be a
representation and warranty made by the Seller or the IP Seller, as applicable,
in this Agreement.
(d) The covenants contained in Article 5 of this Agreement shall
survive the Closing and expire as set forth therein.
4.2 Indemnification by the Seller.
(a) Subject to Section 4.2(b), each of the Seller and the IP Seller
shall severally hold harmless, indemnify, and shall compensate and reimburse the
Purchaser for, any Damages that are suffered or incurred by the Purchaser or to
which the Purchaser may otherwise become subject at any time (regardless of
whether or not such Damages relate to any third-party claim) and that arise
from, are proximately caused by, or are connected with:
(i) any Breach of any of the representations or warranties made
by the Seller or the IP Seller in any of the Transactional Agreements;
(ii) any Breach of any representation, warranty, statement,
information or provision contained in the Disclosure Schedule;
(iii) any Breach of any covenant or obligation of the Seller or
the IP Seller contained in any of the Transactional Agreements;
(iv) any Liability of the Seller or the IP Seller or of any
Related Party existing on or arising prior to the Closing Date under any of the
Acquired Contracts;
(v) any Liability of the Seller relating to, arising out of, or
in connection with any Employee Benefit Plan of the Seller (except as otherwise
specifically provided in the other Transactional Agreements); or
(vi) any Liability under the WARN Act, including, without
limitation, all losses, penalties, back pay relating to any failure to give
adequate notice of a mass layoff or plant closing under the WARN Act (as defined
therein), if the employment loss (as defined in the WARN Act) contributing to
such mass layoff or plant closing (i) occurs immediately prior to, or on or
after the Closing Date and (ii) consists of employment loss for individuals not
listed in Part 1.5(d) of the Disclosure Schedule and not employed by Purchaser
on and after the Closing Date;
15.
(vii) the Purchaser's conduct of a defense against third-party
claims pursuant to a Proceeding directly relating to any Breach, alleged Breach,
Liability or matter of the type referred to in clause "(i)," "(ii)," "(iii),"
"(iv)" "(v)" or "(vi)" above, and any successful Proceeding commenced by the
Purchaser for the purpose of enforcing any of its rights under this Section 4.
(b) Subject to Section 4.2(c), the Seller and the IP Seller shall not
be required to make any indemnification payment pursuant to Sections 4.2(a)(i)
or (ii) until such time as the total amount of all Damages (including the
Damages arising from such Breach and all other Damages arising from any other
Breaches of any representations or warranties) that have been suffered or
incurred by the Purchaser, or to which the Purchaser has or have otherwise
become subject, exceeds $150,000 in the aggregate (the "Deductible Amount"). At
such time as the total amount of such Damages exceeds the Deductible Amount, the
Purchaser shall be entitled to be indemnified against and compensated and
reimbursed for all Damages in excess of the Deductible Amount (and excluding
such Deductible Amount); provided, however, that the Seller and the IP Seller
shall not be required to indemnify the Purchaser with respect to any such
Damages if the Seller has already paid an amount to the Purchaser equal to or
exceeding $3,000,000 pursuant to this Section 4.2.
(c) The limitations on the Seller's and the IP Seller's
indemnification obligations that are set forth in Section 4.2(b) shall not apply
to any Breach of the representations and warranties contained in Sections 2.4
and 2.14.
(d) Notwithstanding anything set forth in this Agreement to the
contrary, the Purchaser shall not make any claim against the Seller or the IP
Seller, as applicable, for any Damages with respect to any Breach by the Seller
or the IP Seller, as applicable, of the terms set forth in this Agreement, if
and to the extent the Purchaser had actual knowledge of such Breach at or prior
to the Closing Date and nonetheless consummated the transactions contemplated
hereunder.
4.3 Indemnification by the Purchaser.
(a) Subject to Section 4.3(b), the Purchaser shall hold harmless and
indemnify the Seller and the IP Seller from and against, and shall compensate
and reimburse the Seller and the IP Seller for, any Damages that are suffered or
incurred by the Seller or the IP Seller or to which the Seller or the IP Seller
may otherwise become subject at any time (regardless of whether or not such
Damages relate to any third-party claim) and that arise out of, are proximately
caused by, or are connected with:
(i) any Breach of any representation or warranty made by the
Purchaser in this Agreement;
(ii) the non-fulfillment of any covenant, undertaking, agreement
or other obligation of Purchaser under this Agreement, including but not limited
to, the discharge of the Assumed Liabilities;
16.
(iii) the manufacture, sale, shipment or other distribution of
the products of the Business by the Purchaser after the Closing Date;
(iv) the ownership, operations or control of the Business by the
Purchaser after the Closing Date; or
(v) the Seller's conduct of a defense against third-party
claims pursuant to a Proceeding directly relating to any Breach, alleged Breach,
Liability or matter of the type referred to in clause "(i)," "(ii)," "(iii)" or
"(iv)" above, and any successful Proceeding commenced by the Seller or the IP
Seller for the purpose of enforcing any of its rights under this Section 4.
(b) The Purchaser shall not be required to make any indemnification
payment pursuant to Section 4.3(a)(i) for any Breach of any of its
representations and warranties until such time as the total amount of all
Damages (including the Damages arising from such Breach and all other Damages
arising from any other Breaches of any representations or warranties) that have
been suffered or incurred by the Seller and the IP Seller, collectively, or to
which the Seller and the IP Seller has otherwise become subject, collectively
exceeds the Deductible Amount. At such time as the total amount of such Damages
in excess of the Deductible Amount (and excluding such Deductible Amount), the
Seller or the IP Seller, as applicable, shall be entitled to be indemnified
against and compensated and reimbursed for Damages, excluding the Deductible
Amount; provided, however, that the Purchaser shall not be required to indemnify
the Seller or the IP Seller with respect to any such Damages if the Purchaser
has already paid an amount to the Seller and the IP Seller, collectively, equal
to or exceeding $3,000,000 pursuant to this Section 4.3.
(c) Notwithstanding anything set forth in this Agreement to the
contrary, neither the Seller nor the IP Seller shall make any claim against the
Purchaser for any Damages with respect to any Breach by the Purchaser of the
terms set forth in this Agreement, if and to the extent the Seller, or the IP
Seller, as applicable, had actual knowledge of such Breach at or prior to the
Closing Date and nonetheless consummated the transactions contemplated
hereunder.
4.4 Exclusivity of Indemnification Remedies. Except as set forth in
Section 6.9 hereof, the indemnification remedies and other remedies provided in
this Section 4 shall be exclusive.
4.5 Defense of Third Party Claims. In the event of the assertion or
commencement by any Person of any claim or Proceeding (whether against the
Purchaser or the Seller or IP Seller, as the case may be, or against any other
Person) with respect to which the Seller or IP Seller or the Purchaser may
become obligated to indemnify, hold harmless, compensate or reimburse any Person
pursuant to this Section 4, then the following shall apply:
(a) all expenses relating to the defense of such claim or Proceeding
(whether or not incurred by the Purchaser, or the Seller or the IP Seller) shall
be borne and paid exclusively by the other party hereto;
17.
(b) each party shall make available to the other any documents and
materials in the possession or control of such party that may be necessary to
the defense of such claim or Proceeding;
(c) each of the Purchaser, and the Seller and the IP Seller, shall
keep the other party informed of all material developments and events relating
to such claim or Proceeding; and
(d) each of the Purchaser, and the Seller and the IP Seller, shall
have the right to settle, adjust or compromise such claim or Proceeding with the
consent of the other party hereto; provided, however, that the other party may
not unreasonably withhold such consent.
5. Certain Covenants of the Seller, the IP Seller and the Purchaser.
5.1 Further Actions. From and after the Closing Date, each of the Seller
and the IP Seller shall cooperate with the Purchaser and the Purchaser's
affiliates and Representatives, and shall execute and deliver such documents and
take such other actions as the Purchaser may reasonably request, for the purpose
of evidencing the Transactions and putting the Purchaser in possession and
control of the Acquired Assets, which shall include, without limitation, each of
the following actions which the Seller and the IP Seller shall undertake at the
expense solely thereof:
(a) following the Closing Date, each of the Seller and the IP Seller
shall execute and deliver to the Purchaser such additional bills of sale,
endorsements, assignments and other documents as may (in the reasonable judgment
of the Purchaser or its counsel) be necessary or appropriate to assign, transfer
and deliver to the Purchaser good and valid title to all of the Acquired Assets,
including the Intellectual Property Assets, free of any Encumbrances, or
otherwise give effect to the intent of the Transactions contemplated in this
Agreement;
(b) from and after the Closing Date, the Seller shall promptly remit
to the Purchaser any funds that are received by the Seller and that are included
in, or that represent payment of receivables intended to be included in, the
Acquired Assets;
(c) each of the Seller and the IP Seller agree to cooperate in good faith with
the Purchaser, and to provide such information as may reasonably be requested by
the Purchaser, to enable the Purchaser to evaluate and resolve any warranty
claims arising out of actions taken or products shipped by the Seller prior to
the Closing Date.
5.2 Restriction on Competition.
(a) The Seller agrees that, until the third anniversary of the date
of this Agreement, (the "Noncompetition Period") the Seller shall not: engage
directly or indirectly in Competition in any Restricted Territory, or directly
or indirectly become an affiliate, partner, agent, representative, licensor,
sublicensor, licensee or sublicensee of, for or to, or otherwise be or become
associated with or acquire or hold (of record, beneficially or otherwise) any
direct or indirect majority ownership interest in, any Person that engages
directly or indirectly in Competition in any Restricted Territory.
18.
(b) The Seller agrees that, during the Noncompetition Period, the
Seller shall not and shall not permit any of its affiliates to (1) solicit for
hire any employee of the Purchaser (other than general solicitations through the
media), or (2) directly or indirectly, personally or through others, encourage,
induce, attempt to induce, solicit or attempt to solicit (on the Seller's own
behalf or on behalf of any other Person) any employee of the Purchaser to leave
his or her employment with Purchaser or any affiliate of Purchaser.
(c) As used in this Section 5.2, a Person shall be deemed to be
engaged in "Competition" if such Person is engaged directly or indirectly in the
design, manufacture, distribution, sale, supply or resale of yttrium iron garnet
("YIG") oscillators and stand-alone YIG-based synthesizers within the field of
commercial telecommunications; and "Restricted Territory" means worldwide, and
includes the United States of America and each State, territory or possession of
the United States of America, Canada, Japan, Mexico, United Kingdom, Continental
Europe (including both Western Europe and Eastern Europe), Australia, New
Zealand, Taiwan, South Korea, Southeast Asia, China, Africa, South America and
each of the countries making up the former Soviet Union.
In the event that any court of competent jurisdiction shall hold any
provision set forth in this Section 5.2 to be invalid or unenforceable in any
jurisdiction, then (i) such provision or part thereof shall, with respect to
such circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (ii) the invalidity or unenforceability of such provision or part
thereof under such circumstances and in such jurisdiction shall not affect the
validity or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (iii) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this Section 5.2.
5.3 Publicity. Except as required by law neither the Seller nor the
Purchaser, without the prior written consent of the other (which will not be
unreasonably withheld), will make any press release or any similar public
announcement concerning the transactions contemplated hereby. Except as required
by law or occurring after the Closing, no written or oral announcement or
private disclosure with respect to the transactions contemplated hereby will be
made to any person unrelated to the Seller or the Purchaser unless jointly
approved by the Seller and the Purchaser (which approval will not be
unreasonably withheld). If disclosure is required by law, the disclosing party
shall consult in advance with the other party and attempt in good faith to
reflect such other party's concerns in the required disclosure.
6. Miscellaneous Provisions.
6.1 Governing Law; Venue; Consent to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of California
without regard to conflict of law principles. Any disputes under this Agreement
or the other Transaction Agreements shall be brought exclusively in the courts
of the United States, and, specifically such federal and state courts located in
the States of California and Florida, and Purchaser and each of
19.
the Seller and the IP Seller consent to and hereby submit to the personal
jurisdiction and venue of these courts.
6.2 Entire Agreement. This Agreement (including agreements incorporated
herein) and the Disclosure Schedule and Exhibits hereto contain the entire
agreement between the parties with respect to the subject matter hereof and
there are no agreements, understandings, representations or warranties between
the parties other than those set forth or referred to herein.
6.3 Expenses. Except as set forth in this Agreement, all legal and other
costs and expenses incurred in connection with this Agreement and the
Transactions shall be paid by the party incurring such costs and expenses and
each party shall be solely liable for its own costs and expenses incurred in
connection with this Agreement and the Transactions.
6.4 Further Assurances. Each party hereto shall execute and/or cause to be
delivered to each other party hereto such instruments and other documents, and
shall take such other actions, as such other party may reasonably request (at or
after the Closing) for the purpose of carrying out or evidencing any of the
Transactions.
6.5 Notices. Any notice or other communication required or permitted to be
delivered to any party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to the
address or facsimile telephone number set forth beneath the name of such party
below (or to such other address or facsimile telephone number as such party
shall have specified in a written notice given to the other parties hereto):
if to the Seller or IP Seller:
Tyco Electronics Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Tyco International (U.S.) Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
20.
if to the Purchaser:
Endwave Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ Godward LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
6.6 Headings. The underlined headings contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
6.7 Counterparts. This Agreement may be executed in several counterparts,
each of which shall constitute an original and all of which, when taken
together, shall constitute one agreement.
6.8 Successors and Assigns; Parties In Interest.
(a) This Agreement shall be binding upon: the Seller and the IP
Seller and each of their respective successors in interest and assigns (if any)
and the Purchaser and its successors in interest and assigns (if any). This
Agreement shall inure to the benefit of: the Seller, the IP Seller, and the
Purchaser; and the respective assigns and successors in interest (if any) of
each of the Seller, the IP Seller, and the Purchaser.
(b) The Purchaser may freely assign in whole or in part any or all of
its rights and obligations under this Agreement (including its indemnification
rights under Section 4) (a) pursuant to any merger, consolidation, business
combination, or other corporate reorganization or business transaction in which
the Purchaser may participate, or (b) to any affiliated Entity, without
obtaining the consent or approval of any other Person. Subject to the foregoing,
the Purchaser shall not delegate any of its obligations hereunder to any third
party without the written consent of the Seller, which consent shall not be
unreasonably withheld. The Seller and the IP Seller shall not be permitted to
assign any of their respective rights or delegate any of their respective
obligations under this Agreement without the Purchaser's prior written consent.
(c) Except for the provisions of Section 4, none of the provisions of
this Agreement is intended to provide any rights or remedies to any Person other
than the parties to this Agreement and, as to the Purchaser, its respective
successors and assigns (if any) and, as to
21.
the Seller and the IP Seller, its successors in interest and assigns (if any).
Without limiting the generality of the foregoing, no creditor of the Seller or
the IP Seller shall have any rights under this Agreement or any of the other
Transactional Agreements.
6.9 Remedies Cumulative; Specific Performance. The rights and remedies of
the parties hereto for Breaches of covenants and obligations to be performed by
the other parties hereto on and after the Closing Date as set forth in Article 5
hereof, shall be cumulative (and not alternative). The Seller and the IP Seller
each agree that: (a) in the event of any such Breach or threatened Breach by the
Seller or the IP Seller, as applicable, the Purchaser shall be entitled (in
addition to any other remedy that may be available to it) to (i) a decree or
order of specific performance or mandamus to enforce the observance and
performance of such covenant or obligation, and (ii) an injunction restraining
such Breach or threatened Breach; and (b) the Purchaser shall not be required to
provide any bond or other security in connection with any such decree, order or
injunction or in connection with any related action or Proceeding. The Purchaser
agrees that: (a) in the event of any such Breach or threatened Breach by the
Purchaser, the Seller and the IP Seller shall be entitled (in addition to any
other remedy that may be available to them) to (i) a decree or order of specific
performance or mandamus to enforce the observance and performance of such
covenant or obligation, and (ii) an injunction restraining such Breach or
threatened Breach; and (b) the Seller and the IP Seller shall not be required to
provide any bond or other security in connection with any such decree, order or
injunction or in connection with any related action or Proceeding.
6.10 Waiver.
(a) No failure on the part of any Person to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of any
Person in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy.
(b) No Person shall be deemed to have waived any claim arising out of
this Agreement, or any power, right, privilege or remedy under this Agreement,
unless the waiver of such claim, power, right, privilege or remedy is expressly
set forth in a written instrument duly executed and delivered on behalf of such
Person; and any such waiver shall not be applicable or have any effect except in
the specific instance in which it is given.
6.11 Amendments. This Agreement may not be amended, modified, altered or
supplemented other than by means of a written instrument duly executed and
delivered on behalf of each of the Purchaser, the Seller and the IP Seller.
6.12 Severability. In the event that any provision of this Agreement, or
the application of any such provision to any Person or set of circumstances,
shall be determined to be invalid, unlawful, void or unenforceable to any
extent, the remainder of this Agreement, and the application of such provision
to Persons or circumstances other than those as to which it is
22.
determined to be invalid, unlawful, void or unenforceable, shall not be impaired
or otherwise affected and shall continue to be valid and enforceable to the
fullest extent permitted by law.
6.13 Entire Agreement. The Transactional Agreements set forth the entire
understanding of the parties relating to the subject matter thereof and
supersede all prior agreements and understandings among or between any of the
parties relating to the subject matter thereof.
6.14 Construction.
(a) For purposes of this Agreement, whenever the context requires:
the singular number shall include the plural, and vice versa; the masculine
gender shall include the feminine and neuter genders; the feminine gender shall
include the masculine and neuter genders; and the neuter gender shall include
the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and "including,"
and variations thereof, shall not be deemed to be terms of limitation, but
rather shall be deemed to be followed by the words "without limitation."
(d) Except as otherwise indicated, all references in this Agreement
to "Sections" and "Exhibits" are intended to refer to Sections of this Agreement
and Exhibits to this Agreement.
6.15 No Third Party Rights. Except as otherwise set forth in Section 6.8
hereof, this Agreement is not intended and shall not be construed to create any
rights in any parties other than Seller, the IP Seller, and Purchaser and no
person shall have any rights as a third party beneficiary hereunder.
6.16 Waiver of Jury Trial. EACH OF THE SELLER, THE IP SELLER AND THE
PURCHASER HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER
BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
23.
The parties to this Agreement have caused this Agreement to be executed
and delivered as of the date first set forth above.
M/A-Com Tech, Inc.,
a Nevada corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: V.P.
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Tyco Electronics Logistics AG,
a company organized under the laws of Switzerland
By: /s/ ▇. ▇▇▇▇
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Title: Vice President Global Automotive
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Endwave Corporation,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------------------
Title: President and C.E.O.
-----------------------------------------
SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT
Exhibit A
CERTAIN DEFINITIONS
For purposes of this Agreement (including this Exhibit A):
Agreement. "Agreement" shall mean the Asset Purchase Agreement to which
this Exhibit A is attached (including the Disclosure Schedule).
Acquired Assets. "Acquired Assets" shall mean those assets listed on
Schedule I hereto.
Average Share Price. "Average Share Price" shall mean the average
(rounded to the nearest 1/10,000) of the Daily Per Share Prices for the ten
consecutive trading days ending on the last trading day immediately preceding
the Closing Date.
Breach. There shall be deemed to be a "Breach" of a representation,
warranty, covenant, obligation or other provision if there is or has been any
inaccuracy in or breach (including any inadvertent or innocent breach) of, or
any failure (including any inadvertent failure) to comply with or perform, such
representation, warranty, covenant, obligation or other provision; and the term
"Breach" shall be deemed to refer to any such inaccuracy, breach, failure, claim
or circumstance.
Code. "Code" shall mean the Internal Revenue Code of 1986, as amended.
Consent. "Consent" shall mean any approval, consent, ratification,
permission, permit, waiver or authorization (including any Governmental
Authorization).
Contract. "Contract" shall mean any written, oral, implied or other
agreement, contract, understanding, arrangement, instrument, note, guaranty,
indemnity, representation, warranty, assignment, certificate, purchase order,
open bid, outstanding offer, insurance policy, benefit plan, commitment,
covenant, assurance or undertaking of any nature.
Daily Per Share Price. "Daily Per Share Price" for any trading day
means the volume-weighted average (rounded to the nearest 1/10,000) of the per
share selling price of the Purchaser's common stock on the Nasdaq National
Market for that day, as reported by Bloomberg Financial Markets (or is such
service is unavailable, a service providing similar information selected by the
Seller and the Purchaser).
Damages. "Damages" shall include any loss, damage, injury, decline in
value, lost opportunity, Liability, claim, demand, settlement, judgment, award,
fine, penalty, Tax, fee (including any legal fee, expert fee, accounting fee or
advisory fee), charge, cost (including any cost of investigation) or expense of
any nature.
Disclosure Schedule. "Disclosure Schedule" shall mean the schedule
(dated as of the date of this Agreement) delivered to the Purchaser by the
Seller and the IP Seller, a copy of which is attached to this Agreement and
incorporated in this Agreement by reference.
A-1.
Employee Benefit Plan. "Employee Benefit Plan" shall have the meaning
specified in Section 3(3) of ERISA, and also include all other deferred
compensation, bonus or other incentive compensation, stock purchase, severance
pay, salary continuation for disability or other leave of absence, supplemental
unemployment benefits, layoff or reduction in force, retention, change in
control or educational assistance plans, arrangements or policies including, but
not limited to, any individual benefit arrangement, policy or practice.
Encumbrance. "Encumbrance" shall mean any lien, pledge, hypothecation,
charge, mortgage, security interest, encumbrance, equity, trust, equitable
interest, claim, preference, right of possession, lease, tenancy, license,
encroachment, covenant, infringement, interference, Order, proxy, option, right
of first refusal, preemptive right, community property interest, legend, defect,
impediment, exception, reservation, limitation, impairment, imperfection of
title, condition or restriction of any nature (including any restriction on the
transfer of any asset, any restriction on the receipt of any income derived from
any asset, any restriction on the use of any asset and any restriction on the
possession, exercise or transfer of any other attribute of ownership of any
asset).
Entity. "Entity" shall mean any corporation (including any non-profit
corporation), general partnership, limited partnership, limited liability
partnership, sole proprietorship, joint venture, estate, trust, cooperative,
foundation, society, political party, union, company (including any limited
liability company or joint stock company), firm or other enterprise,
association, organization or entity.
ERISA. "ERISA" shall mean the Employee Retirement Income Security Act
of 1974.
Governmental Authorization. "Governmental Authorization" shall mean
any: (a) permit, license, certificate, franchise, concession, approval, consent,
ratification, permission, clearance, confirmation, endorsement, waiver,
certification, designation, rating, registration, qualification or authorization
issued, granted, given or otherwise made available by or under the authority of
any Governmental Body or pursuant to any Legal Requirement; or (b) right under
any Contract with any Governmental Body.
Governmental Body. "Governmental Body" shall mean any: (a) nation,
principality, state, commonwealth, province, territory, county, municipality,
district or other jurisdiction of any nature; (b) federal, state, local,
municipal, foreign or other government; (c) governmental or quasi-governmental
authority of any nature (including any governmental division, subdivision,
department, agency, bureau, branch, office, commission, council, board,
instrumentality, officer, official, representative, organization, unit, body or
Entity and any court or other tribunal); (d) multi-national organization or
body; or (e) individual, Entity or body exercising, or entitled to exercise, any
executive, legislative, judicial, administrative, regulatory, police, military
or taxing authority or power of any nature.
Intellectual Property Assets. "Intellectual Property Assets" shall mean
all patents, trademarks, service marks, trade names, copyrights, trade secrets,
know-how, licenses, information and other proprietary rights and processes and
intellectual property used in the
A-2.
Business (except to the extent such rights are provided to the Purchaser under
the other Transactional Agreements), including without limitation the following:
(a) Any and all common-law copyright rights and like protections in
each work of authorship and derivative work thereof domestic or foreign, whether
published or unpublished, statutory or common law;
(b) Any and all trade secrets;
(c) Any and all design rights which may be available to Purchaser in
connection with the Acquired Assets;
(d) Any and all know-how attributable to the Acquired Assets,
including manufacturing know-how, materials and processes know-how, design know-
how (including design databases and circuit files), technical information and
data, operating and business procedures, work instructions and similar
information;
(e) All patents, patent applications and like protections both
domestic and foreign, including, without limitation, improvements, divisions,
continuations, renewals, reissues, extensions and continuations-in-part of the
same;
(f) Any trademark and servicemark rights, whether registered or not,
and whether state, common law, federal or foreign, applications to register and
registrations of the same and like protections, and the entire goodwill
possessed by IP Seller relating to the Intellectual Property Assets as connected
with and symbolized by such trademarks;
(g) Any and all claims for damages by way of past, present and future
infringement of any of the rights included above, with the right, but not the
obligation, to ▇▇▇ for and collect such damages for said use or infringement of
the intellectual property rights identified above;
(h) All licenses or other rights, to the extent a security interest
may be granted therein, to use any of the items listed above, and all license
fees and royalties arising from such use to the extent permitted by such license
or rights;
(i) All amendments, renewals and extensions of any Intellectual
Property Asset; and
(j) All proceeds and products of the foregoing, including, without
limitation, all payments under insurance or any indemnity or warranty payable in
respect of any of the foregoing.
Knowledge. For purposes of this Agreement, an individual shall be deemed to
have "Knowledge" of a particular fact, matter or circumstance if such individual
has or had actual knowledge of such fact, matter or circumstance; provided that
such person has or had no actual knowledge of any other fact, matter or
circumstance that is a reasonable basis for believing the statement qualified as
to such person's "knowledge" is untrue in any material respect. The Seller
A-3.
or the IP Seller, as applicable, shall be deemed to have "knowledge" of a
particular fact, matter or circumstance if any of ▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇,
as to the Seller; or ▇▇▇▇▇▇▇▇ ▇▇▇▇, as to the IP Seller, has knowledge (as
defined above) of such fact, matter or circumstance. The Seller shall be deemed
to have knowledge of a fact, matter or circumstance if the IP Seller may be
deemed to have "knowledge" of such fact, matter or circumstance as defined
herein. The Purchaser shall be deemed to have "knowledge" of a particular fact,
matter or circumstance if any of its executive officers has knowledge (as
defined above) of such fact, matter or circumstance.
Legal Requirement. "Legal Requirement" shall mean any federal, state,
local, municipal, foreign or other law, statute, legislation, constitution,
principle of common law, resolution, ordinance, code, edict, decree,
proclamation, treaty, convention, rule, regulation, ruling, directive,
pronouncement, requirement, specification, determination, decision, opinion or
interpretation issued, enacted, adopted, passed, approved, promulgated, made,
implemented or otherwise put into effect by or under the authority of any
Governmental Body.
Liability. "Liability" shall mean any debt, obligation or liability of
any nature (including any unknown, undisclosed, unmatured, unaccrued,
unasserted, contingent, indirect, conditional, implied, vicarious, derivative,
joint, several or secondary liability), regardless of whether such debt,
obligation, duty or liability would be required to be disclosed on a balance
sheet prepared in accordance with generally accepted accounting principles and
regardless of whether such debt, obligation, duty or liability is immediately
due and payable; and shall include without limitation any Liability with respect
to compliance with laws regulating environmental matters and disposal of
hazardous substances.
Material Adverse Effect. "Material Adverse Effect" shall mean, with
respect to the Seller or the IP Seller, any change, effect or circumstance that,
individually or when taken together with all other changes, effects or
circumstance that have occurred prior to the date of determination of the
occurrence of the material adverse effect, is or is reasonably likely to (a)
adversely affect the enforceability of any of the Transactional Agreements by
the Purchaser, or (b) adversely affect the properties, condition (financial or
otherwise), results of operations, earnings or prospects or rights of the
Business or the Acquired Assets, as applicable, or (c) impair the Seller's
ability to fulfill its obligations under the terms of any of the Transactional
Agreements or (d) adversely affect the aggregate rights and remedies of the
Purchaser under any of the Transactional Agreements; and with respect to
Purchaser, shall mean any change, effect or circumstance that, individually or
when taken together with all other changes, effects or circumstance that have
occurred prior to the date of determination of the occurrence of the material
adverse effect, is or is reasonably likely to (a) adversely affect the
enforceability of any of the Transactional Agreements by the Seller or the IP
Seller or (b) impairs the Purchaser's ability to fulfill its obligations under
the terms of any of the Transactional Agreements or (c) adversely affect the
aggregate rights and remedies of the Seller or the IP Seller under any of the
Transactional Agreements. For the purposes of this Agreement, materiality shall,
unless specifically stated to the contrary, be determined without regard to the
fact that various provisions of this Agreement set forth specific dollar
amounts.
A-4.
Order. "Order" shall mean any: (a) order, judgment, injunction, edict,
decree, ruling, pronouncement, determination, decision, opinion, verdict,
sentence, subpoena, writ or award issued, made, entered, rendered or otherwise
put into effect by or under the authority of any court, administrative agency or
other Governmental Body or any arbitrator or arbitration panel; or (b) Contract
with any Governmental Body entered into in connection with any Proceeding.
Ordinary Course of Business. An action taken by or on behalf of the
Seller shall not be deemed to have been taken in the "Ordinary Course of
Business" unless:
(a) such action is recurring in nature, is consistent with the past
practices of the Seller (to the extent there may be an established past
practice) and is taken in the ordinary course of the normal operations of the
Business;
(b) such action is taken in accordance with sound and prudent
business practices; and
(c) such action is not required to be authorized by the stockholders
of the Seller, the board of directors of the Seller or any committee of the
board of directors of the Seller and does not require any other separate or
special authorization of any nature; and
(d) such action is similar in nature and magnitude to actions
customarily taken, without any separate or special authorization, in the
ordinary course of the normal operations of comparable Entities.
Person. "Person" shall mean any individual, Entity or Governmental
Body.
Proceeding. "Proceeding" shall mean any action, suit, litigation,
arbitration, proceeding (including any civil, criminal, administrative,
investigative or appellate proceeding and any informal proceeding), prosecution,
contest, hearing, inquiry, inquest, audit, examination or investigation
commenced, brought, conducted or heard by or before, or otherwise involving, any
Governmental Body or any arbitrator or arbitration panel.
Related Party. Each of the following shall be deemed to be a "Related
Party": (a) each individual who is, or who has at any time been, an officer of
the Seller; (b) any Entity (other than the Seller) in which any one of the
individuals referred to in clause "(a)" above holds or held (or in which more
than one of such individuals collectively hold or held), beneficially or
otherwise, a controlling interest or a material voting, proprietary or equity
interest.
Representatives. "Representatives" shall mean officers, directors,
employees, agents, attorneys, accountants, advisors and representatives.
Tax. "Tax" shall mean any tax (including any income tax, franchise tax,
capital gains tax, estimated tax, gross receipts tax, value-added tax, surtax,
excise tax, ad valorem tax, transfer tax, stamp tax, sales tax, use tax,
property tax, business tax, occupation tax, inventory tax, occupancy tax,
withholding tax or payroll tax), levy, assessment, tariff, impost, imposition,
toll, duty (including any customs duty), deficiency or fee, and any related
charge or amount (including any fine, penalty or interest), that is, has been or
may in the future be (a) imposed,
A-5.
assessed or collected by or under the authority of any Governmental Body, or (b)
payable pursuant to any tax-sharing agreement or similar Contract.
Tax Return. "Tax Return" shall mean any return (including any
information return), report, statement, declaration, estimate, schedule, notice,
notification, form, election, certificate or other document or information that
is, has been or may in the future be filed with or submitted to, or required to
be filed with or submitted to, any Governmental Body in connection with the
determination, assessment, collection or payment of any Tax or in connection
with the administration, implementation or enforcement of or compliance with any
Legal Requirement relating to any Tax.
Transactional Agreements. "Transactional Agreements" shall mean: (a)
this Agreement; (b) the ▇▇▇▇ of Sale and Assignment and Assumption Agreement
referred to in Section 1.4(c); (c) the offer letters for employment referred to
in Section 1.4(d); (d) the Integration Technologies License Agreement referred
to in Section 1.4(e); (e) the YIG Technology License Agreement referred to in
Section 1.4(f); (f) the Manufacturing Services and Product Supply Agreement
referred to in Section 1.4(g); (g) the Registration Rights Agreement referred to
in Section 1.4(h) and (h) any ancillary agreements executed on or after the
Closing Date referred to in Sections 1.4(k) and 5.1(a).
Transactions. "Transactions" shall mean (a) the execution and delivery
of the respective Transactional Agreements, and (b) all of the transactions
contemplated by the respective Transactional Agreements, including: (i) the sale
of the Acquired Assets in accordance with this Agreement; (ii) the performance
by the Seller and the Purchaser of their respective obligations under the
Transactional Agreements; and (iii) the exercise by the Seller and the Purchaser
of their respective rights under the Transactional Agreements.
WARN Act. "WARN Act" shall mean the Worker Adjustment and Retraining
Notification Act, 29 U.S.C. Section 2101 et seq. (1988), as amended.
A-6.
Exhibit B
Form of ▇▇▇▇ of Sale and Assignment and Assumption Agreement
This ▇▇▇▇ of Sale and Assignment and Assumption Agreement (the
"Agreement") is entered into as of April 24, 2001, by and among M/A-Com Tech,
Inc., a Nevada corporation (the "Seller" and an "Assignor"), Tyco Electronics
Logistics AG, a company organized under the laws of Switzerland (the "IP Seller"
and an "Assignor"), and Endwave Corporation, a Delaware corporation (the
"Purchaser" and the "Assignee"). Capitalized terms used but not defined in this
Agreement shall have the meanings given to them in the Purchase Agreement (as
defined below).
RECITALS
Whereas, the Seller owns all of the assets (other than the Intellectual
Property Assets owned by the IP Seller) used exclusively in its broadband
wireless access business (excluding the outdoor unit component of such business
as the same relates to products sold to Ensemble Communications Inc., the
"Business") and the IP Seller owns all of the Intellectual Property Assets used
exclusively in the Business;
Whereas, immediately prior to the execution of this Agreement, the
Seller and the IP Seller have entered into an Asset Purchase Agreement of even
date herewith (the "Purchase Agreement") by and among the Seller, the IP Seller
and the Purchaser for the sale of the Acquired Assets to the Purchaser; and
Whereas, in accordance with the terms of the Purchase Agreement, the
Seller, the IP Seller and the Purchaser are entering into this Agreement in
order to (A) accomplish the delivery, transfer, conveyance and assignment by the
Seller to the Purchaser of all of the Seller's right, title and interest in and
to the Acquired Assets, including the Acquired Contracts, but excluding the
Intellectual Property Assets and (B) the delivery, transfer, conveyance and
assignment by the IP Seller to the Purchaser of all of the IP Seller's right,
title and interest in and to the Intellectual Property Assets, and the Purchaser
wishes to accept such deliveries, transfers, conveyances and assignments, on the
terms and subject to the conditions set forth in the Purchase Agreement;
AGREEMENT
Now, Therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. ▇▇▇▇ of Sale.
(a) The Seller hereby sells, transfers, conveys and assigns to the
Purchaser all right, title and interest of the Seller in and to the Acquired
Assets (excluding the Intellectual Property Assets), free and clear of any and
all Encumbrances. Such sale and delivery of the Acquired Assets (excluding the
Intellectual Property Assets) shall be in accordance with, and is subject to,
1.
all of the representations, warranties and covenants as set forth in the
Purchase Agreement. The Seller shall, at the Purchaser's request, execute and
deliver such further instruments of sale, assignment and transfer and take such
further actions as the Purchaser may reasonably request in order to vest good
and marketable title in and to the Acquired Assets (excluding the Intellectual
Property Assets) in the Purchaser, put the Purchaser in possession of all of the
Acquired Assets (excluding the Intellectual Property Assets) and assure to the
Purchaser all rights therein and all benefits thereof.
(b) The IP Seller hereby sells, transfers, conveys and assigns to the
Purchaser all right, title and interest of the IP Seller in and to the
Intellectual Property Assets, free and clear of any and all Encumbrances. Such
sale and delivery of the Intellectual Property Assets shall be in accordance
with, and is subject to, all of the representations, warranties and covenants as
set forth in the Purchase Agreement. The IP Seller shall, at the Purchaser's
request, execute and deliver such further instruments of sale, assignment and
transfer and take such further actions as the Purchaser may reasonably request
in order to vest good and marketable title in and to the Intellectual Property
Assets in the Purchaser, put the Purchaser in possession of all of the
Intellectual Property Assets and assure to the Purchaser all rights therein and
all benefits thereof.
2. Assignment and Assumption of Acquired Contracts.
(a) The Seller hereby grants, conveys, transfers and assigns to the
Purchaser and each of the Purchaser's successors and assigns forever, all of the
Seller's right, title and interest in and to the Acquired Contracts, and the
Purchaser hereby accepts such transfer, assignment and conveyance, subject to
the terms and conditions for such assignment and assumption set forth in the
Purchase Agreement and Section 3 of this Agreement.
(b) The Purchaser hereby assumes, subject to the terms and conditions
of the Purchase Agreement, the following obligations of the Seller as of the
Closing Date: all liabilities and obligations pertaining to sales orders,
unfilled purchase orders, equipment leases, accounts payable and the Acquired
Contracts, each to the extent set forth in the Disclosure Schedule to the
Purchase Agreement, and all liabilities and obligations arising out of or
resulting from the conduct of the Business subsequent to the Closing Date.
Provided, however, that such obligations shall be assumed by the Purchaser only
to the extent such obligations (A) do not arise from or relate to any Breach by
the Seller of any provision of such Acquired Contract, (B) do not arise from or
relate to any event, circumstance or condition occurring or existing on or prior
to the Closing Date that, with notice or lapse of time, would constitute or
result in a Breach of such Acquired Contract, and (C) are ascertainable (in
nature and amount) solely by reference to the express terms of such Acquired
Contract.
3. Further Assurances. Each of the Seller and the IP Seller hereby agree
to take any and all further action, including, without limitation, the
execution, acknowledgement and delivery of any and all further deeds,
assignments, conveyances, other assurances, documents and other instruments of
transfer and take such other actions consistent with the foregoing that
Purchaser may reasonably request in order to effect the intent and purposes of
this Agreement and the transactions contemplated hereby.
4. Successors and Assigns.
(a) This Agreement shall be binding upon: the Seller and the IP Seller and
each of their respective successors in interest and assigns (if any) and the
Purchaser and its successors in interest and assigns (if any). This Agreement
shall inure to the benefit of: the Seller and the IP Seller; the Purchaser; and
the respective assigns and successors in interest (if any) of each of the
Seller, the IP Seller, and the Purchaser.
(b) The Purchaser may freely assign in whole or in part any or all of its
rights under this Agreement (a) pursuant to any merger, consolidation, business
combination, or other corporate reorganization or business transaction in which
the Purchaser may participate, or (b) to any affiliated Entity, without
obtaining the consent or approval of any other Person. Neither the Seller nor
the IP Seller shall be permitted to assign any of their respective rights or
delegate any of their respective obligations under this Agreement without the
Purchaser's prior written consent (which consent shall not be unreasonably
withheld).
5. Waiver.
(a) No failure on the part of any Person to exercise any power, right,
privilege or remedy under this Agreement, and no delay on the part of any Person
in exercising any power, right, privilege or remedy under this Agreement, shall
operate as a waiver of such power, right, privilege or remedy; and no single or
partial exercise of any such power, right, privilege or remedy shall preclude
any other or further exercise thereof or of any other power, right, privilege or
remedy.
(b) No Person shall be deemed to have waived any claim arising out of this
Agreement, or any power, right, privilege or remedy under the Agreement, unless
the waiver of such claim, power, right, privilege or remedy is expressly set
forth in a written instrument duly executed and delivered on behalf of such
Person; and any such waiver shall not be applicable or have any effect except in
the specific instance in which it is given.
6. Amendments. This Agreement may not be amended, modified, altered or
supplemented other than by means of a written instrument duly executed and
delivered on behalf of each of the Purchaser, the Seller and the IP Seller.
7. Construction.
(a) For purposes of this Agreement, whenever the context requires: the
singular number shall include the plural, and vice versa; the masculine gender
shall include the feminine and neuter genders; the feminine gender shall include
the masculine and neuter genders; and the neuter gender shall include the
masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and "including," and
variations thereof, shall not be deemed to be terms of limitation, but rather
shall be deemed to be followed by the words "without limitation."
8. Governing Law; Miscellaneous.
(a) This Agreement shall be construed in accordance with, and governed in
all respects by, the internal laws of the State of California (without giving
effect to conflict of law principles).
(b) This Agreement may be executed in any number of counterparts, each of
which will be deemed an original, but all of which together will constitute one
and the same instrument.
In Witness Whereof, the parties hereto have executed this ▇▇▇▇
of Sale and Assignment and Assumption Agreement as of the date first written
above.
Seller:
M/A Com Tech, Inc.,
a Nevada corporation
By:______________________________________
Title:___________________________________
IP Seller:
Tyco Electronics Logistics AG,
a company organized under the laws of Switzerland
By:______________________________________
Title:___________________________________
Purchaser:
Endwave Corporation,
a Delaware corporation
By:______________________________________
Title:___________________________________
SIGNATURE PAGE TO
▇▇▇▇ OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT
Exhibit C
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is made and entered
into as of April 24, 2001, by and between Endwave Corporation, a Delaware
corporation (the "Company") and M/A-Com Tech, Inc., a Nevada corporation (the
"Seller").
Recitals
A. The Company and the Seller have entered into that certain Asset
Purchase Agreement dated as of the date hereof (the "Purchase Agreement"),
pursuant to which the Seller will sell to the Company certain assets used
exclusively in the Seller's broadband wireless access business, and Tyco
Electronics Logistics AG (the "IP Seller") will sell to the company certain
intellectual property assets related thereto (the "Acquired Assets").
Capitalized terms used in this Agreement and not otherwise defined shall have
the meanings given to them in the Purchase Agreement.
B. In consideration for the sale of the Acquired Assets to the Company
by the Seller, the Company has agreed to provide the Seller with certain
registration rights as to the shares of the Company's common stock acquired by
the Seller pursuant to the Purchase Agreement as more fully described herein.
Agreement
The parties, intending to be legally bound, agree as follows:
SECTION 1. Registration
1.1 Registrable Shares. As used in this Agreement, "Registrable Shares"
means the shares of the Company's Common Stock issued to the Seller pursuant to
the Purchase Agreement and any shares of the Company's Common Stock issued in
respect thereof as a result of any stock split, stock dividend, share exchange,
merger, consolidation or similar recapitalization taking place after the
Effective Date (as defined in the Purchase Agreement); provided, however, that
Registrable Shares shall cease to be Registrable Shares when (i) a registration
statement covering such Registrable Shares on Form S-3 shall have become
effective under the Securities Act of 1933, as amended (the "1933 Act"), and
such Registrable Shares shall have been disposed of in accordance with the
Registration Statement, or (ii) such Registrable Shares may be transferred
without restriction pursuant to paragraph (k) of Rule 144 under the 1933 Act, as
such rule may be amended from time to time, or any successor rule or regulation
("Rule 144"). In the event the Seller should wish to sell shares pursuant to
Rule 144 (other than pursuant to paragraph (k) thereof), the Seller shall
provide any representation letters relating to such sale in usual and customary
form as may be reasonably requested by the Company's counsel in order for the
Company's counsel to render an opinion relating to such sale, as the case may
be.
1.2 Registration.
1.
(a) On October 17, 2001, barring any events or circumstances beyond
the reasonable control of the Company, and in no event later than November 17,
2001, the Company shall have previously prepared and shall file with the
Securities and Exchange Commission ("SEC") a registration statement on Form S-3
(the "Registration Statement") covering the resale of the Registrable Shares.
The Company shall provide the Seller with a reasonable opportunity to review and
approve the Registration Statement prior to filing. The Company shall use its
best efforts to cause the Registration Statement to be declared effective as
soon as practicable after filing. The date the Registration Statement shall be
declared effective by the SEC is referred to herein as the Effective Date.
(b) The Seller shall furnish such information as the Company may
reasonably request in connection with the preparation of the Registration
Statement. Upon the effectiveness of the Registration Statement with the SEC,
pursuant to the terms of this Agreement, the Registrable Shares may be sold in
accordance with the Registration Statement under the 1933 Act. Subject to the
terms of this Agreement, the Company shall use commercially reasonable efforts
to cause the Registration Statement to remain effective until the earlier of (i)
the date on which all Registrable Shares covered by the Registration Statement
have been sold to the public pursuant to the Registration Statement or (ii)
eighteen months after the Effective Date, plus the amount of time, if any, that
the Registration Statement may be suspended pursuant to Section 4.
SECTION 2. The Company's Obligations
In connection with the Registration Statement referred to in Section 1.2,
the Company shall:
2.1 Registration Statement. Prepare and file with the SEC the
Registration Statement with respect to the Registrable Shares and thereafter use
commercially reasonable efforts to cause the Registration Statement to become
and remain effective for the period set forth in Section 1.2.
2.2 Amendments and Supplements. Prepare and file with the SEC such
amendments and supplements to the Registration Statement and the prospectus used
in connection therewith as may be necessary to keep the Registration Statement
effective for the period set forth in Section 1.2 and to comply with the
provisions of the 1933 Act with respect to the sale or other disposition of the
shares of the Company's Common Stock covered by the Registration Statement.
2.3 Copies of Offering Documents. Furnish to the Seller such number of
copies of the Registration Statement, prospectus, and any amendments and
supplements thereto, in conformity with the requirements of the 1933 Act, such
documents incorporated by reference in the Registration Statement and such other
documents as the Seller may reasonably request, in order to facilitate the
public sale or other disposition of the Registrable Shares.
2.4 Misleading Prospectus. Promptly notify the Seller, at any time when
a prospectus covered by the Registration Statement is required to be delivered
under the 1933 Act, upon the Company's becoming aware that the prospectus
included in the Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
2.
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing, and immediately
thereafter use reasonable efforts to prepare and file with the SEC and furnish
to the Seller such number of copies as the Seller may reasonably request of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Shares, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they are made.
2.5 Blue Sky Filings. Use its reasonable efforts to register and qualify
the securities covered by the Registration Statement under the Blue Sky laws of
such jurisdictions as shall be reasonably requested by the Seller, provided that
the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions.
2.6 Listing of Shares with Nasdaq. Register and qualify the securities
covered by the Registration Statement for inclusion for quotation on the Nasdaq
National Market.
2.7 Transfer Agent. Arrange for the Company's transfer agent and
registrar to act as transfer agent and registrar for all Registrable Securities
registered pursuant to the Registration Statement and provide a CUSIP number for
all such Registrable Securities.
SECTION 3. The Seller's Obligations
In connection with the registration statement referred to in Section 1.2,
the Seller shall:
3.1 Other Documents and Information. Complete, execute, acknowledge
and/or deliver such questionnaires, custody agreements, underwriting agreements
(if the registration is underwritten) and other documents, certificates and
instruments as are reasonably required by and customarily provided to the
Company or any underwriter(s) and are otherwise necessary in connection with the
registration and offering. The Seller shall promptly provide to the Company such
information concerning the Seller and its' ownership of the Company's
securities, the intended method of distribution and such other information as
may be required by applicable law, rule or regulation or as may be reasonably
requested by the Company.
3.2 Cessation of Offering. Upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 2.4, immediately
discontinue disposition of the Registrable Shares pursuant to the Registration
Statement covering such shares until the Seller's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 2.4, and, if so
directed by the Company, deliver to the Company all copies of the prospectus
covering such Registrable Shares in the Seller's possession at the time of
receipt of such notice.
3.3 No Preliminary Prospectus. The Seller shall not and shall not permit
any person or entity acting on Seller's behalf (other than an underwriter
selected by the Company or approved by the Company) to offer any Registrable
Shares by means of any preliminary prospectus.
3.
SECTION 4. Limitations
4.1 Other Transactions. The Company shall not be obligated to effect a
registration pursuant to Section 1, or to file any amendment or supplement
thereto, and may suspend the Seller's rights to make sales pursuant to an
effective registration pursuant to Section 1, at any time when the Company, in
the good faith judgment of its Board of Directors, reasonably believes that the
filing thereof at the time requested, or the offering of securities pursuant
thereto, would (i) materially and adversely affect a pending or proposed
acquisition, merger, recapitalization, consolidation, reorganization or similar
transaction, or negotiations, discussions or pending proposals related thereto
or (ii) be seriously detrimental to the Company and its stockholders, in which
event (under clause (i) or (ii) above) the Company may defer filing of a
registration statement (or suspend the Seller's rights to make sales pursuant to
an effective registration pursuant to Section 1) for a period of not more than
60 days; provided, however, that the Company shall not utilize the right
described in this Section 4.1 more than twice in any 12-month period.
SECTION 5. Expenses and Indemnification
5.1 Certain Fees and Commissions. The Company shall pay its own legal
and accounting fees and all printing fees in connection with the Registration
Statement; and the reasonable fees and expenses of outside counsel to the Seller
in connection with the Registration Statement. The Seller shall be responsible
for payment of any and all underwriting discounts and commissions of
underwriters or brokers incurred in connection with the offering and sale of the
Registrable Shares, as the case may be.
5.2 Other Expenses. The Company shall pay all registration and filing
fees attributable to the Registrable Shares and the listing fee payable to the
Nasdaq National Market.
5.3 Indemnification. To the extent Registrable Shares are included in a
registration statement under Section 1:
(a) Indemnification by the Company. To the extent permitted by
law, the Company will indemnify and hold harmless the Seller and its affiliates,
successors and assigns, any underwriter (as defined in the ▇▇▇▇ ▇▇▇) for the
Seller, and each person, if any, who controls the Seller or such underwriter
within the meaning of the 1933 Act or the Securities Exchange Act of 1934 (the
"1934 Act"), against any losses, claims, damages, liabilities or actions to
which they may become subject under the 1933 Act, the 1934 Act or other federal
or state law, arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
including any preliminary prospectus (to the extent not prohibited by Section
3.3) or final prospectus contained therein or any amendments or supplements
thereto, or arising out of or based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the context in which made, not misleading; and the
Company will reimburse the Seller and its affiliates, successors and assigns,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the indemnification
and other rights provided for in this Section 5.3(a) for the Seller shall not
apply (i) to any such loss, claim, damage, liability, or
4.
action to the extent that it arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in the
Registration Statement, preliminary prospectus or final prospectus or any
amendment or supplement thereto, in reliance upon and in conformity with
information furnished for use in connection with such registration by the Seller
or (ii) if the person asserting any such loss, claim, damage, liability or
action who purchased the Registrable Shares which are the subject thereof did
not receive a copy of an amended preliminary prospectus or the final prospectus
(or the final prospectus as amended or supplemented) at or prior to the written
confirmation of the sale of such Registrable Shares to such person because of
the failure of the Seller to so provide such amended preliminary or final
prospectus and the untrue statement or alleged untrue statement or omission or
alleged omission of a material fact made in such preliminary prospectus was
corrected in the amended preliminary prospectus or the final prospectus (or the
final prospectus as amended and supplemented). Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the Seller, underwriter or controlling person and shall survive the transfer of
the Registrable Shares by the Seller.
(b) Indemnification by the Seller. To the extent permitted by
law, the Seller will indemnify and hold harmless the Company, its successors and
assigns, its officers and directors, any underwriter (as defined in the ▇▇▇▇
▇▇▇) with respect to the Registrable Shares, and each person, if any, who
controls the Company or any such underwriter within the meaning of the 1933 Act
or the 1934 Act, against any losses, claims, damages, liabilities or actions
(joint or several) to which they may become subject under the 1933 Act, the 1934
Act or other federal or state law, arising out of or based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, or arising out of or
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the context in which made, not misleading; provided that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with information furnished by the Seller for use in such
registration by the Seller, or (ii) the failure of the Seller at or prior to the
written confirmation of the sale of Registrable Shares to send or arrange
delivery of a copy of an amended preliminary prospectus or the final prospectus
(or the final prospectus as amended or supplemented) to the person asserting any
such loss, claim, damage, liability or action who purchased the Registrable
Shares which is the subject thereof and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact made in such
preliminary prospectus was corrected in the amended preliminary prospectus or
the final prospectus (or the final prospectus as amended and supplemented). The
Seller will reimburse the Company and each such officer or director or
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability, or action. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any such
officer, director, underwriter or controlling person and shall survive the
transfer of the Registrable Shares by the Seller.
5.4 Indemnification Procedures. Promptly after receipt by a person who
may be entitled to indemnification under Section 5 (an "indemnified party") of
notice of the commencement of any action (including any governmental action) for
which indemnification may be available under Section 5, such indemnified party
will, if a claim in respect thereof is to
5.
be made against any person who must provide indemnification under Section 5 (an
"indemnifying party"), deliver to the indemnifying party a written notice of the
commencement thereof, and the indemnifying party shall have the right to
participate in and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own counsel (and
the reasonable fees of such counsel shall be paid by the indemnifying party) and
assume its own defense if (i) the retention of such counsel has been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party has failed to promptly assume the defense and employ
experienced counsel reasonably acceptable to the indemnified party after the
indemnifying party has received the notice of the indemnification matter from
the indemnified party, or (iii) the named parties to any such action include
both the indemnified party and the indemnifying party, and the representation of
both parties by the same counsel would be inappropriate due to a conflict of
interest between them. It is understood, however, that the indemnifying party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys for all
indemnified parties unless the indemnified parties in good faith conclude and
are advised by their counsel that there is an actual or potential conflict of
interest among the indemnified parties. No indemnification provided for in
Section 5.3(a) or Section 5.3(b) shall be available to any party who shall fail
to give notice as provided in this Section 5.3(c) to the extent that the party
to whom notice was not given was unaware of the proceeding to which such notice
would have related and was materially prejudiced by the failure to give such
notice.
SECTION 6. Other Provisions
6.1 Governing Law; Venue; Consent to Jurisdiction. This Agreement shall
be governed by and construed in accordance with the laws of the State of
California without regard to conflict of law principles. Any disputes under this
Agreement shall be brought exclusively in the courts of the United States, and,
specifically such federal and state courts located in the States of California
and Florida, and the Company and the Seller consent to and hereby submit to the
personal jurisdiction and venue of these courts.
6.2 Attorneys' Fees. If any action or proceeding relating to this
Agreement or the enforcement of any provision of this Agreement is brought
against any party hereto, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition to any other
relief to which the prevailing party may be entitled).
6.3 Notices. Any notice or other communication required or permitted to
be delivered to any party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received (a) when delivered (by hand) or
(b) the first business day after sent by registered mail, by courier or express
delivery service or by facsimile, in any case to the address or facsimile
telephone number set forth in Section 6.5 of the Purchase Agreement (or to such
other address or facsimile telephone number as such party shall have specified
in a written notice given to the other parties hereto.
6.
6.4 Headings.The bold-faced headings contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
6.5 Counterparts. This Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
6.6 Successors and Assigns. This Agreement shall be binding upon each of
the parties hereto and each of their respective permitted successors and
assigns, if any. The Seller may not assign the Seller's rights under this
Agreement without the express prior written consent of the Company; provided,
however, that the Seller may freely assign its rights under this Agreement to an
affiliate of the Seller. Nothing in this Agreement is intended to confer, or
shall be deemed to confer, any rights or remedies upon any person or entity
other than the parties hereto and their permitted successors and assigns. This
Agreement shall inure to the benefit of the Seller; the Company; and the
respective successors and assigns, if any, of the foregoing.
6.7 Waiver.
(a) No failure on the part of any Person to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of any
Person in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy.
(b) No Person shall be deemed to have waived any claim arising out
of this Agreement, or any power, right, privilege or remedy under this
Agreement, unless the waiver of such claim, power, right, privilege or remedy is
expressly set forth in a written instrument duly executed and delivered on
behalf of such Person; and any such waiver shall not be applicable or have any
effect except in the specific instance in which it is given.
6.8 Amendments. This Agreement may not be amended, modified, altered or
supplemented other than by means of a written instrument duly executed and
delivered on behalf of each of the Company and the Seller.
6.9 Severability. In the event that any provision of this Agreement, or
the application of any such provision to any Person or set of circumstances,
shall be determined to be invalid, unlawful, void or unenforceable to any
extent, the remainder of this Agreement, and the application of such provision
to Persons or circumstances other than those as to which it is determined to be
invalid, unlawful, void or unenforceable, shall not be impaired or otherwise
affected and shall continue to be valid and enforceable to the fullest extent
permitted by law.
6.10 Parties in Interest. Except for the provisions of Section 5, none of
the provisions of this Agreement is intended to provide any rights or remedies
to any Person other than the parties hereto and their respective affiliates,
successors and assigns, if any, and other persons described herein.
7.
6.11 Entire Agreement. This Agreement and the other agreements referred
to herein set forth the entire understanding of the parties hereto relating to
the subject matter hereof and thereof and supersede all prior agreements and
understandings among or between any of the parties relating to the subject
matter hereof and thereof.
6.12 Construction.
(a) For purposes of this Agreement, whenever the context requires:
the singular number shall include the plural, and vice versa; the masculine
gender shall include the feminine and neuter genders; the feminine gender shall
include the masculine and neuter genders; and the neuter gender shall include
the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and "including,"
and variations thereof, shall not be deemed to be terms of limitation, but
rather shall be deemed to be followed by the words "without limitation."
[Signature page to follow]
8.
This Registration Rights Agreement has been executed and delivered as of
the date first stated above.
Endwave Corporation,
a Delaware corporation
By:_____________________________________
Title:__________________________________
M/A-Com Tech, Inc.,
a Nevada corporation
By:_____________________________________
Title:__________________________________
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT