EXHIBIT 10.1
SEPARATION AGREEMENT
dated as of _______, 1998
between
SILICON GRAPHICS, INC.
and
MIPS TECHNOLOGIES, INC.
TABLE OF CONTENTS
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PAGE
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ARTICLE I DEFINITIONS
Section 1.1. Definitions.................................................1
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ARTICLE II TRANSFER OF ASSETS ANDASSUMPTION OF LIABILITIES
Section 2.1. Transfer of Assets..........................................7
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Section 2.2. Assignment and Assumption of Liabilities. (a)..............8
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Section 2.3. Transfers Not Effected On or Prior to the Closing Date. ...10
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Section 2.4. No Representations or Warranties; Consents. ...............10
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Section 2.5. Documents Relating to Transfer of Assets and Assignment
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and Assumption of Liabilities. ..........................11
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Section 2.6. Termination of Agreements..................................11
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ARTICLE III THE SEPARATION AND THE INITIAL PUBLIC OFFERING
Section 3.1. Cooperation Prior to the Separation........................12
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Section 3.2. Conduct of Company Business Pending Separation. ...........13
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Section 3.3. Silicon Graphics Board Action; Conditions
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Precedent to the Separation..............................13
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ARTICLE IV INDEMNIFICATION
Section 4.1. Release of Claims..........................................15
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Section 4.2. Indemnification by the Company.............................17
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Section 4.3. Indemnification by Silicon Graphics........................17
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Section 4.4. Notice and Payment of Claims...............................18
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Section 4.5. Notice and Defense of Third-Party Claims...................18
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Section 4.6. Insurance Proceeds........................................20
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Section 4.7. Contribution...............................................20
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Section 4.8. Subrogation................................................20
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Section 4.9. No Third-Party Beneficiaries...............................21
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Section 4.10. Remedies Cumulative......................................21
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Section 4.11. Survival of Indemnities..................................21
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Section 4.12. After-Tax Indemnification Payments.......................21
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ARTICLE V CERTAIN ADDITIONAL MATTERS
Section 5.1. Ancillary Agreements.......................................21
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Section 5.2. Company Officers and Board of Directors....................21
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Section 5.3. The Company Certificate of Incorporation and Bylaws.......21
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Section 5.4 New Credit Facility......................................22
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Section 5.5. Insurance Policies and Claims Administration..............22
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ARTICLE VI ACCESS TO INFORMATION
Section 6.1. Provision of Corporate Records............................24
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Section 6.2. Access to Information....................................24
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Section 6.3. Litigation Cooperation....................................24
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Section 6.4. Reimbursement.............................................24
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Section 6.5. Retention of Records......................................24
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Section 6.6. Confidentiality...........................................25
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Section 6.7. Protective Arrangements...................................25
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Section 6.8. Mail......................................................25
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ARTICLE VII DISPUTE RESOLUTION
Section 7.1. Agreement to Mediate......................................26
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Section 7.2. Escalation................................................26
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Section 7.3. Demand for Mediation......................................26
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Section 7.4. Certain Additional Matters................................27
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Section 7.5. Continuity of Service and Performance.....................27
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ARTICLE VIII MISCELLANEOUS
Section 8.1. Termination...............................................27
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Section 8.2. Expenses..................................................27
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Section 8.3. Notices...................................................28
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Section 8.4. Amendment and Waiver......................................29
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Section 8.5. Counterparts..............................................29
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Section 8.6. Governing Law; Jurisdiction; Forum........................29
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Section 8.7. Entire Agreement..........................................29
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Section 8.8. Parties in Interest.......................................29
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Section 8.9. Tax Sharing Agreement.....................................29
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Section 8.10. Further Assurances and Consents..........................30
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Section 8.11. Exhibits and Schedules...................................30
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Section 8.12. Legal Enforceability.....................................30
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Section 8.13. Titles and Headings......................................30
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SCHEDULES:
1.1(a) - Company Contracts
2.1(a)(i) - Tangible Personal Property
2.1(a)(ii) - Inventory
2.1(a)(iii) - Receivables
2.1(a)(vi) - Intellectual Property Agreements
2.1(a)(ix) - Sales and Promotional Material
2.1(a)(x) - Governmental Permits and Approvals
2.1(b)(i) - Excluded Assets
2.2(b)(i) - Excluded Liabilities
2.6(b) - Agreements that will not Terminate
5.5(a) - Covered Claims
6.6 - Non-disclosure Confidential Information
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SEPARATION AGREEMENT
SEPARATION AGREEMENT ("Agreement") dated as of June 1, 1998 by and between
Silicon Graphics, Inc., a Delaware corporation ("Silicon Graphics"), and MIPS
Technologies, Inc., a Delaware corporation (the "Company").
RECITALS
WHEREAS, the Board of Directors of Silicon Graphics has determined that it
is in the best interests of Silicon Graphics and its shareholders to separate
the Company Business from Silicon Graphics' other operations;
WHEREAS, in furtherance of the foregoing, it is appropriate and desirable
to transfer the Company Assets to the Company and to cause the Company to assume
the Company Liabilities, all as more fully described in this Agreement and the
Ancillary Agreements (such transfer of assets and assumption of liabilities are
herein after referred to as the "Separation.");
WHEREAS, the Board of Directors of Silicon Graphics has further
determined that it is appropriate and desirable, on the terms and conditions
contemplated hereby, to cause the Company and Silicon Graphics to sell, in an
initial public offering (the "Initial Public Offering"), up to such number of
shares of the Common Stock which shall not exceed 20% of the Company's
outstanding capital stock on a fully-diluted basis;
WHEREAS, it is appropriate and desirable to set forth the principal
corporate transactions required to effect the Separation and the Initial Public
Offering and certain other agreements that will govern certain matters relating
to the Separation and the Initial Public Offering and the relationship of
Silicon Graphics and the Company and their respective subsidiaries following the
Initial Public Offering.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
agreements, provisions and covenants contained in this Agreement, the parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used herein, the following terms have the
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following meanings:
"Action" means any claim, suit, arbitration, inquiry, proceeding
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or investigation by or before any court, governmental or regulatory or
administrative agency or commission or any other tribunal or other
Governmental Authority.
"Affiliate" of any specified Person means any other Person that,
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directly or indirectly, controls, is controlled by or is under direct or
indirect common control with such specified Person.
"Agreement" has the meaning specified in the Recitals.
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"Ancillary Agreements" means the Corporate Agreement, the Management
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Services Agreement, the Tax Sharing Agreement, the Technology License
Agreement and the Trademark Agreement.
"Closing Date" means the first time at which any shares of Common
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Stock are sold to the Underwriters pursuant to the Initial Public Offering
in accordance with the terms of the Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
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"Commission" means the Securities and Exchange Commission.
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"Common Stock" means the common stock, par value $0.001 per share, of
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the Company.
"Company Assets" has the meaning set forth in Section 2.1(a).
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"Company Balance Sheet" means the audited balance sheet of the
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Company, including the notes thereto, as of March 31, 1998.
"Company Business" means the business and operations of the various
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divisions and subsidiaries of Silicon Graphics engaged in the development
and licensing of processor designs for the embedded market based on
reduced-instruction-set-computing (RISC) architecture, consisting
principally of Silicon Graphics' MIPS Group.
"Company Bylaws" means the bylaws of the Company in the form filed as
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an exhibit to the Registration Statement.
"Company Certificate" means the restated certificate of incorporation
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of the Company in the form filed as an exhibit to the Registration
Statement.
"Company Contracts" means the following contracts and agreements to
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which Silicon Graphics or any of its Affiliates is a party or by which it
or any of its Affiliates or and of their respective assets is bound,
whether or not in writing, except for any such contract or agreement that
is contemplated to be retained by Silicon Graphics or any of its Affiliates
(other than the Company) pursuant to any provision of this Agreement or any
Ancillary Agreement:
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(a) all contracts or agreements listed or described on Schedule
1.1(a) (as such Schedule may be supplemented by mutual agreement of
the parties hereto after the date hereof and prior to the Closing
Date);
(b) any contracts or agreements entered into in the name of, or
expressly on behalf of, the Company;
(c) any contract or agreement that relates primarily to the
Company Business;
(d) any guarantee, indemnity, representation, warranty or other
Liability of the Company or Silicon Graphics in respect of any other
Company Contract, any Company Liability or the Company Business; and
(e) any contract or agreement that is otherwise expressly
contemplated pursuant to this Agreement or any of the Ancillary
Agreements to be assigned to the Company.
"Company Liabilities" has the meaning set forth in Section 2.2.
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"Consents" means any consents, waivers or approvals from, or
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notification requirements to, any third parties.
"Covered Claims" means any claim that is of a type covered by
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insurance or self insurance of Silicon Graphics in effect on the Closing
Date and that is a type of claim specified as a covered claim on Schedule
5.5(a).
"Effective Initial Public Offering Date" means the date on which the
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Registration Statement is declared effective by the Commission.
"Escalation Notice" has the meaning set forth in Section 7.2.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Excluded Assets" has the meaning set forth in Section 2.1(b).
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"Excluded Liabilities" has the meaning set forth in Section 2.2(b).
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"Governmental Approvals" means any notices, reports or other filings
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to be made, or any consents, registrations, approvals, permits or
authorizations to be obtained from, any Governmental Authority.
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"Governmental Authority" means any federal, state, local, foreign or
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international court, government, department, commission, board, bureau,
agency, official or other regulatory, administrative or governmental
authority.
"Intellectual Property" means (a) inventions, whether or not
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patentable, whether or not reduced to practice or whether or not yet made
the subject of a pending patent application or applications, (b) ideas and
conceptions of potentially patentable subject matter, including, without
limitation, any patent disclosures, whether or not reduced to practice and
whether or not yet made the subject of a pending patent application or
applications, (c) national (including the United States) and multinational
statutory invention registrations, patents, patent registrations and patent
applications (including all reissues, divisions, continuations,
continuations-in-part, extensions and reexaminations) and all rights
therein provided by multinational treaties or conventions and all
improvements to the inventions disclosed in each such registration, patent
or application, (d) trademarks, service marks, trade dress, logos, trade
names and corporate names, whether or not registered, including all common
law rights, and registrations and applications for registration thereof,
including, but not limited to, all marks registered in the United States
Patent and Trademark Office, the Trademark Offices of the States and
Territories of the United States of America, and the Trademark offices of
other nations throughout the world, and all rights therein provided by
multinational treaties or conventions, (e) copyrights (registered or
otherwise) and registrations and applications for registration thereof, and
all rights therein provided by multinational treaties or conventions, (f)
moral rights (including, without limitation, rights of paternity and
integrity), and waivers of such rights by others, (g) computer software,
including, without limitation, source code, operating systems and
specifications, data, data bases, files, documentation and other materials
related thereto, data and documentation, (h) trade secrets and
confidential, technical or business information (including ideas, formulas,
compositions, inventions, and conceptions of inventions whether patentable
or unpatentable and whether or not reduced to practice), (i) whether or not
confidential, technology (including know-how and show-how), manufacturing
and production processes and techniques, research and development
information, drawings, specifications, designs, plans, proposals, technical
data, copyrightable works, financial, marketing and business data, pricing
and cost information, business and marketing plans and customer and
supplier lists and information, (j) copies and tangible embodiments of all
the foregoing, in whatever form or medium, (k) all rights to obtain and
rights to apply for patents, and to register trademarks and copyrights, and
(l) all rights to ▇▇▇ and recover and retain damages and costs and
attorneys' fees for present and past infringement of any of the
Intellectual Property rights hereinabove set out.
"Inventory" means all inventory, merchandise, finished goods, and raw
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materials, packaging, supplies, works-in-progress and other personal
property related exclusively to the Company Business, maintained, held or
stored by or for Silicon Graphics on the date hereof and any prepaid
deposits for any of the same.
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"Liabilities" means any and all losses, claims, charges, debts,
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demands, Actions, causes of Action, suits, damages, obligations, payments,
costs and expenses, accounts, bonds, indemnities and similar obligations,
covenants, contracts, agreements, promises, guarantees and other
liabilities, including all contractual obligations, whether absolute or
contingent, matured or not matured, liquidated or unliquidated, accrued or
not accrued, known or unknown, whenever arising, and including those
arising under any law, rule, regulation, Action, threatened or contemplated
Action (including the costs and expenses of demands, assessments,
judgments, settlements and compromises relating thereto and attorneys' fees
and any and all costs and expenses (including allocated costs of in-house
counsel and other personnel), whatsoever reasonably incurred in
investigating, preparing or defending against any such Actions or
threatened or contemplated Actions), order or consent decree of any
Governmental Authority or any award of any arbitrator or mediator of any
kind, and those arising under any contract, commitment or undertaking,
including those arising under this Agreement or any Ancillary Agreement, in
each case, whether or not recorded or reflected or required to be recorded
or reflected on the books and records or financial statements of any
Person.
"Licensed Intellectual Property" means all Intellectual Property
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licensed or sublicensed by Silicon Graphics from a third party.
"Management Services Agreement" means the Management Services
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Agreement dated the date hereof between the Company and Silicon Graphics
regarding the provision of certain services by the Company from Silicon
Graphics, as such agreement may be amended from time to time.
"Mediation Demand Date" has the meaning set forth in Section 7.3.
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"Mediation Demand Notice" has the meaning set forth in Section 7.3.
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["New Credit Facility" means __________________.]
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"Owned Intellectual Property" means all Intellectual Property in and
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to which Silicon Graphics or the Company holds, or has a right to hold,
right, title and interest.
"Person" means an individual, a general or limited partnership, a
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corporation, a trust, a joint venture, an unincorporated organization, a
limited liability entity, any other entity and any Governmental Authority.
"Policy" has the meaning specified in Section 5.5(a).
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"Prospectus" means each preliminary, final or supplemental prospectus
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forming a part of the Registration Statement.
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"Receivables" means any and all accounts receivable, notes and other
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amounts receivable from third parties, including, without limitation,
customers and employees, arising exclusively from the conduct of the
Company Business before the date hereof, whether or not in the ordinary
course, together with any unpaid financing charges accrued thereon.
"Registration Statement" means the registration statement on
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Registration Statement on Form S-1 filed by the Company with the Commission
to effect the registration of the Common Stock pursuant to the Securities
Act, as such registration statement may be amended from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
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"Separation" has the meaning specified in the second recital of this
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Agreement.
"Separation Date" means the date determined by the Board of Directors
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of Silicon Graphics as the date on which the Separation shall be effected,
which is contemplated to occur on or about June 1, 1998.
"SGI Group" means Silicon Graphics and each Person (other than the
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Company and its subsidiaries) that is an Affiliate of Silicon Graphics
immediately after the Closing Date.
"Silicon Graphics Liabilities" means (i) all Liabilities of Silicon
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Graphics and the SGI Group under this Agreement or any other Ancillary
Agreements, (ii) all Liabilities of Silicon Graphics and the SGI Group
arising after the Closing Date, (iii) any liabilities for Taxes as for
which the Company is entitled to indemnification from Silicon Graphics
pursuant to the Tax Sharing Agreement and (iv) [Other].
"Tangible Personal Property" means all machinery, equipment, tools,
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supplies, furniture, fixtures, personalty, vehicles and other tangible
personal property used or held for use by Silicon Graphics or any member of
the SGI Group in the conduct of the Company Business.
"Tax" or "Taxes" shall have the meaning given to such term in the Tax
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Sharing Agreement.
"Tax Sharing Agreement" means the Tax Sharing Agreement dated as of
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the date hereof between Silicon Graphics and the Company providing for
certain tax related matters, as such agreement may be amended from time to
time.
"Technology Agreement" means the Technology Agreement dated as of the
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date hereof between Silicon Graphics and the Company providing for certain
intellectual property matters, as such agreement may be amended from time
to time.
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"Trademark Agreement" means the Trademark Agreement dated as of the
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date hereof between Silicon Graphics and the Company providing for certain
trademark matters, as such agreement may be amended from time to time.
Unless otherwise specified, any reference to any "subsidiary" or
"subsidiaries" of Silicon Graphics shall not include the Company.
ARTICLE II
TRANSFER OF ASSETS AND
ASSUMPTION OF LIABILITIES
Section 2.1. Transfer of Assets. (a) Silicon Graphics hereby assigns,
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transfers, conveys and delivers to the Company as of the Closing Date, and
agrees to cause each of its subsidiaries to assign, transfer, convey and deliver
to the Company as of the Closing Date, and the Company hereby accepts from
Silicon Graphics and such subsidiaries as of the Closing Date, all of Silicon
Graphics' and such subsidiaries' respective right, title and interest in or
under the following (the "Company Assets"):
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(i) all Tangible Personal Property, including, without limitation, the
Tangible Personal Property listed on Schedule 2.1(a)(i);
(ii) all Inventory, including, without limitation, the Inventory
listed on Schedule 2.1(a)(ii);
(iii) all Receivables, including, without limitation, all Receivables
listed on Schedule 2.1(a)(iii);
(iv) all books of account, general, financial and tax records,
invoices, shipping records, supplier lists, correspondence and other
documents, records and files exclusively relating to the Company Business,
and all personnel records of persons employed by Silicon Graphics that
become employees of the Company as of the Separation Date or thereafter;
(v) the goodwill of Silicon Graphics exclusively relating to the
Company Business;
(vi) all of the Owned Intellectual Property and the Licensed
Intellectual Property that is to be transferred pursuant to the agreements
listed on Schedule 2.1(a)(vi) to the extent provided therein;
(vii) all of the Company Contracts;
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(viii) all claims, causes of action, choses in action, rights of
recovery and rights of set-off of any kind (including rights to insurance
proceeds and rights under and pursuant to all warranties, representations
and guarantees made by suppliers of products, materials or equipment, or
components thereof), pertaining to, arising out of, and enuring to the
benefit of Silicon Graphics which relate exclusively to the Company
Business;
(ix) all sales and promotional literature, customer lists and other
sales-related materials owned, used, associated with or employed by Silicon
Graphics relating exclusively to the Company Business, including, without
limitation, the materials listed on Schedule 2.1(a)(ix);
(x) all municipal, state and federal franchises, permits, licenses,
agreements, waivers, exemptions, approvals and authorizations held or used
by Silicon Graphics in connection with, or required for, the Company
Business, to the extent transferable, including, without limitation, the
permits listed on Schedule 2.1(a)(x);
(xi) any assets reflected in the Company Balance Sheet as "Assets" of
the Company, subject to any dispositions of such assets subsequent to the
date of the Company Balance Sheet; and
(xii) any and all other assets, rights and claims of every kind and
nature held immediately prior to the Closing Date by Silicon Graphics and
used primarily in the Company Business. The intention of this clause (xii)
is only to rectify any inadvertent omission of transfer or conveyance of
any asset, right or claim that, had the parties hereto given specific
consideration to such asset, right or claim as of the date hereof, would
have otherwise been classified as a Company Asset. No asset, right or
claim shall be deemed a Company Asset solely as a result of this clause
(xii) if such asset, right or claim is within the category or type of
asset, right or claim expressly covered by the subject matter of an
Ancillary Agreement. In addition, no asset, right or claim shall be deemed
a Company Asset solely as a result of this clause (xii) unless a claim with
respect thereto is made by the Company on or prior to the [first]
anniversary of the Closing Date.
Notwithstanding the foregoing, the Company Assets shall not in any event
include the Excluded Assets referred to in Section 2.1(b) below.
(b) For the purposes of this Agreement, "Excluded Assets" shall mean: (i)
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the assets, rights and claims listed or described on Schedule 2.1(b)(i); and
(ii) any and all assets, rights and claims that are expressly contemplated by
this Agreement or any Ancillary Agreement (or the Exhibits and Schedules hereto
or thereto) as assets, rights or claim to be retained by Silicon Graphics.
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Section 2.2. Assignment and Assumption of Liabilities. (a) Except as set
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forth in one or more of the Ancillary Agreements, from and after the Closing
Date, the Company hereby assumes and agrees faithfully to pay, perform and
fulfill all obligations under the following in accordance with their respective
terms (the "Company Liabilities"):
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(i) any and all Liabilities that are expressly contemplated by this
Agreement or any Ancillary Agreement (or the Schedules hereto or thereto)
as Liabilities to be assumed by the Company, and all agreements,
obligations and Liabilities of the Company under this Agreement or any of
the Ancillary Agreements;
(ii) all Liabilities (other than Taxes based on, or measured by
reference to, net income), including any employee-related Liabilities,
primarily relating to, arising out of or resulting from:
(A) the operation of the Company Business, as conducted at any
time prior to, on or after the Closing Date (including any Liability
relating to, arising out of or resulting from any act or failure to
act by any director, officer, employee, agent or representative
(whether or not such act or failure to act is or was within such
Person's authority));
(B) the operation of any business conducted by the Company or any
of its subsidiaries at any time after the Closing Date (including any
Liability relating to, arising out of or resulting from any act or
failure to act by any director, officer, employee, agent or
representative (whether or not such act or failure to act is or was
within such Person's authority)); and
(C) any Company Assets; and
(iii) all Liabilities reflected as "Liabilities" or obligations of the
Company in the Company Balance Sheet, subject to any discharge of such
Liabilities subsequent to the date of the Company Balance Sheet.
Notwithstanding the foregoing, the Company Liabilities shall not in any
event include the Excluded Liabilities referred to in Section 2.2(b) below.
(b) For the purposes of this Agreement, "Excluded Liabilities" shall mean
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(i) the Liabilities listed or described on Schedule 2.2(b)(i); (ii) any and all
Liabilities that are expressly contemplated by this Agreement or any Ancillary
Agreement (or Schedules hereto or thereto) as Liabilities to be retained or
assumed by Silicon Graphics or any member of the SGI Group; and (iii) all
agreements and obligations of any member of the SGI Group under this Agreement
or any of the Ancillary Agreements.
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(c) The Company shall be responsible for all Company Liabilities,
regardless of when or where such Liabilities arose or arise, or whether the
facts on which they are based occurred prior to or subsequent to the date
hereof, regardless of where or against whom such Liabilities are asserted or
determined (including any Company Liabilities arising out of claims made by
Silicon Graphics' or the Company's respective directors, officers, employees,
agents or Affiliates) or whether asserted or determined prior to the date
hereof, and regardless of whether arising from or alleged to arise from
negligence, recklessness, violation of law, fraud or misrepresentation by
Silicon Graphics or the Company or any of their respective directors, officers,
employees, agents or Affiliates.
Section 2.3. Transfers Not Effected On or Prior to the Closing Date. To
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the extent any transfers contemplated by this Article II shall not have been
fully effected on or prior to the Closing Date, Silicon Graphics and the Company
shall cooperate to effect such transfers as promptly as possible following the
Closing Date. Nothing herein shall be deemed to require the transfer of any
assets or the assignment or assumption of any Liabilities that by their terms or
by operation of law cannot be so transferred, assigned or assumed; provided,
however, that any such asset shall be deemed a Company Asset for purposes of
determining whether any Liability is a Company Liability; and provided, further,
that Silicon Graphics and the Company and their respective Affiliates shall
cooperate in seeking to obtain any necessary Consents for the transfer of all
assets and the assignment or assumption of all Liabilities as contemplated by
this Article II. In the event that any transfer of assets or assignment or
assumption of Liabilities contemplated by this Article II has not been
consummated effective as of the Closing Date, (i) the party retaining such
assets shall thereafter hold such assets in trust for the use and benefit of the
party entitled thereto (at the expense of the party entitled thereto); and (ii)
the party retaining such Liabilities shall thereafter hold such Liabilities for
the account of the party assuming such Liability or to whom such Liability is to
be assigned pursuant hereto, and in each such case shall take such other actions
as may be reasonably required in order to place the parties, insofar as
reasonably possible, in the same position as would have existed had such asset
been transferred, or such Liability been assigned or assumed as contemplated
hereby. As and when any such asset or Liability becomes transferable,
assignable or assumable, as the case may be, such transfer, assignment or
assumption, as the case may be, shall be effected forthwith. Silicon Graphics
and the Company agree that, as of the Closing Date, each party hereto shall be
deemed to have acquired complete and sole beneficial ownership over all of the
assets, together with all of the rights, powers and privileges incidental
thereto, that such party is entitled to acquire pursuant to the terms of this
Agreement.
Section 2.4. No Representations or Warranties; Consents. (a) Each of the
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parties hereto understands and agrees that no party hereto is, in this
Agreement, any Ancillary Agreement or any other agreement or document
contemplated by this Agreement, any Ancillary Agreement or otherwise,
representing or warranting in any way as to the value or freedom from
encumbrance of, or any other matter concerning, any assets of such party, or as
to the legal sufficiency to convey title to an asset transferred pursuant to
this Agreement or any Ancillary Agreement, including, without limitation, any
conveyancing or assumption instruments. It is also agreed and
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understood that there are no warranties whatsoever, express or implied, given by
either party to this Agreement, as to the condition, quality, merchantability or
fitness of any of the assets, businesses or other rights transferred or retained
by the parties, as the case may be, and all such assets, businesses and other
rights shall be "as is, where is" and "with all faults" (provided that the
absence of warranties given by the parties shall not negate the allocation of
Liabilities under this Agreement and shall have no effect on any manufacturers,
sellers, or other third party warranties that are intended to be transferred
with such assets), and the Company shall bear the economic and legal risks that
any conveyance shall prove to be insufficient to vest in it good and marketable
title, free and clear of any security interest, pledge, lien, charge, claim,
option, right to acquire, covenant, condition, restriction on transfer or other
encumbrance of any nature whatsoever.
(b) Each party hereto understands and agrees that no party hereto is, in
this Agreement, any Ancillary Agreement or any other agreement or document
contemplated by this Agreement, any Ancillary Agreement or otherwise,
representing or warranting in any way that the obtaining of any Consents, the
execution and delivery of any amendatory agreements and the taking of any
filings or applications contemplated by this Agreement will satisfy the
provisions of any or all applicable laws or judgments or other instruments or
agreements relating to such assets.
Notwithstanding the foregoing, the parties shall use their good faith
efforts to obtain all Consents (including such Consents as may be required by
any Governmental Authority), to enter into all reasonable amendatory agreements
and to make all filings and applications contemplated by this Agreement, and
shall take all such further actions as shall be deemed reasonably necessary to
preserve for each of Silicon Graphics and the Company, to the greatest extent
reasonably feasible, consistent with this Agreement, the economic and
operational benefits of the allocation of assets and liabilities provided for in
this Agreement. In case at any time after the Closing Date any further action
is necessary or desirable to carry out the purposes of this Agreement, the
proper officers and directors of each party to this Agreement shall take all
such necessary or desirable action, provided that any financial cost shall be
borne by the party receiving the benefit of the action.
Section 2.5. Documents Relating to Transfer of Assets and Assignment and
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Assumption of Liabilities. In connection with the transfer or the Company
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Assets pursuant to Section 2.1 of this Agreement and the assignment and
assumption of the Company Liabilities pursuant to Section 2.2 of this Agreement,
simultaneously with the execution and delivery hereof or as promptly as
practicable thereafter, (i) Silicon Graphics shall execute and deliver such
bills of sale, deeds, stock powers, certificates of title, assignments of
contracts and other instruments or transfer, conveyance and assignment as and to
the extent necessary to evidence the transfer, conveyance and assignment of all
of Silicon Graphics' right, title and interest in and to the Company Assets to
the Company and (ii) the Company shall execute and deliver to Silicon Graphics
such bills of sale, certificates of title, assumptions of contracts and other
instruments or assumption as may be necessary to evidence the valid and
effective assumption of the Company Liabilities by the Company.
11
Section 2.6. Termination of Agreements. (a) Except as set forth in
-------------------------
Section 2.6(b), in furtherance of the releases and other provisions of Section
4.1 hereof, the Company, on the one hand, and Silicon Graphics, on the other
hand, hereby terminate, effective as of the Closing Date, any and all
agreements, arrangements, commitments or understandings, whether or not in
writing, between the Company and Silicon Graphics; provided, however, that to
the extent any such agreement, arrangement, commitment or understanding is
inconsistent with any Ancillary Agreement, such termination shall be effective
as of the date of the effectiveness of the applicable Ancillary Agreement. No
such terminated agreement, arrangement, commitment or understanding (including
any provision thereof which purports to survive termination) shall be of any
further force or effect after the Closing Date (or, to the extent contemplated
by the proviso to the immediately preceding sentence, after the effective date
of the applicable Ancillary Agreement). Each party shall, at the reasonable
request of the other party, take, or cause to be taken, such other actions as
may be necessary to effect the foregoing.
(b) The provisions of Section 2.6(a) shall not apply to any of the
following agreements, arrangements, commitments or understandings (or any of the
provisions thereof): (i) this Agreement and the Ancillary Agreements (and each
other agreement or instrument expressly contemplated by this Agreement or any
Ancillary Agreement), (ii) any agreements, arrangements, commitments or
understandings to which any Person other than the parties hereto or their
respective Affiliates is a party, (iii) any intercompany accounts payable or
accounts receivable accrued as of the Closing Date that are reflected in the
books and records of the parties or otherwise documented in writing in
accordance with past practices, and (iv) any other agreements, arrangements,
commitments or understandings that this Agreement or any Ancillary Agreement
expressly contemplates will survive the Closing Date, including those listed or
described on Schedule 2.6(b).
ARTICLE III
THE SEPARATION AND THE INITIAL PUBLIC OFFERING
Section 3.1. Cooperation Prior to the Separation. (a) Transactions prior
-----------------------------------
to the Initial Public Offering. (i) Subject to the conditions specified in
Section 3.3, Silicon Graphics and the Company shall use their reasonable best
efforts to consummate the Initial Public Offering. Such actions shall include,
but not necessarily be limited to, those specified in this Section 3.1.
(ii) The Company shall file the Registration Statement, and such
amendments or supplements thereto, as may be necessary in order to cause
the same to become and remain effective as required by law or by the
Underwriters, including, but not limited to, filing such amendments to the
Registration Statement as may be required by the Underwriting Agreement,
the Commission or federal, state or foreign securities laws. Silicon
Graphics and the Company shall also cooperate in preparing, filing with the
Commission and causing to become effective a registration statement
registering the
12
Common Stock under the Exchange Act, and any registration statements or
amendments thereof which are required to reflect the establishment of, or
amendments to, any employee benefit and other plans necessary or
appropriate in connection with the Initial Public Offering and the
Separation or the other transactions contemplated by this Agreement and the
Ancillary Agreements.
(iii) The Company shall enter into the Underwriting Agreement, in form
and substance reasonably satisfactory to the Company and shall comply with
its obligations thereunder.
(iv) Silicon Graphics and the Company shall consult with each other
and the Underwriters regarding the timing, pricing and other material
matters with respect to the Initial Public Offering.
(v) The Company shall use its reasonable best efforts to take all such
action as may be necessary or appropriate under state securities and blue
sky laws of the United States (and any comparable laws under any foreign
jurisdictions) in connection with the Initial Public Offering.
(vi) The Company shall prepare, file and use reasonable best efforts
to seek to make effective, a listing application for quotation of the
Common Stock issued in the Initial Public Offering in the Nasdaq National
Market, subject to official notice of issuance.
(vii) The Company shall participate in the preparation of materials
and presentations as the Underwriters shall deem necessary or desirable.
(viii) The Company shall pay the costs and expenses set forth in
Section 8.2.
(b) Proceeds of the Initial Public Offering. The Initial Public Offering
will include both a primary offering of Common Stock by the Company and a
secondary offering of Common Stock by Silicon Graphics of its shares of Common
Stock. The Company will retain the net proceeds of the primary offering and
Silicon Graphics will retain the net proceeds of the secondary offering.
Section 3.2. Conduct of Company Business Pending Separation. Prior to
----------------------------------------------
the Separation Date, the Company Business shall be operated by Silicon Graphics
and its subsidiaries and the Company for the sole benefit of Silicon Graphics.
Section 3.3. Silicon Graphics Board Action; Conditions Precedent to the
----------------------------------------------------------
Separation. Silicon Graphics' Board of Directors shall, in its discretion,
----------
establish any appropriate procedures in connection with the Separation. In no
event shall the Separation occur unless the following conditions shall, unless
waived by Silicon Graphics in its sole discretion, have been satisfied:
13
(a) All necessary regulatory approvals and Consents shall have been
received;
(b) The Registration Statement shall have been filed and declared effective
by the Commission, and there shall be no stop-order in effect with respect
thereto;
[ (c) The [New Credit Facility] shall have been executed and delivered;]
(d) The actions and filings with regard to state securities and blue sky
laws of the United States (and any comparable laws under any foreign
jurisdictions) described in Section 3.1 shall have been taken and, where
applicable, have become effective or been accepted;
(e) The Company's Board of Directors, as named in the Registration
Statement, shall have been elected by Silicon Graphics, as sole stockholder of
the Company, and the Company Certificate and Company Bylaws shall be in effect;
(f) The Company and Silicon Graphics shall have entered into the
Underwriting Agreement and all conditions to the obligations of the Company and
the Underwriters shall have been satisfied or waived;
(g) The Common Stock shall have been approved for quotation in the Nasdaq
National Market, subject to official notice of issuance;
(h) Silicon Graphics' Board of Directors shall have formally approved the
Separation and shall not have abandoned, deferred or modified the Separation at
any time prior to the Closing Date;
(i) The transactions contemplated by Sections 2.1 and 2.2 and Article V
shall have been consummated in all material respects and each of the Ancillary
Agreements, in form and substance satisfactory to Silicon Graphics, shall have
been executed by the parties thereto and each of the transactions contemplated
by the Ancillary Agreements to be consummated on or prior to the Separation Date
shall have been consummated;
(j) No preliminary or permanent injunction or other order, decree or ruling
issued by a court of competent jurisdiction or by a government, regulatory or
administrative agency or commission, and no statute, rule, regulation or
executive order promulgated or enacted by any Governmental Authority, shall be
in effect preventing the consummation of the Separation or the Initial Public
Offering or any of the other transactions contemplated by this Agreement or any
Ancillary Agreement shall be in effect;
14
(k) Silicon Graphics shall have been released from any liabilities,
guarantees or other obligations with respect to any indebtedness or otherwise of
the Company or its subsidiaries; provided, that the satisfaction of such
conditions shall not create any obligation on the part of Silicon Graphics to
effect the Separation or in any way limit Silicon Graphics' power of termination
set forth in Section 8.1 or alter the consequences of any such termination from
those specified in such Section;
(l) Silicon Graphics shall be satisfied in its sole discretion that it will
own at least 80.1% of the outstanding Common Stock following the Initial Public
Offering on a fully diluted basis, after giving effect to the issuance of any
shares of restricted stock or employee stock options to any employees and
consultants of the Company, and all other conditions to permit any subsequent
distribution of the Common Stock to Silicon Graphics' shareholders to qualify as
a tax-free distribution to Silicon Graphics, the Company and Silicon Graphics'
shareholders shall, to the extent applicable as of the time of the Initial
Public Offering, be satisfied and there shall be no event or condition that is
likely to cause any of such conditions not to be satisfied as of the time of the
Separation or thereafter;
(m) Such other actions as the parties hereto may, based upon the advice of
counsel, reasonably request to be taken prior to the Separation and the Initial
Public Offering in order to assure the successful completion of the Separation
and the Initial Public Offering and the other transactions contemplated by this
Agreement shall have been taken; and
(n) This Agreement shall not have been terminated.
ARTICLE IV
INDEMNIFICATION
Section 4.1. Release of Claims. (a) Except as provided in Section
-----------------
4.1(c), effective as of the Closing Date, the Company does hereby, for itself
and its Affiliates (other than any member of the SGI Group), successors and
assigns, and all Persons who at any time prior to the Closing Date have been
shareholders, directors, officers, agents or employees of the Company and its
Affiliates (other than any member of the SGI Group) (in each case, in their
respective capacities as such), remise, release and forever discharge Silicon
Graphics and each member of the SGI Group, their respective successors and
assigns, and all Persons who at any time prior to the Closing Date have been
shareholders, directors, officers, agents or employees of Silicon Graphics or
any member of the SGI Group (in each case, in their respective capacities as
such), and their respective heirs, executors, administrators, successors and
assigns, from any and all Liabilities whatsoever, whether at law or in equity
(including any right of contribution), whether arising under any contract or
agreement, by operation of law or otherwise, existing or arising from any facts
or events occurring or failing to occur or alleged to have occurred or to have
failed to occur or any conditions existing or alleged to have existed on or
before the Closing Date, including in connection with the transactions and all
other activities to implement the Separation and the Initial Public Offering.
15
(b) Except as provided in Section 4.1(c), effective as of the Closing Date,
Silicon Graphics does hereby, for itself and each member of the SGI Group,
successors and assigns, and all Persons who at any time prior to the Closing
Date have been shareholders, directors, officers, agents or employees of Silicon
Graphics or any member of the SGI Group (in each case, in their respective
capacities as such), remise, release and forever discharge the Company and its
subsidiaries, their respective successors and assigns, and all Persons who at
any time prior to the Closing Date have been shareholders, directors, officers,
agents or employees of the Company or any of its subsidiaries (in each case, in
their respective capacities as such), and their respective heirs, executors,
administrators, successors and assigns, from any and all Liabilities whatsoever,
whether at law or in equity (including any right of contribution), whether
arising under any contract or agreement, by operation of law or otherwise,
existing or arising from any facts or events occurring or failing to occur or
alleged to have occurred or to have failed to occur or any conditions existing
or alleged to have existed on or before the Closing Date, including in
connection with the transactions and all other activities to implement the
Separation and the Initial Public Offering.
(c) Nothing contained in Section 4.1(a) or (b) shall impair any right of
any Person to enforce this Agreement, any Ancillary Agreement or any agreements,
arrangements, commitments or understandings that are specified in Section 2.6(b)
or the applicable Schedules thereto not to terminate as of the Closing Date, in
each case in accordance with its terms. Nothing contained in Section 4.1(a) and
(b) shall release any Person from:
(i) Any Liability provided in or resulting from any agreement between
the Company and any member of the SGI Group that is specified in Section
2.6(b) or the applicable Schedules thereto as not to terminate as of the
Closing Date, or any other Liability specified in Schedule 2.6(b) as not to
terminate as of the Closing Date;
(ii) Any Liability, contingent or otherwise, assumed, transferred or
assigned to such Person in accordance with, or any other Liability of any
Person under, this Agreement or any Ancillary Agreement;
(iii) Any Liability for the sale, lease or receipt of goods, property
or services purchased, obtained or used in the ordinary course of business
by the Company from any member of the SGI Group or by any member of the SGI
Group from the Company;
(iv) Any Liability that the parties may have with respect to
indemnification or contribution pursuant to this Agreement for claims
brought against the parties by third Persons, which Liability shall be
governed by the provisions of this Article IV and, if applicable, the
appropriate provisions of the Ancillary Agreements; or
16
(v) Any Liability the release of which would result in the release of
any Person other than a Person released pursuant to this Section 4.1;
provided that the parties agree not to bring suit or permit any of their
subsidiaries to bring suit against any Person with respect to any Liability
to the extent that such Person would be released with respect to such
Liability by this Section 4.1 but for the provision of this clause (v).
(d) The Company shall not make, and shall not permit any of its
subsidiaries to make, any claim or demand or commence any Action asserting any
claim or demand, including any claim of contribution or indemnification, against
Silicon Graphics or any member of the SGI Group or any other Person released
pursuant to Section 4.1(a), with respect to any Liabilities released pursuant to
Section 4.1(a). Silicon Graphics shall not make, and shall not permit any
member of the SGI Group to make, any claim or demand or commence any Action
asserting any claim or demand, including any claim of contribution or
indemnification, against the Company or any of its subsidiaries or any other
Person released pursuant to Section 4.1(b), with respect to any Liabilities
released pursuant to Section 4.1(b).
(e) It is the intention of each of Silicon Graphics and the Company by
virtue of the provisions of this Section 4.1 to provide for a full and complete
release and discharge of all Liabilities existing or arising from all acts and
events occurring or failing to occur or alleged to have occurred or failed to
occur and all conditions existing or alleged to have existed on or before the
Closing Date, between or among the Company or any of its subsidiaries, on the
one hand, and Silicon Graphics or any member of the SGI Group, on the other hand
(including any contractual agreements or arrangements existing or alleged to
exist between or among such Persons on or before the Closing Date), except as
expressly set forth in Section 4.1(c). At any time, at the request of any other
party, each party shall execute and deliver, or shall cause such other
appropriate Persons to execute and deliver, releases reflecting the provisions
hereof.
Section 4.2. Indemnification by the Company. Except as provided in
------------------------------
Section 4.5 and except as otherwise expressly provided in any of the Ancillary
Agreements, from and after the Closing Date, the Company shall indemnify, defend
and hold harmless Silicon Graphics, each member of the SGI Group and each of
their respective directors, officers and employees and each of the heirs,
executors, successors and assigns of any of the foregoing (collectively, the
"SGI Indemnitees") from and against any and all Liabilities of the SGI
-----------------
Indemnitees relating to, arising out of or resulting from any of the following
items (without duplication):
(a) The failure of the Company or any other Person to pay, perform or
otherwise promptly discharge any Company Liability or Company Contract in
accordance with their respective terms, whether prior to or after the Closing
Date or the date hereof;
(b) The Company Business, any Company Liability or any Company Contract;
(c) Any breach by the Company or any of its subsidiaries of this Agreement
or any of the Ancillary Agreements; and
17
(d) Any untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, with respect
to all information contained in the Registration Statement or Prospectus.
Section 4.3. Indemnification by Silicon Graphics. Except as provided in
-----------------------------------
Section 4.5 and except as otherwise expressly provided in any of the Ancillary
Agreements, from and after the Closing Date, Silicon Graphics shall indemnify,
defend and hold harmless the Company and each of its subsidiaries and each of
their respective directors, officers and employees and each of the heirs,
executors, successors and assigns of any of the foregoing (collectively, the
"Company Indemnitees") from and against any and all Liabilities of the Company
--------------------
Indemnitees relating to, arising out of or resulting from any of the following
items (without duplication):
(a) The failure of Silicon Graphics or any other member of the SGI Group or
any other Person to pay, perform or otherwise promptly discharge any Liability
of the SGI Group other than the Company Liabilities in accordance with its
terms, whether prior to or after the Closing Date or the date hereof;
(b) Any Liability of any member of the SGI Group other than the Company
Liabilities; and
(c) Any breach by Silicon Graphics or any member of the SGI Group of this
Agreement or any of the Ancillary Agreements.
Section 4.4. Notice and Payment of Claims. If any SGI Indemnitee or
----------------------------
Company Indemnitee (the "Indemnified Party") determines that it is or may be
-----------------
entitled to indemnification under this Article IV (other than in connection with
any Action subject to Section 4.5), the Indemnified Party shall deliver to the
person from whom such indemnification is sought (the "Indemnifying Party"), a
------------------
written notice specifying, to the extent reasonably practicable, the basis for
its claim for indemnification and the amount for which the Indemnified Party
reasonably believes it is entitled to be indemnified. After the Indemnifying
Party shall have been notified of the amount for which the Indemnified Party
seeks indemnification, the Indemnifying Party shall, within 30 days after
receipt of such notice, either (i) pay the Indemnified Party such amount in cash
or other immediately available funds (or reach agreement with the Indemnified
Party as to a mutually agreeable alternative payment schedule) or (ii) object to
the claim for indemnification or the amount thereof by giving the Indemnified
Party written notice setting forth the grounds therefor. Any objection shall be
resolved in accordance with Article VII. If the Indemnifying Party does not
give such notice within such 30 day period, the Indemnifying Party shall be
deemed to have acknowledged its liability for such claim and the Indemnified
Party may exercise any and all of its rights under applicable law to collect
such amount.
18
Section 4.5. Notice and Defense of Third-Party Claims. Promptly
----------------------------------------
following the earlier of (A) receipt of written notice of the commencement by a
third party of any Action against or otherwise involving any Indemnified Party
or (B) receipt of written information from a third party alleging the existence
of a claim against an Indemnified Party, in either case, with respect to which
indemnification may be sought pursuant to this Agreement (a "Third-Party
-----------
Claim"), the Indemnified Party shall give the Indemnifying Party prompt written
notice thereof. Failure of the Indemnified Party to give notice as provided in
this Section 4.5 shall not relieve the Indemnifying Party of its obligations
under this Agreement, except to the extent that the Indemnifying Party is
prejudiced by such failure to give notice. Such notice shall describe the
Third-Party Claim in reasonable detail.
(a) Within 30 days after receipt of such notice, the Indemnifying Party may
by giving written notice thereof to the Indemnified Party, (i) elect to assume
the defense of such Third-Party Claim at its sole cost and expense or (ii)
object to the claim of indemnification for such Third-Party Claim setting forth
the grounds therefor. Any objection shall be resolved in accordance with
Article VII. If the Indemnifying Party does not within such 30 day period give
the Indemnified Party such notice, the Indemnifying Party shall be deemed to
have acknowledged its liability for such Third-Party Claim.
(b) Any defense of a Third-Party Claim as to which the Indemnifying Party
has elected to assume the defense shall be conducted by counsel employed by the
Indemnifying Party and reasonably satisfactory to Silicon Graphics in the case
of SGI Indemnitees and the Company in the case of Company Indemnitees. The
Indemnified Party shall have the right to participate in such proceedings and to
be represented by counsel of its own choosing at the Indemnified Party's sole
cost and expense; provided that if the defendants or parties against which
relief is sought in any such claim include both the Indemnifying Party and one
or more Indemnified Parties and, in the reasonable judgment of Silicon Graphics
in the case of SGI Indemnitees and the Company in the case of Company
Indemnitees, a conflict of interest between such Indemnified Parties and such
Indemnifying Party exists in respect of such claim, such Indemnified Parties
shall have the right to employ one firm of counsel selected by Silicon Graphics
for SGI Indemnitees or the Company for Company Indemnitees and in that event the
reasonable fees and expenses of such separate counsel (but not more than one
separate counsel reasonably satisfactory to the Indemnifying Party) shall be
paid by such Indemnifying Party.
(c) If the Indemnifying Party assumes the defense of a Third-Party Claim,
the Indemnifying Party may settle or compromise the claim without the prior
written consent of the Indemnified Party; provided that without the prior
written consent of Silicon Graphics in the case of SGI Indemnitees and the
Company in the case of Company Indemnitees, the Indemnifying Party may not agree
to any such settlement unless as a condition to such settlement the Indemnified
Party receives a written release from any and all liability relating to such
Third-Party Claim and such settlement or compromise does not include any remedy
or relief to be applied to or against the Indemnified Party, other than monetary
damages for which the Indemnifying Party shall be responsible hereunder.
19
(d) If the Indemnifying Party does not assume the defense of a Third-Party
Claim for which it has acknowledged liability for indemnification under this
Article IV, Silicon Graphics in the case of SGI Indemnitees and the Company in
the case of Company Indemnitees may pursue the defense of such Third-Party Claim
and choose one firm of counsel in connection therewith. The Indemnifying Party
is required to reimburse Silicon Graphics or the Company, as the case may be, on
a current basis for its reasonable expenses of investigation, reasonable
attorney's fees and reasonable out-of-pocket expenses incurred by Silicon
Graphics in the case of SGI Indemnitees and the Company in the case of Company
Indemnitees in defending against such Third-Party Claim and the Indemnifying
Party shall be bound by the result obtained with respect thereto, provided that
the Indemnifying Party shall not be liable for any settlement effected without
the consent of the Indemnifying Party, which consent shall not be unreasonably
withheld.
(e) The Indemnifying Party shall pay to the Indemnified Party in cash the
amount for which the Indemnified Party is entitled to be indemnified (if any) no
later than the later of (i) the date on which the Indemnified Party makes any
payment in satisfaction (partial or otherwise) of the Third-Party Claim or (ii)
the date on which such Indemnifying Party's objection, if any, to its
responsibility for indemnification under this Article IV has been resolved
pursuant to Article VII or by settlement or compromise or the final
nonappealable judgment of a court of competent jurisdiction.
Section 4.6. Insurance Proceeds. The amount that any Indemnifying
-------------------
Party is or may be required to pay to any Indemnified Party pursuant to this
Article IV shall be reduced (including, without limitation, retroactively) by
any insurance proceeds or other amounts actually recovered by or on behalf of
such Indemnified Parties in reduction of the related Liability. If an
Indemnified Party shall have received the payment required by this Agreement
from an Indemnifying Party in respect of a Liability and shall subsequently
actually receive insurance proceeds, or other amounts in respect of such
Liability as specified above, then such Indemnified Party shall pay to such
Indemnifying Party a sum equal to the amount of such insurance proceeds or other
amounts actually received after deducting therefrom all of the Indemnifying
Party's costs and expenses associated with such Liability.
Section 4.7. Contribution. If the indemnification provided for in this
------------
Article IV is unavailable to an Indemnified Party in respect of any Liability
arising out of or related to information contained in or omitted from the
Registration Statement, then the Company Indemnitees, or SGI Indemnitees, as the
case may be, in lieu of indemnifying the SGI Indemnitees or Company Indemnitees,
as the case may be, shall contribute to the amount paid or payable by the SGI
Indemnitees or SGI Indemnitees, as the case may be, as a result of such
Liability in such proportion as is appropriate to reflect the relative fault of
the Company, on the one hand, and Silicon Graphics, on the other hand, in
connection with the statements or omissions which resulted in such Liability.
The relative fault of the Company Indemnitees on the one hand and of the SGI
Indemnitees on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
20
omission or alleged omission to state a material fact relates to information
concerning the Company on the one hand or Silicon Graphics on the other hand.
Section 4.8. Subrogation. In the event of payment by an Indemnifying
-----------
Party to any Indemnified Party in connection with any Third-Party Claim, such
Indemnifying Party shall be subrogated to and shall stand in the first place of
such Indemnified Party as to any events or circumstances in respect of which
such Indemnified Party may have any right or claim relating to such Third-Party
Claim. Such Indemnified Party shall cooperate with such Indemnifying Party in a
reasonable manner, and at the cost and expense of such Indemnifying Party, in
prosecuting any subrogated right or claim.
Section 4.9. No Third-Party Beneficiaries. This Article IV shall inure
----------------------------
to the benefit of, and be enforceable by Silicon Graphics, the SGI Indemnitees,
the Company and the Company Indemnitees and their respective successors and
permitted assigns. The indemnification provided for by this Article IV shall
not inure to the benefit of any other third party or parties and shall not
relieve any insurer who would otherwise be obligated to pay any claim of the
responsibility with respect thereto or, solely by virtue of the indemnification
provisions hereof, provide any subrogation rights with respect thereto and each
party agrees to waive such rights against the other to the fullest extent
permitted.
1. Section 4.10. Remedies Cumulative. The remedies provided in this Article
-------------------
IV shall be cumulative and shall not preclude assertion by any Indemnified
Party of any other rights or the seeking of any and all other remedies
against an Indemnifying Party. The procedures set forth in this Article
IV, however, shall be the exclusive procedures governing any indemnity
action brought under this Article IV or otherwise relating to Liabilities.
Section 4.11. Survival of Indemnities. The rights and obligations of
-----------------------
each of Silicon Graphics and the Company and their respective Indemnitees under
this Article IV shall survive the sale or other transfer by it of any assets or
businesses or the assignment by it of any Liabilities.
Section 4.12. After-Tax Indemnification Payments. Except as otherwise
----------------------------------
expressly provided herein or in an Ancillary Agreement, indemnification payments
made by either party under this Article shall give effect to, and be reduced by
the value of, any and all applicable deductions, losses, credits, offsets or
other items for Federal, state or other tax purposes attributable to the payment
of the indemnified liability by the Indemnified Party.
21
ARTICLE V
CERTAIN ADDITIONAL MATTERS
Section 5.1. Ancillary Agreements. On or prior to the Closing Date,
--------------------
Silicon Graphics and the Company shall execute and deliver the Ancillary
Agreements.
Section 5.2. Company Officers and Board of Directors. On or prior to the
---------------------------------------
Closing Date, Silicon Graphics shall take and shall cause the Company to take
all actions necessary to appoint as officers and directors of the Company those
persons named in the Registration Statement to constitute the officers and
directors of the Company on the Closing Date.
Section 5.3. The Company Certificate of Incorporation and Bylaws. Prior
---------------------------------------------------
to the Closing Date, Silicon Graphics shall take all action necessary to cause
the Company Certificate and Company Bylaws to be amended and restated
substantially in the form attached to the Registration Statement as exhibits
thereto.
[Section 5.4. New Credit Facility.
--------------------
(a) Prior to the Closing Date, Silicon Graphics and the Company shall take
all necessary action to obtain the [the New Credit Facility.]]
(b) Prior to the Separation Date, the Company and its subsidiaries shall
take all necessary action to release Silicon Graphics from any liabilities,
guarantees, or other obligations with respect to indebtedness or other
obligations of the Company or its subsidiaries, other than the obligations
hereunder or under the Ancillary Agreements, provided, that the satisfaction of
such conditions shall not create any obligation on the part of Silicon Graphics
to effect the Separation or in any way limit Silicon Graphics' power of
termination set forth in Section 8.1 or alter the consequences of any such
termination from those specified in such Section.
Section 5.5. Insurance Policies and Claims Administration. (a)
--------------------------------------------
Maintenance of Insurance Coverage Prior to Closing Date. Silicon Graphics and
the Company shall use reasonable efforts to maintain in full force and effect at
all times up to and including the Closing Date its current property and casualty
insurance programs, including, without limitation, primary and excess general
liability, automobile, workers' compensation, property and crime insurance
policies (collectively, the "Policies" and individually, a "Policy"). Silicon
-------- ------
Graphics and its subsidiaries shall retain with respect to any Covered Claims as
set forth on Schedule 5.5(a) relating to periods prior to the Closing Date all
of their respective rights, benefits and privileges, if any, under such
Policies. To the extent not already provided for by the terms of a Policy,
Silicon Graphics shall use reasonable efforts to cause the Company and its
subsidiaries, as appropriate, to be named as additional insureds under such
Policy in respect of Covered Claims arising or relating to periods prior to the
Closing Date; provided, however, that nothing contained herein shall be
construed to require Silicon
22
Graphics or any of its subsidiaries to pay any additional premium or other
charges in respect to, or waive or otherwise limit any of its rights, benefits
or privileges under, any such Policy to effect the naming of the Company and its
subsidiaries as such additional insureds.
(b) Company Responsible for Establishing Insurance Coverage On and After
Closing Date. Commencing on and as of the Closing Date, the Company and each of
its subsidiaries shall be responsible for establishing and maintaining its own
separate insurance programs (including, without limitation, primary and excess
general liability, automobile, workers, compensation, property, director and
officer liability, fire, crime, surety and other similar insurance policies) for
activities and claims relating to any period on or after the Closing Date
involving the Company or any of its subsidiaries. Notwithstanding any other
agreement or understanding to the contrary, except as set forth in Section
5.5(c) with respect to claims administration and financial administration of the
Policies, neither Silicon Graphics nor any of its subsidiaries shall have any
responsibility for or obligation to the Company or its subsidiaries relating to
liability and casualty insurance matters for any period, whether prior to, at or
after the Closing Date.
(c) Administration and Procedure. (i) The Company or a subsidiary of the
Company, as appropriate, shall be responsible for the claims administration and
financial administration of all Policies for Covered Claims relating to the
assets, ownership or operation prior to the Closing Date of the Company
Business; provided, however, that such retention by the Company of the Policies
and the responsibility for claims administration and financial administration of
the Policies are in no way intended to limit, inhibit or preclude any right to
insurance coverage for any Covered Claims under the Policies by Silicon
Graphics. The Company or a subsidiary thereof, as appropriate, shall be
responsible for all administrative and financial matters relating to insurance
policies established and maintained by the Company and its subsidiaries for
claims relating to any period on or after the Closing Date involving the Company
or any of its subsidiaries.
(ii) The Company shall notify Silicon Graphics of any Covered Claim
relating to the Company or a subsidiary thereof under one or more of the
Policies relating to a period prior to the Closing Date, and the Company
agrees to cooperate and coordinate with Silicon Graphics concerning any
strategy Silicon Graphics may reasonably elect to pursue to secure coverage
and payment for such Covered Claim by the appropriate insurance carrier.
Notwithstanding anything contained herein, in any other agreement or
applicable Policy or any understanding to the contrary, the Company or an
appropriate subsidiary thereof assumes responsibility for, and shall pay to
the appropriate insurance carriers or otherwise, any premiums,
retrospectively-rated premiums, defense costs, indemnity payments,
deductibles, retentions or other charges, as appropriate (collectively,
"Insurance Charges"), whenever arising, which shall become due and payable
------------------
under the terms and conditions of any applicable Policy in respect of any
liabilities, losses, claims, actions or occurrences, whenever arising or
becoming known, involving or relating to any of the assets, businesses,
operations or
23
liabilities of the Company or any of its subsidiaries, to the extent set
forth in Section 5.5(a) and any such charges that relate to the period
after the Closing Date. To the extent that the terms of any applicable
Policy provide that Silicon Graphics or a subsidiary thereof, as
appropriate, shall have an obligation to pay or guarantee the payment of
any Insurance Charges, Silicon Graphics or such subsidiary shall be
entitled to demand that the Company or a subsidiary thereof make such
payment directly to the person or entity entitled thereto. In connection
with any such demand, Silicon Graphics shall submit to the Company or a
subsidiary thereof a copy of any invoice received by Silicon Graphics or a
subsidiary pertaining to such Insurance Charges, together with appropriate
supporting documentation, if available. In the event that the Company or
its subsidiary fails to pay any Insurance Charges when due and payable,
whether at the request of the party entitled to payment or upon demand by
Silicon Graphics or a subsidiary of Silicon Graphics, Silicon Graphics or a
subsidiary of Silicon Graphics may (but shall not be required to) pay such
Insurance Charges for and on behalf of the Company or its subsidiary and,
thereafter, the Company or its subsidiary shall forthwith reimburse Silicon
Graphics or such subsidiary of Silicon Graphics for such payment.
ARTICLE VI
ACCESS TO INFORMATION
Section 6.1. Provision of Corporate Records. Each of Silicon Graphics
------------------------------
and the Company shall arrange as soon as practicable following the Closing Date
for the provision to the other of existing corporate governance documents (e.g.
minute books, stock registers, stock certificates, documents of title, etc.) in
its possession relating to the other or to its business and affairs.
Section 6.2. Access to Information. From and after the Closing Date,
----------------------
each of Silicon Graphics and the Company shall afford the other, including its
accountants, counsel and other designated representatives, reasonable access
(including using reasonable efforts to give access to persons or firms
possessing information) and duplicating rights during normal business hours to
all records, books, contracts, instruments, computer data and other data and
information in such party's possession relating to the business and affairs of
the other (other than data and information subject to an attorney/client or
other privilege), insofar as such access is reasonably required by the other
party including, without limitation, for audit, accounting and litigation
purposes, as well as for purposes of fulfilling disclosure and reporting
obligations.
Section 6.3. Litigation Cooperation. Each of Silicon Graphics and the
----------------------
Company shall use reasonable efforts to make available to the other, upon
written request, its officers, directors, employees and agents as witnesses to
the extent that such persons may reasonably be
24
required in connection with any legal, administrative or other proceedings
arising out of the business of the other prior to the Closing Date in which the
requesting party may from time to time be involved.
Section 6.4. Reimbursement. Each party providing witnesses under Section
-------------
6.3 to the other shall be entitled to receive from the party for whom the
witness is provided, upon the presentation of invoices therefor, payment for all
out-of-pocket costs and expenses as may be reasonably incurred in providing such
witnesses.
Section 6.5. Retention of Records. Except as otherwise required by law
--------------------
or agreed to in writing, each party shall, and shall cause each of its
respective subsidiaries to, retain all information relating to the other party's
business in accordance with such party's written record retention policy or, if
no such policy exists, the past practice of such party. Notwithstanding the
foregoing, any party may destroy or otherwise dispose of any information at any
time, provided that, prior to such destruction or disposal, (i) such party shall
provide no less than 30 days prior written notice to the other party, specifying
the information proposed to be destroyed or disposed of and (ii) if the
recipient of such notice shall request in writing prior to the scheduled date
for such destruction or disposal that any of the information proposed to be
destroyed or disposed of be delivered to such requesting party, the party
proposing the destruction or disposal shall promptly arrange for the delivery of
such of the information as was requested at the expense of the requesting party.
Section 6.6. Confidentiality. Subject to Section 6.7, each party and
---------------
each of its subsidiaries shall hold and shall cause its respective directors,
officers, employees, agents, consultants and advisors to hold, in strict
confidence, unless compelled to disclose by judicial or administrative process
or, in the opinion of its counsel, by other requirements of law, all information
(other than any such information relating solely to the business or affairs of
such party) concerning the other party (except to the extent that such
information can be shown to have been (i) in the public domain through no fault
of such party, (ii) later lawfully acquired on a non-confidential basis from
other sources by the party to which it was furnished, (iii) independently
generated without reference to any proprietary or confidential information of
the other party, or (iv) information that may be disclosed pursuant to any
Ancillary Agreement). Neither party shall release or disclose any such
information to any other person, except its auditors, attorneys, financial
advisors, bankers and other consultants and advisors who shall be advised of and
agree to comply with the provisions of this Section 6.6; provided, that with
respect to the matters identified on Schedule 6.6 hereof, no information may be
disclosed by either party under any circumstance without the prior written
consent of the other party hereto.
Section 6.7. Protective Arrangements. In the event that any party hereto
-----------------------
(or any of its subsidiaries) either determines on the advice of its counsel that
it is required to disclose any information pursuant to applicable law or
receives any demand under lawful process or from any Governmental Authority to
disclose or provide information of any other party hereto (or
25
any of its subsidiaries) that is subject to the confidentiality provisions
hereof, such party shall notify the other party prior to disclosing or providing
such information and shall cooperate at the expense of the requesting party in
seeking any reasonable protective arrangements requested by such other party.
Subject to the foregoing, the Person that received such request may thereafter
disclose or provide information to the extent required by such law (as so
advised by counsel) or by lawful process or such Governmental Authority.
Section 6.8. Mail. After the Closing Date, each of Silicon Graphics and
----
the Company may receive mail, telegrams, packages and other communications
property belonging to the other. Accordingly, at all times after the Closing
Date, each of Silicon Graphics and the Company authorizes the other to receive
and open all mail, telegrams, packages and other communications received by it
and not unambiguously intended for the other party or any of the other party's
officers or directors specifically in their capacities as such, and to retain
the same to the extent that they relate to the business of the receiving party
or, to the extent that they do not relate to the business of the receiving party
and do relate to the business of the other party, or to the extent that they
relate to both businesses, the receiving party shall promptly contact the other
party by telephone for delivery instructions and such mail, telegrams, packages
or other communications (or, in case the same relate to both businesses, copies
thereof) shall promptly be forwarded to the other party in accordance with its
delivery instructions. The foregoing provisions of this Section 6.8 shall
constitute full authorization to the postal authorities, all telegraph and
courier companies and all other persons to make deliveries to Silicon Graphics
or the Company, as the case may be, addressed to either of them or to any of
their officers or directors specifically in their capacities as such. The
provisions of this Section 6.8 are not intended to and shall not be deemed to
constitute an authorization by either Silicon Graphics or the Company to permit
the other to accept service of process on its behalf, and neither party is or
shall be deemed to be the agent of the other for service of process purposes or
for any other purpose.
ARTICLE VII
DISPUTE RESOLUTION
Section 7.1. Agreement to Mediate. Except as otherwise specifically
--------------------
provided in any Ancillary Agreement, the procedures for discussion, negotiation
and mediation set forth in this Article VII shall apply to all disputes,
controversies or claims (whether sounding in contract, tort or otherwise) that
may arise out of or relate to, or arise under or in connection with this
Agreement or any Ancillary Agreement, or the transactions contemplated hereby or
thereby (including all actions taken in furtherance of the transactions
contemplated hereby or thereby on or prior to the date hereof), or the
commercial or economic relationship of the parties relating hereto or thereto,
between Silicon Graphics and its subsidiaries and the Company and its
subsidiaries.
26
Section 7.2. Escalation. It is the intent of the parties to use their
----------
respective reasonable best efforts to resolve expeditiously any dispute,
controversy or claim between or among them with respect to the matters covered
hereby that may arise from time to time on a mutually acceptable negotiated
basis. In furtherance of the foregoing, any party involved in a dispute,
controversy or claim may deliver a notice (an "Escalation Notice") demanding an
-----------------
in person meeting involving representatives of the parties at a senior level of
management of the parties (or if the parties agree, of the appropriate strategic
business unit or division within such entity). A copy of any such Escalation
Notice shall be given to the General Counsel, or like officer or official, of
each party involved in the dispute, controversy or claim (which copy shall state
that it is an Escalation Notice pursuant to this Agreement). Any agenda,
location or procedures for such discussions or negotiations between the parties
may be established by the parties from time to time; provided, however, that the
parties shall use their reasonable best efforts to meet within 30 days of the
Escalation Notice.
Section 7.3. Demand for Mediation. At any time after the first to occur
--------------------
of (i) the date of the meeting actually held pursuant to the applicable
Escalation Notice or (ii) 90 days after the delivery of an Escalation Notice (as
applicable, the "Mediation Demand Date"), any party involved in the dispute,
---------------------
controversy or claim (regardless of whether such party delivered the Escalation
Notice) may make a written demand (the "Mediation Demand Notice") that the
-----------------------
dispute be submitted to mediation. Any opinion expressed by the mediator shall
not be binding on the parties, nor shall any opinion expressed by the mediator
be admissible in any subsequent proceedings. The mediator may be chosen from a
list of mediators previously selected by the parties or by other agreement of
the parties. Costs of the mediation shall be borne equally by the parties
involved in the matter, except that each party shall be responsible for its own
attorney's fees and other costs and expenses. The site of the mediation shall
be Mountain View, California, unless otherwise agreed by the parties. No party
may assert that the failure to resolve any matter during any discussions or
negotiations, the course of conduct during the discussions or negotiations or
the failure to agree on a mutually acceptable time, agenda, location or
procedures for the meeting, in each case, as contemplated by Section 7.2, is a
prerequisite to a demand for meditation under Section 7.3.
Section 7.4. Certain Additional Matters. (a) Either party may apply to
--------------------------
any court having jurisdiction and seek injunctive relief so as to maintain the
status quo until such time as the mediation is concluded or the controversy is
otherwise resolved.
(b) Except as required by law, the parties shall hold, and shall cause
their respective officers, directors, employees, agents and other
representatives to hold, the existence, content and result of mediation in
confidence in accordance with the provisions of Article VI. Each of the parties
shall request that any mediator comply with such confidentiality requirement.
(c) Notwithstanding anything herein to the contrary, in the event that any
party determines in good faith that the amount in controversy in any dispute,
controversy or claim (or any series of related disputes, controversies or
claims) under this Agreement or any
27
Ancillary Agreement is, or is reasonably likely to be, in excess of $30 million,
the provisions of Section 7.3 shall not apply and any party may elect, in lieu
of mediation, to commence an Action with respect to such dispute, controversy or
claim (or such series of related disputes, controversies or claims) in any court
of competent jurisdiction.
Section 7.5. Continuity of Service and Performance. Unless otherwise
-------------------------------------
agreed in writing, the parties will continue to provide service and honor all
other commitments under this Agreement and each Ancillary Agreement during the
course of dispute resolution pursuant to the provisions of this Article VII with
respect to all matters not subject to such dispute, controversy or claim.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Termination. This Agreement may be terminated and the
-----------
Separation and/or the Initial Public Offering may be deferred, modified or
abandoned at any time prior to the Closing Date by and in the sole discretion of
the Board of Directors of Silicon Graphics without the approval of the Company.
In the event of such termination, no party hereto (or any of its respective
directors or officers) shall have any liability to any other party pursuant to
this Agreement.
Section 8.2. Expenses. (a) Except as specifically provided in this
--------
Agreement or in an Ancillary Agreement, all costs and expenses incurred in
connection with the interpretation, execution, delivery and implementation of
this Agreement and with the consummation of the transactions contemplated by
this Agreement shall be paid by the party incurring the expense. The
determination of who has incurred an expense shall be made by the Chief
Financial Officer of Silicon Graphics, which determination shall be binding and
final upon each of the parties hereto and not subject to further review.
(b) Underwriting commissions and discounts attributable to the shares of
Common Stock sold by each of the parties hereto in the Initial Public Offering
shall be paid by the party selling such share.
(c) It is understood and agreed that the Company and Silicon Graphics shall
pay the legal, filing, accounting, printing and other out-of-pocket expenditures
in connection with (i) the preparation, printing and filing of the Registration
Statement and (ii) sale of the shares of Common Stock in the Initial Public
Offering, including, without limitation, third party costs, fees and expenses
relating to the Initial Public Offering, all of the reimbursable expenses of the
Underwriters pursuant to the Underwriting Agreement, and all of the costs of
producing, printing, mailing and otherwise distributing the Prospectus, in the
same proportion as the number of shares of Common Stock sold by each of them in
the Initial Public Offering bears to
28
the total number of shares sold in the Initial Public Offering (in each case
exclusive of any over-allotment option of the Underwriters under the
Underwriting Agreement).
[(d) All expenses incurred in connection with obtaining the New Credit
Facility shall be paid by the Company.]
Section 8.3. Notices. All notices and communications under this
-------
Agreement shall be in writing and any communication or delivery hereunder shall
be deemed to have been duly given when received addressed as follows:
If to Silicon Graphics, to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Director, Corporate Legal Services
Telecopy Number:
If to the Company, to:
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telecopy Number:
Any party may, by written notice so delivered to the other party, change
the address to which delivery of any notice shall thereafter be made.
Section 8.4. Amendment and Waiver. This Agreement may not be altered or
--------------------
amended, nor may rights hereunder be waived, except by an instrument in writing
executed by the party or parties to be charged with such amendment or waiver.
No waiver of any terms, provision or condition of or failure to exercise or
delay in exercising any rights or remedies under this Agreement, in any one or
more instances shall be deemed to be, or construed as, a further or continuing
waiver of any such term, provision, condition, right or remedy or as a waiver of
any other term, provision or condition of this Agreement.
Section 8.5. Counterparts. This Agreement may be executed in one or more
------------
counterparts each of which shall be deemed an original instrument, but all of
which together shall constitute but one and the same Agreement.
Section 8.6. Governing Law; Jurisdiction; Forum. This Agreement shall be
----------------------------------
construed in accordance with, and governed by, the laws of the State of
California, without regard to the conflicts of law rules of such state. Each
party hereto expressly submits and consents in advance to the non-exclusive
jurisdiction of the State and Federal courts sitting in the City of
29
San Francisco, State of California, in any Action between the parties arising
under this Agreement or under any Ancillary Agreement, and hereby waives any
claim that any such state or federal court is an inconvenient or improper forum.
Section 8.7. Entire Agreement. This Agreement including the schedules
----------------
hereto, together with the Ancillary Agreements, constitute the entire
understanding of the parties hereto with respect to the subject matter hereof,
superseding all negotiations, prior discussions and prior agreements and
understandings relating to such subject matter. To the extent that the
provisions of this Agreement are inconsistent with the provisions of any
Ancillary Agreements, the provisions of such Ancillary Agreement shall prevail.
Section 8.8. Parties in Interest. Neither of the parties hereto may
-------------------
assign its rights or delegate any of its duties under this Agreement without the
prior written consent of each other party. This Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns. Nothing contained in this Agreement, express
or implied, is intended to confer any benefits, rights or remedies upon any
person or entity other than Silicon Graphics and the Company, and Silicon
Graphics Indemnitees and Company Indemnitees under Article IV hereof.
Section 8.9. Tax Sharing Agreement. Notwithstanding any other provision
---------------------
of this Agreement to the contrary, any and all matters relating to Taxes shall
be exclusively governed by the Tax Sharing Agreement.
Section 8.10. Further Assurances and Consents. In addition to the
-------------------------------
actions specifically provided for elsewhere in this Agreement, each of the
parties hereto will use its reasonable efforts to (i) execute and deliver such
further instruments and documents and take such other actions as any other party
may reasonably request in order to effectuate the purposes of this Agreement and
to carry out the terms hereof and (ii) take, or cause to be taken, all actions,
and to do, or cause to be done, all things, reasonably necessary, proper or
advisable under applicable laws, regulations and agreements or otherwise to
consummate and make effective the transactions contemplated by this Agreement,
including, without limitation, using its reasonable efforts to obtain any
Consents and to make any filings and applications necessary or desirable in
order to consummate the transactions contemplated by this Agreement; provided
that no party hereto shall be obligated to pay any consideration therefor
(except for filing fees and other similar charges) to any third party from whom
such Consents and amendments are requested or to take any action or omit to take
any action if the taking of or the omission to take such action would be
unreasonably burdensome to the party or its business.
Section 8.11. Exhibits and Schedules. The Exhibits and Schedules shall
----------------------
be construed with and as an integral part of this Agreement to the same extent
as if the same had been set forth verbatim herein.
30
Section 8.12. Legal Enforceability. Any provision of this Agreement
--------------------
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Without
prejudice to any rights or remedies otherwise available to any party hereto,
each party hereto acknowledges that damages would be an inadequate remedy for
any breach of the provisions of this Agreement and agrees that the obligations
of the parties hereunder shall be specifically enforceable.
Section 8.13. Titles and Headings. Titles and headings to Sections
-------------------
herein are inserted for convenience of reference only and are not intended to be
a part of or to affect the meaning or interpretation of this Agreement.
31
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement on the day and year first above written.
SILICON GRAPHICS, INC.
By:__________________
Name:
Title:
MIPS TECHNOLOGIES, INC.
By:____________________
Name:
Title:
32
SCHEDULE 1.1(a)
---------------
COMPANY CONTRACTS
-----------------
The detailed list of Company Contracts, including the appropriate
contracts with NEC Corporation, Toshiba Corporation, LSI Logic Corporation,
Philips Electronics N.V., Integrated Device Technology, NKK Corporation, Quantum
Effect Design, Inc. and Nintendo Co. Ltd., will be specifically agreed to by the
parties on or before the Closing Date.
SCHEDULE 2.1(a)(i)
------------------
TANGIBLE PERSONAL PROPERTY
--------------------------
The detailed list of Tangible Personal Property will be specifically
agreed to by the parties on or before the Closing Date.
SCHEDULE 2.1(a)(ii)
-------------------
INVENTORY
---------
The detailed list of Inventory will be specifically agreed to by the
parties on or before the Closing Date.
SCHEDULE 2.1(a)(iii)
--------------------
RECEIVABLES
-----------
The detailed list of Receivables will be specifically agreed to by the
parties on or before the Closing Date.
SCHEDULE 2.1(a)(iv)
-------------------
INTELLECTUAL PROPERTY AGREEMENTS
--------------------------------
Technology Agreement.
Trademark Agreement.
SCHEDULE 2.1(a)(ix)
-------------------
SALES AND PROMOTIONAL MATERIAL
------------------------------
The detailed list of Sales and Promotional Material will be specifically
agreed to by the parties on or before the Closing Date.
SCHEDULE 2.1(a)(x)
------------------
GOVERNMENTAL APPROVALS
----------------------
The detailed list of Government Approvals will be specifically agreed
to by the parties on or before the Closing Date.
SCHEDULE 2.1(b)(i)
------------------
EXCLUDED ASSETS
---------------
The detailed list of Excluded Assets will be specifically agreed to by
the parties on or before the Closing Date.
SCHEDULE 2.2(b)(i)
------------------
EXCLUDED LIABILITIES
--------------------
The detailed list of Excluded Liabilities will be specifically agreed to
by the parties on or before the Closing Date.
SCHEDULE 2.6(b)
---------------
AGREEMENTS NOT TO TERMINATE
---------------------------
The detailed list of agreements not to terminate will be specifically
agreed to by the parties on or before the Closing Date.
SCHEDULE 5.5(a)
---------------
COVERED CLAIMS
--------------
The detailed list of Covered Claims will be specifically agreed to by
the parties on or before the Closing Date.
SCHEDULE 6.6
------------
NON-DISCLOSURE CONFIDENTIAL INFORMATION
---------------------------------------
The detailed list of non-disclosure confidential information will be
agreed to by the parties on or before the Closing Date.