AGREEMENT AND PLAN OF MERGER by and among QUALCOMM INCORPORATED, SSW HOLDCO LP, SSW MERGER SUB CORP and VEONEER, INC. Dated as of October 4, 2021

			Page
ARTICLE I DEFINITIONS			2
	Section 1.1	Definitions	2
ARTICLE II THE MERGER			2
	Section 2.1	The Merger	2
	Section 2.2	The Closing	3
	Section 2.3	Effective Time	3
	Section 2.4	Certificate of Incorporation and Bylaws	4
	Section 2.5	Board of Directors	4
	Section 2.6	Officers	4
ARTICLE III EFFECT OF THE MERGER ON CAPITAL STOCK; EXCHANGE OF CERTIFICATES			4
	Section 3.1	Effect on Securities	4
	Section 3.2	Payment for Securities; Exchange of Certificates	5
	Section 3.3	Company Equity Awards	8
	Section 3.4	Lost Certificates	9
	Section 3.5	Dissenting Shares	9
	Section 3.6	Transfers; No Further Ownership Rights	10
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY			10
	Section 4.1	Organization and Qualification; Subsidiaries	10
	Section 4.2	Capitalization	11
	Section 4.3	Authority Relative to Agreement	13
	Section 4.4	No Conflict; Required Filings and Consents	14
	Section 4.5	Permits; Compliance With Laws	15
	Section 4.6	Company SEC Documents; Financial Statements	16
	Section 4.7	Information Supplied	16
	Section 4.8	Disclosure Controls and Procedures	17
	Section 4.9	Absence of Certain Changes or Events	17
	Section 4.10	No Undisclosed Liabilities	17
	Section 4.11	Litigation	17
	Section 4.12	Employee Benefit Plans	18
	Section 4.13	Labor Matters	20
	Section 4.14	Intellectual Property Rights	20
	Section 4.15	Taxes	23
	Section 4.16	Material Contracts	25
	Section 4.17	Real Property	28
	Section 4.18	Environmental	28

	Section 4.19	Key Company Customers; Key Company Suppliers	29
	Section 4.20	Quality and Safety of Products	30
	Section 4.21	Anti-Bribery; Export Controls and Sanctions	29
	Section 4.22	Brokers	31
	Section 4.23	Opinion of Financial Advisor	31
	Section 4.24	Insurance	32
	Section 4.25	Takeover Statutes	32
	Section 4.26	Termination of Magna Agreement	32
	Section 4.27	No Other Representations or Warranties	32

ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE ACQUIRING PARTIES AND MERGER SUB			32
	Section 5.1	Organization and Qualification	33
	Section 5.2	Authority Relative to Agreement	34
	Section 5.3	No Conflict; Required Filings and Consents	35
	Section 5.4	Litigation	35
	Section 5.5	Absence of Certain Agreements	35
	Section 5.6	Information Supplied	36
	Section 5.7	Sufficient Funds; Investment and Separation Matters Agreement	36
	Section 5.8	Capitalization of Merger Sub	37
	Section 5.9	Investment Intention	37
	Section 5.10	Brokers	37
	Section 5.11	Solvency	36
	Section 5.12	Share Ownership	37
	Section 5.13	WARN Act	38
	Section 5.14	Management Agreements	38
	Section 5.15	Acknowledgment of Disclaimer of Other Representations and Warranties	38
ARTICLE VI COVENANTS AND AGREEMENTS			39
	Section 6.1	Conduct of Business by the Company Pending the Merger	40
	Section 6.2	Preparation of the Proxy Statement; Stockholders’ Meeting	44
	Section 6.3	Appropriate Action; Consents; Filings	46
	Section 6.4	Access to Information; Confidentiality	48
	Section 6.5	Non-Solicitation; Competing Proposals; Intervening Event	50
	Section 6.6	Directors’ and Officers’ Indemnification and Insurance	54
	Section 6.7	Notification of Certain Matters	56
	Section 6.8	Public Announcements	56
	Section 6.9	Employee Matters	57
	Section 6.10	Arriver/Non-Arriver Separation Planning and Cooperation	59
	Section 6.11	Repayment of Indebtedness; Treatment of Convertible Notes	62
	Section 6.12	Integration Planning	65
	Section 6.13	Merger Sub; Acquiring Parties’ Affiliates	65
	Section 6.14	No Control of the Company’s Business	66
	Section 6.15	Rule 16b-3 Matters	66

	Section 6.16	Stock Exchange Matters	66
	Section 6.17	Takeover Laws	66
	Section 6.18	Investment and Separation Matters Agreement; Obligations of Acquisition Parties	66
	Section 6.19	Financing Arrangements	66
ARTICLE VII CONDITIONS TO THE MERGER			67
	Section 7.1	Conditions to the Obligations of Each Party	67
	Section 7.2	Conditions to the Obligations of the Acquiring Parties and Merger Sub	68
	Section 7.3	Conditions to the Obligations of the Company	69
ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER			68
	Section 8.1	Termination	69
	Section 8.2	Effect of Termination	76
	Section 8.3	Termination Fees; Expenses	70
	Section 8.4	Amendment	72

	Section 8.5	Extension; Waiver	72
	Section 8.6	Expenses; Transfer Taxes	73
	Section 8.7	Magna Payment	73
ARTICLE IX GENERAL PROVISIONS			74
	Section 9.1	Non-Survival of Representations, Warranties and Agreements	76
	Section 9.2	Notices	76
	Section 9.3	Interpretation; Certain Definitions	76
	Section 9.4	Severability	76
	Section 9.5	Assignment	76
	Section 9.6	Entire Agreement	76
	Section 9.7	No Third Party Beneficiaries	76
	Section 9.8	Governing Law	77
	Section 9.9	Specific Performance	77
	Section 9.10	Consent to Jurisdiction	77
	Section 9.11	Counterparts	78
	Section 9.12	WAIVER OF JURY TRIAL	78
Appendix A			A-1
Appendix B			B-1

	Page(s)
Acceptable Confidentiality Agreement	52, A-1
Acquiring Parties	1, A-1
Acquiring Party Material Adverse Effect	A-1
Action	A-1
Adverse Recommendation Change	52, A-1
Affiliate	A-1
Aggregate Merger Consideration	▇-▇
▇▇▇▇▇▇▇▇▇	▇, ▇-▇
Alternative Acquisition Agreement	51, A-1
Antitrust Laws	A-1
Arriver Business	A-1
Arriver Sale	1, A-2
Arriver/Non-Arriver Separation Planning	1, A-2
Blue Sky Laws	A-2
Book-Entry Evidence	4, A-2
Bribery Act	30, A-2
Business Day	A-2
CARES Act	A-2
CEO Direct Report	A-2
Certificate of ▇▇▇▇▇▇	▇, ▇-▇
Certificates	4, ▇-▇
▇▇▇▇▇▇▇	▇, ▇-▇
Closing Date	3, A-2
Closing Notice	A-2
Code	A-3
Company	1, A-3
Company 401(k) Plan	A-3
Company Benefit Plan	A-3
Company Board	1, A-3
Company ▇▇▇▇▇▇	▇▇, ▇-▇
Company ▇▇▇▇▇▇▇ ▇▇▇▇▇	▇▇, ▇-▇
Company Charter	11, A-3
Company Common Stock	1, A-3
Company Data	A-3
Company Debt	65, A-3
Company Disclosure Letter	A-3
Company Equity Awards	A-3
Company Equity Plan	A-3
Company Intellectual Property Rights	A-4
Company Material Adverse Effect	68, A-4

THIS AGREEMENT AND PLAN OF MERGER, dated as of October 4, 2021 (this “Agreement”), is made by and among ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, a Delaware corporation (“QUALCOMM”), SSW HoldCo LP, a Delaware limited partnership (“SSW” and, together with QUALCOMM, the “Acquiring Parties”), SSW Merger Sub Corp, a Delaware corporation and a direct, wholly owned Subsidiary of SSW (“Merger Sub”), and Veoneer, Inc., a Delaware corporation (the “Company”).

 

 

WHEREAS, the Company, SSW and Merger Sub desire to effect the merger of Merger Sub with and into the Company, pursuant to the Delaware General Corporation Law (the “DGCL”), with the Company continuing as the surviving corporation and as a direct, wholly owned Subsidiary of SSW (the “Merger”), on the terms and subject to the conditions set forth in this Agreement, pursuant to which, except as otherwise provided in Section 3.1, each share of common stock, par value $1.00 per share, of the Company (the “Company Common Stock”) issued and outstanding immediately prior to the Effective Time will be converted into the right to receive the Merger Consideration, without interest and subject to any withholding of Taxes required by applicable Law;

 

WHEREAS, concurrently with the execution of this Agreement, QUALCOMM and SSW have entered into an Investment and Separation Matters Agreement, dated as of the date of this Agreement (the “Investment and Separation Matters Agreement”) setting forth the terms and conditions pursuant to which, following the Closing of the Merger, the Non-Arriver Business will be extracted from the Company (the “Non-Arriver Extraction”) and immediately thereafter the Arriver Business will be sold to QUALCOMM by way of a merger of the Company with and into a designated Subsidiary of QUALCOMM, with the Company surviving such merger as a wholly owned Subsidiary of QUALCOMM (the “Arriver Sale”);

 

WHEREAS, QUALCOMM and SSW desire to effect the Non-Arriver Extraction as promptly as possible following Closing of the Merger, on the terms and subject to the conditions set forth in this Agreement and the Investment and Separation Matters Agreement, and the Company has agreed to reasonably cooperate in effecting the Non-Arriver Extraction and the Arriver Sale (the “Arriver/Non-Arriver Separation Planning”), in accordance with the terms and conditions set forth in this Agreement and subject to applicable Law;

 

WHEREAS, the board of directors of the Company (the “Company Board”) has unanimously (a) approved this Agreement, the Merger and the other transactions contemplated hereby, (b) determined that the Merger and the other transactions contemplated hereby, taken together, are advisable and in the best interests of the Company and its stockholders and (c) on the terms and subject to the conditions as set forth in this Agreement, resolved to recommend the adoption of this Agreement by the Company’s stockholders;

 

WHEREAS, the general partner of SSW and the board of directors of Merger Sub have each unanimously (a) approved this Agreement, the Merger, Non-Arriver Extraction and sale to QUALCOMM of the Arriver Business and the other transactions contemplated hereby, (b) determined that the Merger and the other transactions contemplated hereby, taken together, are advisable and in the best interests of SSW, Merger Sub and their respective equity holders and (c) recommended the adoption of this Agreement by Merger Sub’s sole stockholder;

 

WHEREAS, the board of directors of QUALCOMM has unanimously (a) approved this Agreement, QUALCOMM’s acquisition of the Arriver Business and the other transactions contemplated hereby and (b) determined that the transactions contemplated hereby, taken together, are advisable and in the best interests of QUALCOMM and its stockholders;

 

WHEREAS, that certain Agreement and Plan of Merger, dated as of July 22, 2021 (the “Magna Agreement”), by and among Magna International Inc., an Ontario corporation (“Magna”), 2486345 Delaware Corporation, a Delaware corporation and indirect, wholly owned Subsidiary of Magna, and the Company, has been validly terminated in accordance with its terms prior to the execution and delivery of this Agreement by the Company;

 

WHEREAS, concurrently with and as a condition to the effectiveness of such termination of the Magna Agreement, the Acquiring Parties, on behalf of the Company, have paid in full the termination fee in the amount of $110,000,000 to Magna by wire transfer of immediately available funds (the “Magna Termination Fee”) in accordance with the terms of the Magna Agreement, in full satisfaction of all of the Company’s remaining obligations under the Magna Agreement;

 

WHEREAS, the sole stockholder of Merger Sub has adopted this Agreement and the consummation of the transactions contemplated hereby, including the Merger; and

 

WHEREAS, each of the Acquiring Parties, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger.

 

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties and covenants and subject to the conditions herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

 

ARTICLE I

 

 

 ARTICLE II

 

 

 

 

(a)

Concurrently with the Closing, each of the Company, the Acquiring Parties and Merger Sub shall cause a certificate of merger with respect to the Merger (the “Certificate of Merger”) to be executed, acknowledged, delivered to and filed with the Office of the Secretary of State of the State of Delaware (the “Secretary”) as provided under the DGCL.  The Merger shall become effective on the date and time at which the Certificate of Merger has been received for filing by the Secretary (such date and time of filing, or such later time as may be agreed to by the Acquiring Parties, Merger Sub and the Company and set forth in the Certificate of Merger, being hereinafter referred to as the “Effective Time”).

 

(b)

The Merger shall have the effects set forth in the applicable provisions of the DGCL, this Agreement and the Certificate of Merger.  Without limiting the generality of the foregoing, from and after the Effective Time, the Surviving Corporation shall possess all properties, rights, privileges, powers and franchises of the Company and Merger Sub, and all of the claims, obligations, liabilities, debts and duties of the Company and Merger Sub shall become the claims, obligations, liabilities, debts and duties of the Surviving Corporation.

 

 

 

 

ARTICLE III

 

 

 

(a)

Cancellation of Company Securities.  Each share of Company Common Stock held by the Company or any Subsidiary of the Company (including shares held as treasury stock) or held, directly or indirectly, by SSW or Merger Sub or any of their wholly owned Subsidiaries immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist as issued or outstanding shares, and no consideration or payment shall be delivered in exchange therefor or in respect thereof.

 

(b)

Conversion of Company Securities.  Except as otherwise provided in this Agreement, each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than any shares cancelled pursuant to Section 3.1(a) and any Dissenting Shares) shall be converted into the right to receive $37.00 per share of Company Common Stock in cash (the “Merger Consideration”), without interest and subject to any withholding of Taxes required by applicable Law.  Each share of Company Common Stock to be converted into the right to receive the Merger Consideration as provided in this Section 3.1(b) shall no longer be issued or outstanding and shall automatically be cancelled and shall cease to exist, and the holders of certificates (the “Certificates”) or book-entry evidence of shares (“Book-Entry Evidence”) which immediately prior to the Effective Time represented such shares of Company Common Stock shall cease to have any rights with respect to such Company Common Stock other than the right to receive, upon surrender of such Certificates or Book-Entry Evidence in accordance with Section 3.2, the Merger Consideration without interest thereon and subject to any withholding of Taxes required by applicable Law.

 

(c)

Conversion of Merger Sub Capital Stock.  At the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof, each share of common stock, $1.00 par value per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall automatically be converted into and become 1,000 fully paid, non-assessable shares of common stock, $1.00 par value per share, of the Surviving Corporation and shall constitute the only issued or outstanding shares of capital stock of the Surviving Corporation.

 

(d)

Adjustments.  Without limiting the other provisions of this Agreement, if at any time during the period between the date of this Agreement and the Effective Time, any change in the number of outstanding shares of Company Common Stock shall occur as a result of a reclassification, recapitalization, stock split (including a reverse stock split) or similar event, or combination, exchange or readjustment of shares, or any stock dividend or distribution with a record date during such period, the Merger Consideration shall be equitably adjusted to provide the same economic effect as contemplated by this Agreement prior to such event.  Nothing in this Section 3.1(d) shall be construed to permit any party to take any action that is otherwise prohibited or restricted by any other provision of this Agreement.

 

 

(a)

Designation of Paying Agent; Deposit of Exchange Fund.  No later than ten (10) days prior to the Effective Time, the Acquiring Parties shall, at their sole cost and expense, designate a reputable bank or trust company (the “Paying Agent”) that is organized and doing business under the laws of the United States, the identity and the terms of appointment of which to be reasonably acceptable to the Company, to act as paying agent for the payment of the Aggregate Merger Consideration, and shall enter into an agreement (the “Paying Agent Agreement”) relating to the Paying Agent’s responsibilities with respect thereto, in form and substance reasonably acceptable to the Company.  Concurrently with the filing of the Certificate of Merger, SSW shall, and QUALCOMM shall cause SSW to, deposit, or cause to be deposited with the Paying Agent, cash constituting an amount equal to the Aggregate Merger Consideration (such Aggregate Merger Consideration as deposited with the Paying Agent, the “Exchange Fund”).  In the event the Exchange Fund shall be insufficient to make the payments contemplated by Section 3.1(b), SSW shall, and QUALCOMM shall cause SSW to, promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount which is equal to the deficiency in the amount required to make such payments in full.  The Acquiring Parties shall cause the Exchange Fund to be (i) held for the benefit of the holders of Company Common Stock and (ii) applied promptly to making the payments pursuant to Section 3.1(b).  The Exchange Fund shall not be used for any purpose other than to fund payments pursuant to Section 3.1, except as expressly provided for in this Agreement.

 

(b)

Procedures for Exchange.

 

 (i)        Certificates.  As promptly as reasonably practicable following the Effective Time and in any event not later than the second (2nd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of a Certificate that immediately prior to the Effective Time represented outstanding shares of Company Common Stock (A) a letter of transmittal, which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) to the Paying Agent and which shall be in the form and have such other provisions as the Acquiring Parties and the Company may reasonably specify and (B) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration into which the number of shares of Company Common Stock previously represented by such Certificate shall have been converted pursuant to this Agreement (which instructions shall be in the form and have such other provisions as the Acquiring Parties and the Company may reasonably specify).

 

 (ii)          Book-Entry Evidence.  As promptly as reasonably practicable following the Effective Time and in any event not later than the second (2nd) Business Day thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of a Book-Entry Evidence not held through The Depository Trust Company (and to deliver to The Depository Trust Company, in the case of holders of Book-Entry Evidence held through The Depository Trust Company) that immediately prior to the Effective Time represented outstanding shares of Company Common Stock (A) a letter of transmittal, which shall be in the form and have such other provisions as the Acquiring Parties and the Company may reasonably specify, and (B) instructions for returning such letter of transmittal in exchange for the right to receive the Merger Consideration into which the number of shares of Company Common Stock previously represented by such Book-Entry Evidence shall have been converted pursuant to this Agreement (which instructions shall be in the form and have such other provisions as the Acquiring Parties and the Company may reasonably specify).  Notwithstanding anything to the contrary contained in this Agreement, no holder of Book-Entry Evidence shall be required to deliver a Certificate or, in the case of holders of Book-Entry Evidence held through The Depository Trust Company, an executed letter of transmittal to the Paying Agent to receive the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(b).

 

(c)

Timing of Exchange.  Upon surrender of a Certificate (or affidavit of loss in lieu thereof) or Book-Entry Evidence for cancellation to the Paying Agent, together with, in the case of Certificates and Book-Entry Evidence not held through The Depository Trust Company, a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, or, in the case of Book-Entry Evidence held through The Depository Trust Company, receipt of an “agent’s message” by the Paying Agent, and such other documents as may be required pursuant to such instructions, the holder of such Certificate or Book-Entry Evidence shall be entitled to receive in exchange therefor the Merger Consideration for each share of Company Common Stock formerly represented by such Certificate or Book-Entry Evidence upon the later to occur of (i) the Effective Time or (ii) the Paying Agent’s receipt of such Certificate (or affidavit of loss in lieu thereof), Book-Entry Evidence or “agent’s message,” and the Certificate (or affidavit of loss in lieu thereof) or Book-Entry Evidence so surrendered shall be forthwith cancelled.  The Paying Agent Agreement shall provide that the Paying Agent shall accept such Certificates (or affidavits of loss in lieu thereof) or Book-Entry Evidence upon compliance with such reasonable terms and conditions as the Paying Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices.  No interest shall be paid or accrued for the benefit of holders of the Certificates or Book-Entry Evidence on the Merger Consideration payable upon the surrender of the Certificates or Book-Entry Evidence.

 

(d)

Termination of Exchange Fund.  Any portion of the Exchange Fund which remains undistributed to the holders of the Certificates or Book-Entry Evidence for one (1) year after the Effective Time shall be delivered to the Surviving Corporation, upon written demand, and any such holders prior to the Merger who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation as a general creditor thereof for payment of their claims for Merger Consideration (without any interest thereon) in respect thereof, subject to abandoned property, escheat or similar Law.

 

(e)

No Liability.  None of the Acquiring Parties, Merger Sub, the Company, the Surviving Corporation or the Paying Agent shall be liable to any Person in respect of any cash held in the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.  If any Certificate or Book-Entry Evidence shall not have been surrendered immediately prior to the date on which any cash in respect of such Certificate or Book-Entry Evidence would otherwise escheat to or become the property of any Governmental Authority, any such cash in respect of such Certificate or Book-Entry Evidence shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.

(f)

Investment of Exchange Fund.  The Paying Agent Agreement shall provide that the Paying Agent shall invest any cash included in the Exchange Fund as directed by the Acquiring Parties or, after the Effective Time, the Surviving Corporation; provided that (i) no such investment (including any losses thereon) shall relieve the Acquiring Parties or the Paying Agent from making, or causing to be made, the payments required by this Article III, and following any losses (or any diminishment of the Exchange Fund for any other reason below the level required to make prompt cash payment in full of the aggregate funds required to be paid pursuant to the terms hereof) SSW shall, and QUALCOMM shall cause SSW to, promptly provide additional funds to the Paying Agent for the benefit of the holders of Company Common Stock in the amount of such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) all such investments shall be in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America.  Any interest or income produced by such investments will be payable to the Surviving Corporation or the Acquiring Parties, as directed by the Acquiring Parties.

 

(g)

Withholding.  The Acquiring Parties, the Surviving Corporation or the Paying Agent, as applicable, shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement such amounts as they are required to deduct and withhold with respect to the making of such payment under applicable Law.  The Acquiring Parties shall use reasonable best efforts to notify or cause to be notified, at least ten (10) Business Days prior to making any such deduction or withholding, the Person in respect of whom such deduction or withholding is expected to be made of such deduction or withholding (except no such notification shall be required if such Person is receiving such consideration as compensation for services for purposes of applicable Tax Law), which notice shall be in writing and include the amount of and basis for such deduction or withholding.  The Acquiring Parties or the Surviving Corporation, as applicable, shall cooperate with such Person to reduce or eliminate any such requirement to deduct or withhold to the extent permitted by Law.  To the extent that amounts are so withheld or paid over to or deposited with the relevant Governmental Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

 

 

(a)

Company Options.  At the Effective Time, each Company Option (whether or not vested) that is outstanding immediately prior to the Effective Time shall, automatically and without any required action on the part of the Company or the holder thereof, vest (if unvested) and be cancelled and converted into the right to receive an amount in cash, without interest, and subject to any withholding of Taxes required by applicable Law, equal to the product of (i) the excess, if any, of (A) the Merger Consideration over (B) the per-share exercise price for such Company Option multiplied by (ii) the total number of shares of Company Common Stock underlying such Company Option (the “Company Option Consideration”); provided that if the exercise price per share of Company Common Stock of such Company Option is equal to or greater than the Merger Consideration, such Company Option shall be cancelled without any cash payment or other consideration being made in respect thereof.

 

(b)

Treatment of Company RSUs.  At the Effective Time, each Company RSU that is outstanding immediately prior to the Effective Time shall, automatically and without any required action on the part of the holder thereof, vest (if unvested) and be cancelled and converted into the right to receive an amount in cash, without interest and subject to any withholding of Taxes required by applicable Law, equal to the product of (i) the total number of shares of Company Common Stock underlying such Company RSU (including any shares of Company Common Stock in respect of dividend equivalent units credited thereon) multiplied by (ii) the Merger Consideration (the “Company RSU Consideration”).

 

(c)

Treatment of Company PSUs.  At the Effective Time, each Company PSU that is outstanding immediately prior to the Effective Time shall, automatically and without any required action on the part of the holder thereof, vest (if unvested) and be cancelled and converted into the right to receive an amount in cash, without interest and subject to any withholding of Taxes required by applicable Law, equal to the product of (i) the number of shares of Company Common Stock underlying such Company PSU (including any shares of Company Common Stock in respect of dividend equivalent units credited thereon) determined based on the attainment of the applicable performance metrics at (x) the actual level of performance for any performance periods that have concluded prior to the date hereof, and (y) the greater of the target level of performance or actual level of performance measured through the Closing Date (as determined by the Board of Directors of the Company), for any performance periods that would otherwise conclude following the date hereof, in each case, multiplied by (ii) the Merger Consideration (the “Company PSU Consideration”).

 

(d)

Delivery of Company Equity Award Consideration; Withholding; Section 409A.  The Acquiring Parties shall cause the Surviving Corporation to pay through the payroll system of the Surviving Corporation (to the extent applicable) to each holder of a Company Equity Award the Company Option Consideration, Company RSU Consideration and Company PSU Consideration, as applicable, less any required withholding Taxes and without interest, within two (2) Business Days following the Effective Time, subject to any requirements under applicable Law.  Notwithstanding anything herein to the contrary, (i) with respect to any Company Equity Award that constitutes nonqualified deferred compensation subject to Section 409A of the Code and that the Company determines prior to the Effective Time is not eligible to be terminated in accordance with Treasury Regulation Section 1.409A-3(j)(4)(ix)(B), such payment will be made at the earliest time permitted under the applicable Company Equity Plan that will not trigger a Tax or penalty under Section 409A of the Code and (ii) with respect to Company Equity Awards held by individuals subject to Taxes imposed by the Laws of a country other than the United States, the parties hereto shall cooperate in good faith prior to the Effective Time to minimize the Tax impact of the provisions set forth in this Section 3.3.

 

(e)

Corporate Actions.  At or prior to the Effective Time, the Company, the Company Board or the Compensation Committee of the Company Board, as applicable, shall adopt any resolutions and take any actions which are necessary to effectuate the provisions of this Section 3.3.

 

 

 

 

 

Except as disclosed in the Company Disclosure Letter (subject to Section 9.3(b)) or in the publicly available Company SEC Documents filed with or furnished to the SEC by the Company on or after the Spin Date and prior to the date of this Agreement (other than any disclosures set forth under the headings “Risk Factors” or “Forward-Looking Statements,” any disclosure in any section relating to forward-looking statements and any other statements that are predictive or forward-looking in nature other than historical facts included therein); provided that in no event shall any disclosure in any Company SEC Document qualify or limit the representations and warranties of the Company set forth in Section 4.1 (Organization and Qualification; Subsidiaries), Section 4.2(a) (Capitalization), Section 4.3 (Authority Relative to Agreement), Section 4.22 (Brokers) or Section 4.23 (Opinion of Financial Advisor) the Company hereby represents and warrants to the Acquiring Parties as of the date hereof as follows:

 

 

(a)

As of September 30, 2021 (the “Measurement Date”), the authorized capital stock of the Company consists of (i) 325,000,000 shares of Company Common Stock, 111,978,226 of which were issued and outstanding, (ii) 25,000 shares of preferred stock, par value $1.00 per share (none of which were issued and outstanding), (iii) Company Options to purchase an aggregate of 180,475 shares of Company Common Stock and (iv) 1,088,707.5 shares of Company Common Stock subject to outstanding Company Stock Units (with the Company PSUs measured at the target level of performance for any non-completed periods).  From the Measurement Date through the date of this Agreement, the Company has not issued or granted any Company Securities other than pursuant to the exercise or vesting of Company Equity Awards outstanding as of the Measurement Date.  Other than the Company Securities, no Company Capital Stock is outstanding.  As of the date hereof, no shares of Company Common Stock are held by the Company in its treasury or by any Subsidiary of the Company.  All outstanding shares of Company Common Stock and capital stock or equivalent equity interests of each Subsidiary of the Company are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.  As of the date hereof, other than as set forth above in this Section 4.2(a) or in Section 4.2(d) of the Company Disclosure Letter, there are no existing and outstanding (A) shares of capital stock or equity interests of the Company or securities of the Company or its Subsidiaries convertible into or exchangeable for shares of capital stock or other equity or voting interests of the Company, (B) options, warrants, calls, restricted shares, phantom stock, stock appreciation rights, performance units, contingent value rights, subscriptions or other rights, convertible securities (other than the Convertible Notes), agreements or commitments (including any bonds, debentures, notes or other indebtedness having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of the Company or its Subsidiaries may vote) of any character to which the Company or any of its Subsidiaries is a party obligating the Company or any of its Subsidiaries to issue, transfer or sell any shares of capital stock or other equity interests in the Company or any of its Subsidiaries or securities convertible into or exchangeable for such shares or equity interests, (collectively and together with the shares, interests or securities referred to in clause (A), “Company Capital Stock”), (C) contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any capital stock or other equity interests of the Company, (D) voting trusts or similar agreements to which the Company is a party with respect to the voting or registration of the capital stock or other equity interests of the Company or any of its Subsidiaries, (E) other than as provided in Section 7 of the Specified Agreement, contractual obligations or agreements restricting the transfer of, requiring the registration for sale of, or granting any preemptive rights, subscription rights, anti-dilutive rights, rights of first refusal or any similar rights with respect to any Company Securities or capital stock of (or other equity or voting interest in) any Subsidiary of the Company, or (F) phantom stock, restricted stock units, equity or equity-based awards or other contractual rights the value of which is determined in whole or in part by reference to the value of any capital stock of the Company or outstanding stock appreciation rights issued by the Company with respect to the capital stock of the Company.  Except as permitted after the date hereof pursuant to the terms of this Agreement, there are no individuals with an offer letter, other employment Contract or other arrangement or Contract that contemplates a grant of awards that would be Company Options, Company RSUs, Company PSUs (if outstanding on the date hereof) or other equity or equity-based awards, or who has been promised any such awards, which awards have not been granted as of the date hereof.  The Company has not issued any Company Securities or incurred any obligation to make any payments to any Person based on the price or value of any Company Securities, other than in connection with any Company Equity Awards outstanding as of the Measurement Date in accordance with their terms.  No dividends or similar distributions have accrued or been declared but are unpaid on any Company Securities, and the Company is not subject to any obligation (contingent or otherwise) to pay any dividend or otherwise to make any distribution or payment to any current or former holder of any Company Securities (in each case, other than with respect to dividends to be paid by any wholly owned Subsidiary of the Company to the Company or any wholly owned Subsidiary of the Company).

 

(b)

All of the outstanding shares of capital stock or equivalent equity interests of each of the Company’s Subsidiaries are owned of record and beneficially, directly or indirectly, by the Company or the relevant wholly owned Subsidiary and free and clear of all Liens except for restrictions imposed by applicable securities Laws and Permitted Liens.

 

(c)

Neither the Company nor any of its Subsidiaries owns, directly or indirectly, any interest or investment (whether equity or debt, including any security or other rights, agreement or commitment convertible or exercisable into, or exchangeable for, any equity interests) in any Person, other than a Subsidiary of the Company.

 

(d)

Section 4.2(d) of the Company Disclosure Letter sets forth a complete and accurate list of each outstanding Company Equity Award granted under any of the Company Equity Plans and: (i) the employee identification number of the holder of such Company Equity Award, (ii) the type of Company Equity Award (i.e., whether a Company Option, Company RSU or Company PSU), (iii) with respect to any Company Option, whether the Company Option is intended to qualify as an “incentive stock option” under Section 422 of the Code, (iv) the name of the Company Equity Plan under which the Company Equity Award was issued, (v) the number of shares of Company Common Stock subject to such outstanding Company Equity Award (including, for Company PSUs, both the target and maximum number of shares of the Company issuable under such Company PSU), (vi) if applicable, the exercise price, strike price or similar pricing of such Company Equity Award, (vii) the date on which such Company Equity Award was granted or issued, (viii) the applicable vesting, repurchase or other lapse of restrictions schedule, (ix) the number of shares of Company Common Stock which are vested and unvested with respect to the Company Equity Award, and (x) the expiration date of the term of such Company Equity Award (if applicable).

 

(e)

As of September 23, 2021, 11,828,560 shares of Company Common Stock are reserved for issuance in connection with the Convertible Notes and the Conversion Rate (as defined in the Convertible Notes Indenture) of the Convertible Notes is 44.8179 shares of Company Common Stock per $1,000 aggregate principal amount of Convertible Notes (taking into account any adjustments deferred and not yet made pursuant to Section 14.04(l) of the Convertible Notes Indenture).

 

 

(a)

The Company has all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, including the Merger, subject to the adoption of this Agreement by the holders of a majority of the outstanding shares of Company Common Stock that are entitled to vote thereon at the Company Stockholders Meeting, whether in person or by proxy (the “Company Stockholder Approval”).  The execution, delivery and performance of this Agreement by the Company, and the consummation by the Company of the transactions contemplated by this Agreement, have been duly and validly authorized by all necessary corporate action by the Company, except for the Company Stockholder Approval, and no other corporate Action on the part of the Company is necessary to authorize the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement.  This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery of this Agreement by the other parties hereto, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights and remedies generally and (ii) the remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.  The Company Stockholder Approval is the only vote of the holders of any securities (including SDRs) of the Company that is required in connection with the Merger and the other transactions contemplated hereby.

 

(b)

The Company Board has unanimously (i) approved this Agreement, the Merger and the other transactions contemplated hereby, (ii) determined that the Merger and the other transactions contemplated hereby, taken together, are advisable and in the best interests of the Company and its stockholders, (iii) resolved to make the Company Recommendation (provided that any change, modification or rescission of such recommendation by the board of directors of the Company in accordance with Section 6.5 shall not be a breach of the representation in clause (iii)), (iv) such resolutions are sufficient to render the provisions of Section 203 of the DGCL inapplicable to the Acquiring Parties and Merger Sub and to this Agreement, the Merger and the other transactions contemplated hereby and thereby and (v) approved the termination of the Magna Agreement.  No other “business combination”, “control share acquisition”, “fair price”, “moratorium” or other anti-takeover Laws apply to this Agreement, the Merger or any other transaction contemplated hereby.

 

 

(a)

Neither the execution and delivery of this Agreement by the Company nor the consummation by the Company of the transactions contemplated hereby will (i) violate any provision of the Company Charter or Company Bylaws, (ii) assuming that the Consents, registrations, declarations, filings and notices referred to in Section 4.4(b) have been obtained or made, any applicable waiting periods referred to therein have expired and any condition precedent to any such Consent has been satisfied, conflict with or violate any Law applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected, (iii) result in any breach of, or constitute a default (with or without notice or lapse of time, or both) under, or give rise to any right of termination, acceleration, loss of rights or cancellation of, any (A) Real Property Lease or (B) Company Material Contract or (iv) result in the creation or imposition of any Lien (other than any Permitted Lien) upon any of the properties or assets of the Company or any of its Subsidiaries, other than, in the case of clauses (ii), (iii) and (iv) any such conflict, violation, breach, default, termination, acceleration or cancellation that would not have a Company Material Adverse Effect.

 

(b)

No consent, approval, license, permit, Order or authorization (a “Consent”) of, or registration, declaration or filing with, or notice to, any Governmental Authority is required to be obtained or made by or with respect to the Company or any of its Subsidiaries in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby, other than (i) the filing with the SEC of the Proxy Statement in preliminary and definitive forms and the applicable requirements of and filings with the SEC under the Exchange Act, (ii) the filing of the Certificate of Merger with the Secretary and appropriate documents with the relevant authorities of the other jurisdictions in which the Company or any of its Subsidiaries is qualified to do business, (iii) applicable requirements under corporation or Blue Sky Laws of various states, (iv) such filings as may be required in connection with the Taxes described in Section 8.6, (v) filings with The New York Stock Exchange (the “NYSE”) or Nasdaq Stockholm, (vi) such other items required solely by reason of the identity of the Acquiring Parties or Merger Sub and their participation in the transactions contemplated hereby, (vii) compliance with and filings or notifications under the HSR Act or other Antitrust Laws and Investment Screening Laws and (viii) such other Consents, registrations, declarations, filings or notices the failure of which to be obtained or made would not have a Company Material Adverse Effect.

 

 

(a)

The Company and its Subsidiaries are in possession of all franchises, grants, easements, variances, exceptions, Consents and certificates necessary for the Company and its Subsidiaries to own, lease and operate their properties and assets and to carry on their business as it is now being conducted (the “Company Permits”), and all Company Permits are in full force and effect and no suspension or cancellation of any of the Company Permits is pending or, to the Knowledge of the Company, threatened, except where the failure to be in possession of or be in full force and effect, or the suspension or cancellation of, any of the Company Permits would not have a Company Material Adverse Effect.

 

(b)

None of the Company or any of its Subsidiaries is in default or violation of any Law applicable to the Company or any of its Subsidiaries, except for any such defaults or violations that would not have a Company Material Adverse Effect.

 

 

(a)

Since January 1, 2019, the Company has filed or furnished with the SEC all material forms, documents and reports required to be filed or furnished prior to the date hereof by it with the SEC (the “Company SEC Documents”).  As of their respective dates, or, if amended, as of the date of the last such amendment, the Company SEC Documents complied in all material respects with the requirements of the Securities Act and the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as the case may be, and the applicable rules and regulations promulgated thereunder, and none of the Company SEC Documents at the time it was filed (or, if amended, as of the date of the last amendment) contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, or are to be made, not misleading.

 

(b)

As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received by the Company or any of its Subsidiaries from the SEC or its staff that would be required to be disclosed under Item 1B of Form 10-K under the Exchange Act.  To the Knowledge of the Company, as of the date hereof, none of the Company SEC Documents is the subject of ongoing SEC review or investigation.  There has been no material correspondence between the SEC, on the one hand, and the Company and any of its Subsidiaries, on the other hand, occurring since December 31, 2020 on or prior to the date hereof that is not available to the public on the SEC’s Electronic Data Gathering and Retrieval database.

 

(c)

The consolidated financial statements (including all related notes) of the Company included in the Company SEC Documents (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the respective dates thereof and its consolidated statements of operations and consolidated statements of cash flows for the respective periods then ended (subject, in the case of unaudited interim statements, to normal year-end audit adjustments, and any other adjustments described therein, including in any notes thereto, in each case, which would not, individually or in the aggregate, be material to the Company and its Subsidiaries, taken as a whole) were prepared in conformity with GAAP (except, in the case of unaudited statements, as permitted by Form 10-Q or any successor form or other rules under the Exchange Act) applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto), (ii) are in accordance, in all material respects, with the books and records of the Company and its consolidated Subsidiaries, and (iii) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act, the Securities Act and the DGCL.

 

 

 

 

No Undisclosed Liabilities.  Except (a) as reflected, disclosed or reserved against in the Company’s consolidated balance sheet of the Company and its Subsidiaries as of June 30, 2021, and the notes thereto, as set forth in the Company’s report on Form 10-Q for the three months ended June 30, 2021, (b) for liabilities or obligations incurred in the ordinary course of business since June 30, 2021, consistent with past practice, (c) for liabilities or obligations incurred in connection with this Agreement, and the transactions contemplated hereby (d) for liabilities or obligations that would not have a Company Material Adverse Effect or (e) as set forth in Section 4.10 of the Company Disclosure Letter, as of the date hereof, the Company and its Subsidiaries do not have any liabilities or obligations of any nature, whether or not accrued, contingent, absolute, determined, determinable or otherwise.  Neither the Company nor any of its Subsidiaries is a party to, or has any commitment to become a party to, any material “off balance sheet arrangement” within the meaning of Item 303 of Regulation S-K promulgated under the Securities Act.

Section 4.11

Litigation.  Except as set forth in Section 4.11 of the Company Disclosure Letter, as of the date hereof, there is no Action pending or, to the Knowledge of the Company, threatened by or against the Company or any of its Subsidiaries or any of their assets or properties, or to the Knowledge of the Company, any present or former officer or director the Company or any of its Subsidiaries (in such individual’s capacity as such), that would have a Company Material Adverse Effect, nor is there any Order of any Governmental Authority outstanding against, or, to the Knowledge of the Company, investigation or review pending or threatened in writing by any Governmental Authority involving, the Company or any of its Subsidiaries, that would have a Company Material Adverse Effect.  As of the date hereof, there is no Action pending or, to the Knowledge of the Company, threatened in writing seeking to prevent, enjoin, modify, materially delay or challenge the Merger or any of the other transactions contemplated by this Agreement or the ability of the Company to fully perform its covenants and obligations pursuant to this Agreement.

 

Section 4.12

Employee Benefit Plans.

(a)

Section 4.12(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of each material Company Benefit Plan.  The Company has made available to the Acquiring Parties a true and complete copy of each material Company Benefit Plan (or, in the case of any unwritten Company Benefit Plan, a true and correct description of the material terms thereof) and all amendments thereto and a true and complete copy of the following items (in each case, only if applicable): (i) each trust agreement, insurance contract, policy documents or other funding arrangement related thereto, (ii) the most recent summary plan description and summary of material modifications, (iii) the three most recently filed annual reports on IRS Form 5500 with all corresponding schedules and financial statements attached thereto (including any related actuarial valuation report), (iv) the most recently received IRS determination letter or IRS advisory or opinion letter issued with respect to any Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code; and (v) any material notices, letters or other correspondence with the IRS, the Department of Labor, the Pension Benefit Guaranty Corporation or any other Governmental Authority.

 

(b)

(i) Except as would not have a Company Material Adverse Effect, (i) each of the Company Benefit Plans has been maintained, operated, administered and funded in accordance with its terms and in compliance with applicable Laws, (ii) no Action (other than routine claims for benefits), including any audit, is pending against or involves or, to the Knowledge of the Company, is threatened against or reasonably expected to involve, any Company Benefit Plan, (iii) payments required to be paid by the Company or any of its Subsidiaries pursuant to the terms of a Company Benefit Plan or by applicable Law (including all contributions and insurance premiums) with respect to all prior periods have been timely made or provided for by the Company or its Subsidiaries in accordance with the provisions of such Company Benefit Plan or applicable Law, (iv) no non-exempt “prohibited transaction,” within the meaning of Section 4975 of the Code and Section 406 of ERISA, has occurred or is reasonably expected to occur with respect to the Company Benefit Plans and (v) no event has occurred and no condition exists that would subject the Company or any of its Subsidiaries, either directly or by reason of their affiliation with any ERISA Affiliate, to any Tax, fine, penalty or other liability imposed by ERISA, the Code or other applicable Laws with respect to any Company Benefit Plan.

 

(c)

(i) Each Company Benefit Plan intended to be qualified under Section 401(a) of the Code is so qualified and has either received a currently-effective favorable determination letter from the IRS with respect to each such Company Benefit Plan as to its qualified status under the Code, or with respect to a prototype Company Benefit Plan, the prototype sponsor has received a favorable IRS advisory or opinion letter, and (ii) to the Knowledge of the Company, no event has occurred since the most recent determination or opinion or advisory letter or application therefor relating to any such Company Benefit Plan that would reasonably be expected to adversely affect the qualification of such Company Benefit Plan or the tax-exempt status of any related trust.

 

(d)

None of the Company, its Subsidiaries, or any of their respective ERISA Affiliates (nor any predecessor of any such entity) currently sponsors, maintains, administers or contributes to, has any obligation to contribute to or has any actual or potential liability in respect of, or has ever sponsored, maintained, administered or contributed to (or had any obligation to contribute to), (i) a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code; (ii) a “multiemployer plan” (within the meaning of Section 3(37) of ERISA); (iii) a “multiple employer plan” (within the meaning of Section 210 of ERISA or Section 413(c) of the Code); or (iv) a “multiple employer welfare arrangement” (as such term is defined in Section 3(40) of ERISA).

 

(e)          

Except as would not be material to the Company and its Subsidiaries, taken as a whole, each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined under Section 409A of the Code) has been operated in compliance with Section 409A of the Code and has complied with applicable documentary requirements of Section 409A of the Code.

 

(f)

Neither the execution or delivery of this Agreement nor the consummation of the Merger, either alone or in conjunction with any other event, will (i) except as expressly provided in this Agreement, entitle any current or former director, employee, consultant or independent contractor of the Company or any of its Subsidiaries to any payment or benefit, (ii) increase the amount or value of any benefit or compensation or other obligation payable or required to be provided to any such director, employee, consultant or independent contractor, or any Company Benefit Plan, (iii) except as expressly provided in this Agreement, accelerate the time of payment or vesting of amounts due any such director, employee, consultant or independent contractor or accelerate the time of any funding (whether to a trust or otherwise) of compensation or benefits in respect of any of the Company Benefit Plans, or (iv) result in any payment under any Company Benefit Plan or any other arrangement that would not be deductible under Section 280G of the Code.

 

(g)

Except as would not have a Company Material Adverse Effect, none of the Company Benefit Plans provides, and none of the Company or its Subsidiaries has any material obligations to provide post-termination or retiree health or life insurance benefits or other post-termination or retiree welfare benefits or coverage to any individual (other than for continuation coverage required to be provided pursuant to Section 4980B of the Code).

 

(h)

Except as would not have a Company Material Adverse Effect, each Company Benefit Plan that is required to be registered under the Laws of a jurisdiction outside the United States (i) has been registered and has been maintained in good standing with the appropriate regulatory authorities, (ii) if intended to qualify for special tax treatment, meets all the requirements for such treatment, and (iii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or so secured, based on reasonable actuarial assumptions in accordance with applicable accounting principles.

 

 

(a)

Section 4.13 of the Company Disclosure Letter sets forth a schedule of all non-U.S. collective bargaining agreements to which the Company is a party or bound by.  Except as set forth in Section 4.13 of the Company Disclosure Letter (as and when provided), neither the Company nor any of its Subsidiaries is a party to or bound by any works council or collective bargaining agreement, other than industry-wide agreements outside of the United States.  Except as would not have a Company Material Adverse Effect, there are no labor related strikes, walkouts or other work stoppages pending or, to the Knowledge of the Company, threatened in writing, and, since January 1, 2018, neither the Company nor any of its Subsidiaries has experienced any such labor related strike, walkout or other work stoppage.  To the Knowledge of the Company, there is no pending organizing campaign and no labor union or works council has made a pending written demand for recognition or certification, in each case, with respect to any employees of the Company or any of its Subsidiaries.

 

(b)

The Company and its Subsidiaries affirm that they have no outstanding WARN liability.

 

(c)

All employees of the Company and its Subsidiaries are legally authorized to work in the location where assigned, and the Company and its Subsidiaries maintain accurate records concerning all I-9 filings for employees working in the United States.

 

 

(a)

Except as would not have a Company Material Adverse Effect, (i) the Company and its Subsidiaries own, or have the right to use in the manner currently used, all Company Intellectual Property Rights and (ii) neither the Company nor any of its Subsidiaries has received, in the twelve (12) months preceding the date hereof, any written charge, complaint, claim, demand or notice challenging the validity of any Intellectual Property Rights owned (or purported to be owned), in whole or in part, by the Company or any of its Subsidiaries (the “Company Owned IP”).

(b)

To the Knowledge of the Company, the conduct of the business of the Company and its Subsidiaries as currently conducted does not infringe upon, misappropriate or otherwise violate, and has not in the two (2) years prior to the date hereof infringed upon, misappropriated or otherwise violated, any Intellectual Property Rights of any other Person, except for any such infringement, misappropriation or other violation that would not have a Company Material Adverse Effect.  None of the Company or any of its Subsidiaries has received, in the twelve (12) months preceding the date hereof, any written charge, complaint, claim, demand or notice alleging any such infringement, misappropriation or other violation by the Company or any of its Subsidiaries that has not been settled or otherwise fully resolved, except for any such infringement, misappropriation or other violation that would not materially adversely affect the business of the Company and its Subsidiaries.  To the Knowledge of the Company, as of the date hereof, no other Person is infringing upon, misappropriating or otherwise violating, and has not in the past two (2) years infringed upon, misappropriated or otherwise violated, any Company Owned IP, except for any such infringement, misappropriation or other violation as would not have a Company Material Adverse Effect.  Neither the Company nor any of its Subsidiaries has brought in the twelve (12) months preceding the date hereof or is currently a party to any Action alleging a material infringement of Company Owned IP.

 

(c)

As of the date of this Agreement, there is no Action currently pending against the Company or any of its Subsidiaries challenging the ownership, scope, validity or enforceability of any Company Registered IP (other than non-final office actions and similar correspondence involving the United States Patent and Trademark Office or any equivalent foreign Governmental Authority or any other Company Owned IP) except as would not have a Company Material Adverse Effect.  With respect to the Company Registered IP, except as would not have a Company Material Adverse Effect, to the Knowledge of the Company, (i) the Company and its Subsidiaries have complied with procedural obligations, including the duty of candor, in connection with its prosecution and maintenance of the Company Registered IP, (ii) all active Patent applications are in good standing and (iii) to the Knowledge of the Company, the issued and unexpired Patents are valid and enforceable.

 

(d)

Except as would not have a Company Material Adverse Effect, the Company or its Subsidiaries, as applicable, own all right, title and interest in the Company Owned IP, including the Company Registered IP, free and clear of all Liens (other than Permitted Liens) and without any joint or co-ownership rights of any third Person.  Except as would not have a Company Material Adverse Effect or as set forth in a Company Material Contract, neither the Company nor any of its Subsidiaries owes any ongoing or contingent compensation or remuneration (other than wages, salary and benefits payable to employees, and hourly fees, time and materials fees, support fees, milestone payments and other charges for services performed or to be performed, set fees or other non-continuing fees for services payable to contractors or consultants, for work performed) to a current or former Company Service Provider or other consultant or contractor for the use or other exploitation of any Company Owned IP that such Company Service Provider or other consultant or contractor was involved in developing.

 

(e)

As of the date of this Agreement, there are no orders, judgments, holdings, consents, decrees, settlements or rulings with respect to Intellectual Property Rights issued during the past three (3) years to which the Company or any of its Subsidiaries, or any of the Company Owned IP, is bound (excluding, for the avoidance of doubt, ordinary course determinations by the United States Patent and Trademark Office or any equivalent foreign Governmental Authority) which would have a Company Material Adverse Effect.

 

(f)

To the Knowledge of the Company, no software included in any Company Product that is Company Owned IP and no other material Company Owned IP incorporates any Public Software in a manner that requires that any Company Owned IP be licensed to any Person or that requires any source code that is Company Owned IP to be disclosed, licensed, publicly distributed, or dedicated to the public, except as is not material to the Company and its Subsidiaries, taken as a whole.

 

(g)

The Company and its Subsidiaries take and, in the past two (2) years, have taken, commercially reasonable measures to protect the confidentiality of its Trade Secrets, except as would not have a Company Material Adverse Effect.  To the Knowledge of the Company, (i) neither the Company nor any of its Subsidiaries has disclosed, delivered or licensed to any third Person, agreed to disclose, deliver or license to any third Person, or permitted the disclosure or delivery to any escrow agent or other third Person of, any material Source Code or Trade Secrets that is or are Company Owned IP, except for disclosures to employees, under Contracts that reasonably restrict the use and disclosure of such Source Code and Trade Secrets or where disclosure is the result of an affirmative business decision, such as to license software as Public Software, or to release specifications or documentation for Company Products or a software development kit and (ii) no event has occurred, and no circumstance or condition exists that (with or without notice or lapse of time) will result in the disclosure or delivery to any Person of any such material Company-owned Source Code or Trade Secrets, in each case (i) and (ii) except as would not be material to the business of the Company and its Subsidiaries.

 

(h)

As of the date hereof, neither the Company nor any of its Subsidiaries have made any material commitments or material agreements with any patent pool, industry standards body or standard setting organization, in each case that requires or obligates the Company or any of its Subsidiaries to grant or offer to other Persons that request it a license to any Patent included in the Company Owned IP, except as would not have a Company Material Adverse Effect.

 

(i)

Except as would not have a Company Material Adverse Effect, the Company and each of its Subsidiaries maintain the IT Assets, including any software and databases therein, to the extent within their control, employing commercially reasonable practices.  To the Knowledge of the Company, in the past two (2) years, there has been no defect, failure, breakdown, loss or impairment with respect to any of the Company Products that has resulted in a disruption or interruption with respect to any Company Products that has not been resolved or that is material to business of the Company and its Subsidiaries, except as would not be material to the business of the Company and its Subsidiaries.  To the Knowledge of the Company, no Company Products or Company Technology, to the extent of Company Owned IP therein or to the extent within the control of the Company or its Subsidiaries, contains any Malicious Code, except as would not have a Company Material Adverse Effect.

 

(j)

To the Knowledge of the Company, no funding, facilities or resources of any Governmental Authority or any granting agency, university, college or other academic institution were used in the creation, development or reduction to practice of any Company Products or Company Owned IP by the Company or any of its Subsidiaries except as would not have a Company Material Adverse Effect.

 

(k)

(i) The Company, its Subsidiaries and, with respect to the Processing of Company Data on behalf of the Company and its Subsidiaries, to the Knowledge of the Company as of the date hereof, their Data Processors, are in compliance and have complied during the past two (2) years with the Company Privacy Policies and the Privacy Requirements and (ii) any such Data Processor has provided guarantees, warranties or covenants in relation to Processing of Personal Data, confidentiality, and security measures, and have agreed to comply with those obligations in a manner sufficient for the Company and its Subsidiaries’ compliance with Privacy Requirements, except, in each case, as would not have a Company Material Adverse Effect.

 

(l)

In the twelve (12) months prior to the date hereof, except as has not had a Company Material Adverse Effect, (i) neither the Company, its Subsidiaries and, to the Knowledge of the Company, their Data Processors, have experienced any Security Incident, have not been required to notify any Person or Governmental Authority of any Security Incident, and have not been adversely affected by any Malicious Code, ransomware or malware attacks, or denial-of-service attacks on any IT Systems; (ii) neither the Company, its Subsidiaries nor any third party acting at the direction or authorization of the Company or its Subsidiaries have paid any perpetrator of any actual or threatened Security Incident or cyber-attack against the Company or any of its Subsidiaries, including, but not limited to a ransomware attack or a denial-of-service attack; and (iii) the Company and its Subsidiaries have not received a written notice (including any enforcement notice), letter or complaint from a Governmental Authority alleging noncompliance or potential noncompliance with any Privacy Requirements or Company Privacy Policies and have not been subject to any proceeding relating to noncompliance or potential noncompliance with Privacy Requirements or the Company or its Subsidiaries’ Processing of Personal Data.

 

(m)

Except as would not have a Company Material Adverse Effect, (i) the Company and its Subsidiaries have established an Information Security Program that is reasonably implemented and maintained, and, in the twelve (12) months prior to the date hereof, there have been no violations of the Information Security Program; (ii) the Company and its Subsidiaries have assessed and tested the Information Security Program on a no less than annual basis during the twelve (12) months prior to the date hereof; remediated all identified critical and high risks and vulnerabilities under such program; and the Information Security Program is compliant with Privacy Requirements; and (iii) the IT Systems currently used by the Company and its Subsidiaries are in good working condition, do not contain any Malicious Code or defect and operate and perform in a reasonably adequate manner to conduct the business of the Company and its Subsidiaries.

Section 4.15

 

(a)

Except as would not have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries have timely filed (taking into account any valid extension of time within which to file) all Tax Returns required to be filed by any of them; (ii) each of such filed Tax Returns (taking into account all amendments thereto) is complete and accurate; and (iii) all Taxes shown to be due on such Tax Returns have been timely paid in full, or withheld and remitted to the appropriate taxing authority, except for Taxes being contested in good faith and for which adequate reserves in accordance with GAAP have been provided on the Company’s consolidated financial statements.

 

(b)

Except as would not have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries has received written notice of, or has pending, in process, or otherwise outstanding, any audit, examination or other Action from any taxing authority in respect of liabilities for Taxes of the Company or any of its Subsidiaries: (ii) no deficiency with respect to any Taxes has been assessed or proposed in writing against the Company or any of its Subsidiaries that has not been fully paid, except with respect to Taxes being contested in good faith and for which adequate reserves in accordance with GAAP have been provided on the Company’s consolidated financial statements; and (iii) with respect to any tax years open for audit as of the date hereof, neither the Company nor any of its Subsidiaries has granted any waiver of any statute of limitations with respect to, or any extension of a period for the assessment or collection of, any Tax.

 

(c)

There are no Liens for Taxes on any of the assets of the Company or any of its Subsidiaries other than Permitted Liens.

 

(d)

Except as would not have a Company Material Adverse Effect, no claim has been made in writing by any taxing authority in a jurisdiction in which the Company or any of its Subsidiaries has not filed a particular type of Tax Return or paid a particular type of Tax to the effect that the Company or such Subsidiary is required to file such Tax Return or pay such type of Tax in such jurisdiction.

 

(e)

Neither the Company nor any of its Subsidiaries has engaged in any “listed transaction” as defined in Treasury Regulations Section 1.6011-4(b)(2) or Treasury Regulations Section 301.6111-2(b)(2).

 

(f)

Neither the Company nor any of its Subsidiaries has any material liability for the Taxes of any Person (other than the Company or any of its Subsidiaries) under Section 1.1502-6 of the Treasury Regulations (or any corresponding or similar provision of state, local, or non-U.S. Law), as a transferee or successor; or by contract (other than contracts entered into in the ordinary course of business the primary purpose of which is not Taxes).

 

(g)

Neither the Company nor any of its Subsidiaries will be required to include any material item of income in, or to exclude any material item of deductions from, taxable income from any Tax period (or portion thereof) ending after the Closing as a result of any (i) change in method of accounting for a Tax period (or portion thereof) ending prior to the Closing, (ii) closing agreement as described in Section 7121 of the Code executed prior to the Closing, (iii) change in method of accounting adopted prior to the Closing, (iv) open transaction disposition entered into prior to Closing outside the ordinary course of business, (v) prepaid amount received prior to Closing outside the ordinary course of business or (vi) application of Section 965 of the Code or any related provisions applicable to controlled foreign corporations under federal, state, local or non-U.S. Law.  Neither the Company nor any of its Subsidiaries has made an election under Section 965(h) of the Code.

 

(h)

There are no requests for rulings or determinations in respect of any income or other material Tax pending between any of the Company or any of its Subsidiaries, on the one hand, and any taxing authority, on the other hand.  None of the Company or any of its Subsidiaries has received or applied for a Tax ruling or entered into a closing agreement pursuant to Section 7121 of the Code (or any predecessor provision or any similar provision of state, local or non-U.S. Law), in either case that would be binding upon the Company or any of its Subsidiaries after the Closing Date.

 

(i)

The Company and its Subsidiaries have (i) to the extent applicable, properly complied with all requirements of applicable Tax Law in order to defer the amount of the employer’s share of any “applicable employment taxes” under Section 2302 of the CARES Act, (ii) not deferred any payroll tax obligations pursuant to the CARES Act, (iii) to the extent applicable, properly complied with all requirements of applicable Tax Law and duly accounted for any available Tax credits under Sections 7001 through 7005 of the Families First Act and Section 2301 of the CARES Act, and (iv) not sought (nor has any Affiliate that would be aggregated with the Company or any Subsidiary thereof and treated as one employer for purposes of Section 2301 of the CARES Act sought) a covered loan under paragraph (36) of Section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as added by Section 1102 of the CARES Act.

 

(j)

None of the Company nor any of its Subsidiaries has taken or failed to take any action that would reasonably be expected to adversely affect the tax-free status of the Internal Reorganization Transactions, the Contribution or the Distribution, each as defined in the Tax Matters Agreement dated as of June 28, 2018, by and between Autoliv, Inc. and the Company (the “Tax Matters Agreement”).

 

(k)

Neither the Company nor any of its Subsidiaries has (i) any material liability under Section 2.2(c) of the Tax Matters Agreement, (ii) taken any action described in Section 8.3 of the Tax Matters Agreement without first obtaining a Supplemental Tax Opinion (as defined in the Tax Matters Agreement) or (iii) received a notice described in Section 7.1 of the Tax Matters Agreement.

 

(l)

Since the Spin Date, neither the Company nor any of its Subsidiaries has been a “distributing corporation” or a “controlled corporation,” or has otherwise participated, in a transaction intended to qualify under Section 355 of the Code.

 

(m)

For purposes of this Section 4.15, all representations and warranties made with respect to the Company and its Subsidiaries are equally made with respect to any predecessor of the Company or any of its Subsidiaries that became such a predecessor following the Spin Date and any former Subsidiaries of the Company (with respect to all applicable periods following the Spin Date during or with respect to which such Subsidiaries were, or were treated as, Subsidiaries of the Company under applicable Tax Laws).

 

The representations and warranties set forth in this Section 4.15 and, to the extent relating to Tax matters, Section 4.12, are the Company’s sole and exclusive representations with respect to Tax matters in this Agreement.

 

(a)

Section 4.16(a) of the Company Disclosure Letter sets forth a list, as of the date hereof, of each Company Material Contract.  For purposes of this Agreement, “Company Material Contract” means any Contract (other than any Company Benefit Plan, Contracts related to any Leased Real Property or Contracts solely between or among the Company and/or any of its wholly owned Subsidiaries) to which the Company or any of its Subsidiaries is a party or their respective properties or assets are bound, except for this Agreement, that:

 

(i)          constitutes a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);

 

(ii)        is (A) a joint venture, alliance or partnership agreement, limited liability company agreement, collaboration agreement or similar Contract that is material to the operation of the Company and its Subsidiaries, taken as a whole or (B) the Specified Agreement;

 

(iii)       is a Contract that expressly limits or restricts the ability of the Company or any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be;

 

(iv)        is a collective bargaining agreement with a labor union (other than industry-wide agreements outside of the United States);

 

(v)         is a loan, guarantee of indebtedness or credit agreement, note, mortgage, security agreement, pledge, indenture or other binding commitment relating to indebtedness for borrowed money or the deferred purchase price of property or services or other similar financial Contract (other than (A) those related to trade payables arising in the ordinary course of business or (B) indebtedness for borrowed money less than $20 million individually);

(vi)      is an acquisition agreement, asset purchase agreement, stock purchase agreement or other similar agreement (other than agreements to purchase or acquire inventory in the ordinary course of business) (A) entered into during the two (2) year period prior to the date hereof pursuant to which the Company or any of its Subsidiaries have ongoing material obligations or liabilities, including deferred purchase price payments, earn-out payments or indemnification obligations or (B) which has not yet been consummated, pursuant to which (i) the Company or any Subsidiary of the Company reasonably expects that it is required to pay total consideration (including assumption of debt) after the date hereof in excess of $25 million or (ii) any other Person has the right to acquire any assets of the Company or any of its Subsidiaries (or any interests therein) after the date of this Agreement with a purchase price of more than $25 million;

 

(vii)       is a Contract entered into outside the ordinary course of business that involves future expenditures, commitments or receipts by the Company or any of its Subsidiaries of more than $25 million in any (1) one-year period that cannot be terminated on less than ninety (90) days’ notice without material payment or penalty;

 

(viii)      is a material Contract with a Key Company Customer or Key Company Supplier; provided that such Contracts are not required to be listed on Section 4.16(a)(viii) of the Company Disclosure Letter;

 

(ix)       is a Contract that prohibits the Company or any of its Subsidiaries from (A) engaging or competing in any material line of business, in any geographical location or with any Person, (B) acquiring or disposing of securities of another Person, (C) selling any products or services of or to any other Person in any geographic region or (D) contains an exclusivity or other clause that restricts the operations of the business of the Company and its Subsidiaries in a material manner; provided that such Contracts described in clause (D) are not required to be listed on Section 4.16(a)(ix) of the Company Disclosure Letter;

 

(x)         is a Contract that grants any rights of first refusal or rights of first offer to any Person with respect to the sale, transfer or other disposition of any business or line of business or material assets or properties of the Company or any of its Subsidiaries; provided that such Contracts are not required to be listed on Section 4.16(a)(x) of the Company Disclosure Letter;

 

(xi)        is an agreement pursuant to which the Company or any of its Subsidiaries is granted or grants a right to use material Intellectual Property Rights (other than Contracts (A) in which grants of Intellectual Property Rights are incidental to such Contracts and/or (B) granting rights to use commercially available hardware or software including pursuant to shrink wrap, click through or other standard licensing terms);

 

(xii)       is a Contract pursuant to which the Company or its Subsidiaries are obligated to pay to any Third Party royalties or other use fees on a per Company Product unit basis (A) upon or for the use or exploitation of any Company Intellectual Property Rights or (B) upon the manufacturing, use, sale, lease, license, distribution, provision, sale or other disposition or exploitation of any Company Product, in each case under Contracts for which the total of such payments under such Contracts exceeded $15 million in the last calendar year;

 

(xiii)      is a Contract to which the Company or any of its Subsidiaries is a party or which is binding on the Company or any of its Subsidiaries that directly or indirectly obligates (i) an Affiliate (including any future Affiliates) of the Company that is not a Subsidiary of the Company or (ii) the Company or any of its Subsidiaries to cause or require an Affiliate (including any future Affiliates) of the Company that is not a Subsidiary of the Company, in any such case, to (A) grant to any other Person (including the counterparty to such Contract and/or its Affiliates) any right to or with respect to any Intellectual Property Right or (B) be bound by, or subject to, any covenant (including any covenant not to ▇▇▇ or assert rights) with respect to any Intellectual Property Rights (any such Contract described in clauses (i) or (ii), a “Specified IP Contract”), which Specified IP Contract is material to the Company and its Subsidiaries; or

 

(xiv)      is any Contract that includes any Affiliate of the Company as a counterparty or third party beneficiary and that would be required to be disclosed under Item 404 of Regulation S-K of the SEC.

 

(b)

Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract where such breach or default would have a Company Material Adverse Effect.  As of the date hereof, to the Knowledge of the Company, (i) no other party to any Company Material Contract is in material breach of or material default under the terms of any Company Material Contract, (ii) no event or circumstance has occurred that, with notice or lapse of time or both, would constitute any event of default thereunder, where such breach or default would have a Company Material Adverse Effect and (iii) neither the Company nor any Subsidiary has received any written notice of a material breach or material default from a counterparty to any Company Material Contract or written notice of an express intention that such counterparty intends to terminate, suspend, cancel or materially and adversely modify its business relationship with the Company and/or its Subsidiaries in connection with a Company Material Contract or the terms thereof.  Each Company Material Contract is a valid and binding obligation of the Company or its Subsidiary and, to the Knowledge of the Company, the other parties thereto, except such as would not have a Company Material Adverse Effect; provided that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights and remedies generally and (ii) the remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.  Complete and correct copies of each Company Material Contract (other than any with respect to Section 4.16(a)(viii), Section 4.16(a)(ix) or Section 4.16(a)(x)), as amended and supplemented, have been filed with the SEC or made available by the Company to the Acquiring Parties, in each case prior to the date hereof.

 

 

(a)

The Company SEC Documents list all material real property owned by the Company or any of its Subsidiaries (collectively, including the improvements thereof, the “Owned Real Property”).  Except as would not be material to the Company and its Subsidiaries, taken as a whole, neither the Company nor any of its Subsidiaries is a party to a contract of sale to purchase real property in which the conveyance contemplated therein has not yet been consummated, and there are no outstanding options or rights of first refusal or rights of first offer to purchase the parcel, or any portion thereof or interest therein.

 

(b)

Section 4.17(b) of the Company Disclosure Letter sets forth a true, correct and complete list of (i) all material real property leased by the Company or any of its Subsidiaries (collectively, including the improvements thereon, the “Leased Real Property”), and (ii) all leases, subleases and material licenses or other occupancy agreements, including all amendments and modifications thereto (collectively, the “Real Property Leases”) pursuant to which the Company or any of its Subsidiaries leases, subleases, licenses or otherwise occupies (whether as a tenant, subtenant or pursuant to other occupancy arrangements) the Leased Real Property.

 

(c)

Except as would not be material to the Company and its Subsidiaries, taken as a whole, or as set forth in Section 4.17(c) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is party to any lease or sublease to any third party demising to such third party any right to occupy all or any portion of any of the Owned Real Property or the Leased Real Property.

 

(d)

Except as would not have a Company Material Adverse Effect, the Company and/or its Subsidiaries have good fee simple title to all Owned Real Property and valid leasehold, subleasehold or license interests in all Leased Real Property free and clear of all Liens, except Permitted Liens.  The Owned Real Property and the Leased Real Property constitute all of the real property used by the Company or any of its Subsidiaries in the operation of their respective businesses.

 

(e)

Neither the Company nor any of its Subsidiaries has received notice of any default under any of the material provisions of any of the Real Property Leases that has not been cured, and, to the Knowledge of the Company, except as would not have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries has received any written communication from, or given any written communication to, any third party that is a party to any of the Real Property Leases alleging that the Company or any of its Subsidiaries or such other party, as the case may be, is in default under such Real Property Lease.

 

(f)

There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings, lawsuits or administrative actions relating to any portion of the Owned Real Property or the Leased Real Property.

 

 

(a)

The Company and its Subsidiaries are in compliance, and have been in compliance since the Spin Date, with all applicable Environmental Laws, including possessing all Company Permits required for their operations under applicable Environmental Laws.  All such Company Permits are in full force and effect and no suspension or cancellation of any of such Company Permits is pending or, to the Knowledge of the Company, threatened;

 

(b)

There is no pending or threatened Action pursuant to any Environmental Law against the Company or any of its Subsidiaries;

 

(c)

Since the Spin Date through the date of this Agreement, neither the Company nor any of its Subsidiaries has received written notice from any Person, including any Governmental Authority, alleging that the Company or any of its Subsidiaries has been or is in violation or potentially in violation of any applicable Environmental Law or otherwise may be liable under any applicable Environmental Law, which violation or liability is unresolved;

 

(d)

Neither the Company nor any of its Subsidiaries is a party or subject to any Order pursuant to Environmental Law for which obligations of the Company or any of its Subsidiaries remain outstanding; and

 

(e)

To the Knowledge of the Company, with respect to the Owned Real Property and the Leased Real Property, any property formerly owned or leased by the Company, and any property at which the Company arranged for the disposal of Hazardous Materials, there have been no Releases on or underneath any of such real properties that has caused environmental contamination at such real properties that is reasonably likely to result in an obligation to investigate or remediate such environmental contamination pursuant to applicable Environmental Law.

 

The representations and warranties set forth in this Section 4.18, Sections 4.5 through 4.10, Section 4.16 and Section 4.24 are the Company’s sole and exclusive representations with respect to Environmental Laws or Releases in this Agreement.

 

 

(a)

Section 4.19(a) of the Company Disclosure Letter lists the top ten (10) customers, measured by revenue, of the Company and its Subsidiaries (taken as a whole) for the year ended December 31, 2020 (the “Key Company Customers”).

 

(b)

Section 4.19(b) of the Company Disclosure Letter lists the top ten (10) suppliers, measured by dollar volume of purchases, of the Company and its Subsidiaries (taken as a whole) for the year ended December 31, 2020 (“Key Company Suppliers”).

 

(c)

Except as would not be material to the Company and its Subsidiaries, taken as a whole, since December 31, 2020, (A) no Key Company Supplier has terminated, suspended, cancelled or materially and adversely modified or, to the Knowledge of the Company, threatened in writing to terminate, suspend, cancel or materially and adversely modify, its business relationship with the Company and/or any of its Subsidiaries in connection with, or the terms of a Company Material Contract and (B) no Key Company Customer has been terminated, suspended, cancelled or materially and adversely modified or, to the Knowledge of the Company, threatened in writing to terminate suspend, cancel, materially and adversely modify, its business relationship with the Company and/or any of its Subsidiaries in connection with, or the terms of a Company Material Contract.  As of the date of this Agreement, there are no unresolved material claims or disputes pending between the Company and/or any of its Subsidiaries, on the one hand, and any Key Company Supplier or Key Company Customer, on the other hand.

 

 

(a)

Since the Spin Date, neither the Company nor any of its Subsidiaries has received written notice from (i) any of its customers that such customer has, (A) received any written notice or allegation from a Governmental Authority, (B) been a party or subject to any Action brought or initiated by a Governmental Authority or (C) been threatened in writing by a Governmental Authority with any Action or investigation or (ii) a Governmental Authority that contained allegations or threatened or stated a basis for initiating an Action or investigation, in each of the foregoing clauses (i) and (ii), with respect to the failure or alleged failure of any product produced, sold or distributed by or on behalf of the Company or any of its Subsidiaries to meet applicable manufacturing, quality or labeling standards established by Law, except, in each case, that would not be material to the Company and its Subsidiaries, taken as a whole.

 

(b)

Since the Spin Date, except as set forth on Section 4.20 of the Company Disclosure Letter, (i) no product or services being produced or sold by or on behalf of the Company or any of its Subsidiaries has been the subject of any recall (whether or not ordered by a Governmental Authority), suspension, market withdrawal, safety alert or similar action that is material to the Company and its Subsidiaries, taken as a whole, and (ii) the Company and its Subsidiaries have not received any written notice from any customer or Governmental Authority in connection with a claim or allegation against the Company or its Subsidiaries, in each case related to any such recall, except in each of the foregoing clauses (i) and (ii) for any such recalls that would not, be material to the Company and its Subsidiaries, taken as a whole.

 

 

(a)

Since the Spin Date and except as would not have a Company Material Adverse Effect, neither (a) the Company, nor any of its Subsidiaries, nor any director, officer, or (b) to the Knowledge of the Company, employee of the Company or any of its Subsidiaries or any Representative while acting for or on behalf of any of the foregoing, has directly or, indirectly (i) made, accepted, promised, or authorized any unlawful payment to or from any foreign or domestic government officials or employees or to/from any foreign or domestic political parties or campaigns, or to or from any private third parties, in violation of any provisions of any applicable anti-bribery Laws, including the U.S. Foreign Corrupt Practices Act of 1977, and the rules and regulations thereunder (collectively, the “FCPA”) or the UK ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (the “Bribery Act”), or (ii) taken any action or engaged in any conduct, activity or practice for or on behalf of the Company or any of its Subsidiaries that would otherwise constitute a violation of or an offense under any applicable anti-bribery Laws, including the FCPA and the Bribery Act.  The Company and its Subsidiaries maintain, and since the Spin Date, have maintained policies and procedures that are reasonably designed to ensure compliance with anti-bribery Laws.  Neither the Company nor any of its Subsidiaries have been notified of any actual, pending, or threatened civil, criminal, or administrative actions or governmental investigations, inquiries or enforcement actions, or made any voluntary disclosures to any Governmental Authority, involving the Company or any Subsidiary of Company relating to alleged violations of applicable anti-bribery Laws, including the FCPA and the Bribery Act.

 

(b)

Except as would not have a Company Material Adverse Effect, none of the Company or any of its Subsidiaries, or, to the Knowledge of the Company, any of their Representatives or any other Persons, in each case to the extent acting or purporting to act for and on behalf of any of the Company or any of its Subsidiaries, is or has been, since the Spin Date, (i) a Person named on any Sanctions Laws-related or Export Control Laws-related list of designated Persons; (ii) located, organized or resident in a country or territory which is itself the subject of or target of any Sanctions Laws; (iii) an entity owned, directly or indirectly, individually or in the aggregate, fifty percent (50%) or more by one or more Persons on any Sanctions Laws-related list of designated Persons or Persons described in clause (ii); (iv) transacting business with or on behalf of any Person described in clauses (i)-(iii) or any country or territory described in clause (ii) in violation of Sanctions Laws; or (v) otherwise in violation of Sanctions Laws or Export Control Laws.

Section 4.22

 

 

 

 

 

 

(a)

Except for the representations and warranties expressly set forth in this Article IV or any certificate delivered hereunder, neither the Company nor any other Person on behalf of the Company makes, or has made (and the Company, on behalf of itself, each of the Company’s Subsidiaries and their respective Affiliates and Representatives, hereby disclaims), any express or implied representation or warranty with respect to the Company or any of the Company’s Subsidiaries or with respect to the accuracy or completeness of any information provided, or made available, to the Acquiring Parties, Merger Sub or any of their Affiliates or Representatives, including with respect to their business, operations, assets, liabilities, conditions (financial or otherwise), prospects or otherwise in connection with this Agreement, the Merger or the other transactions contemplated by this Agreement, and the Acquiring Parties and Merger Sub and their respective Representatives and Affiliates are not relying on, and waive any claim based on reliance on, any representation, warranty or other information of the Company, any of the Company’s Subsidiaries or any other Person except for those expressly set forth in this Article IV or any certificate delivered hereunder.  Except for the representations and warranties expressly set forth in this Article IV or any certificate delivered hereunder, none of the Company, any of the Company’s Subsidiaries or any other Person makes (and the Company, on behalf of itself, each of the Company’s Subsidiaries, and their respective Affiliates and Representatives, hereby disclaims) any express or implied representation or warranty (including as to completeness or accuracy) to the Acquiring Parties or Merger Sub with respect to, and none of the Company, the Company’s Subsidiaries or any other Person shall be subject to, any liability to the Acquiring Parties, Merger Sub or any other Person resulting from, the Company, the Company’s Subsidiaries or their respective Representatives providing or making available to the Acquiring Parties, Merger Sub or any of their Affiliates or their respective Representatives, or resulting from the omission of, any estimate, projection, prediction, forecast, data, financial information, memorandum, presentation or any other materials or information, including any materials or information made available to the Acquiring Parties and/or their Representatives or Affiliates in connection with presentations by the Company’s management or information made available on any electronic data room for “Project Hercules II” and maintained by the Company for purposes of the Merger and the other transactions contemplated by this Agreement, including the electronic data room hosted by Datasite under the title Hercules II (collectively, the “VDR”).

 

(b)

Except for the representations and warranties contained in Article V or any certificate delivered hereunder, the Company acknowledges and agrees that (i) none of the Acquiring Parties, their respective Subsidiaries (including Merger Sub) or any other Person on behalf of any of the Acquiring Parties makes, or has made, any express or implied representation or warranty with respect to any of the Acquiring Parties or Merger Sub, including with respect to their business, operations, assets, liabilities, conditions (financial or otherwise), prospects or otherwise in connection with this Agreement, the Merger or the other transactions contemplated by this Agreement and the Company is not relying on any representation, warranty or other information of any Person except for those expressly set forth herein and (ii) no Person has been authorized by any of the Acquiring Parties, their respective Subsidiaries (including Merger Sub) or any other Person on behalf of any of the Acquiring Parties to make any representation or warranty relating to any of the Acquiring Parties or Merger Sub or their respective business or otherwise in connection with this Agreement and Merger, and if made, such representation or warranty shall not be relied upon by the Company as having been authorized by either such entity.

 

ARTICLE V

 

 

Each of the Acquiring Parties and Merger Sub hereby represent and warrant to the Company, in the case of QUALCOMM, on a joint and several basis, and, in the case of SSW and Merger Sub, on a several basis, in each case as of the date hereof, as follows:

 

 

 

(a)

Each of the Acquiring Parties and Merger Sub have all necessary entity power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, including the Merger.  The execution, delivery and performance of this Agreement by each of the Acquiring Parties and Merger Sub, and the consummation by each of the Acquiring Parties and Merger Sub of the transactions contemplated by this Agreement, have been duly and validly authorized by all necessary entity action by each of the Acquiring Parties and Merger Sub, and no other entity Action on the part of any one or more of the Acquiring Parties and Merger Sub is necessary to authorize the execution, delivery and performance of this Agreement by each of the Acquiring Parties and Merger Sub and the consummation by each of the Acquiring Parties and Merger Sub of the transactions contemplated by this Agreement.  This Agreement has been duly executed and delivered by each of the Acquiring Parties and Merger Sub and, assuming due authorization, execution and delivery of this Agreement by the other party hereto, constitutes a legal, valid and binding obligation of each of the Acquiring Parties and Merger Sub, enforceable against each of the Acquiring Parties and Merger Sub in accordance with its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights and remedies generally and (ii) the remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

 

(b)

The board of directors or similar governing body of each of the Acquiring Parties and Merger Sub has unanimously (i) approved this Agreement, the Merger and the other transactions contemplated hereby, (ii) determined that the Merger and the other transactions contemplated hereby, taken as a whole, are advisable and in the best interests of each of the Acquiring Parties, Merger Sub and their respective stockholders or other equityholders, as applicable and (iii) in the case of SSW and Merger Sub, recommended the adoption of this Agreement by Merger Sub’s sole stockholder.  The sole stockholder of Merger Sub, which is a wholly owned Subsidiary of SSW, has adopted this Agreement and the consummation of the transactions contemplated hereby, including the Merger, and no further vote of, or consent by, SSW or Merger Sub is required.  No vote of, or consent by, the holders of any class or series of capital stock of any one or more of the Acquiring Parties is necessary to authorize the execution, delivery and performance by each of the Acquiring Parties of this Agreement and the consummation of the transaction contemplated hereby or otherwise required by the amended and restated articles of incorporation or bylaws of any one or more of the Acquiring Parties or applicable Law (including any stockholder approval provisions under the rules of any applicable securities exchange).

 

 

(a)

Neither the execution and delivery of this Agreement by each of the Acquiring Parties and Merger Sub nor the consummation by each of the Acquiring Parties and Merger Sub of the transactions contemplated hereby will (i) violate any provision of any one or more of the Acquiring Parties’ or their respective Subsidiaries’ certificate of incorporation or bylaws (or equivalent organizational documents), (ii) assuming that the Consents, registrations, declarations, filings and notices referred to in Section 5.3(b) have been obtained or made, any applicable waiting periods referred to therein have expired and any condition precedent to any such Consent has been satisfied, conflict with or violate any Law applicable to any one or more of the Acquiring Parties and any of their respective Subsidiaries (including Merger Sub) or by which any property or asset of any one or more of the Acquiring Parties or any of their respective Subsidiaries (including Merger Sub) is bound or affected or (iii) result in any breach of, or constitute a default (with or without notice or lapse of time, or both) under, or give rise to any right of termination, acceleration or cancellation of, any material Contract to which any one or more of the Acquiring Parties or any of their respective Subsidiaries (including Merger Sub) is a party, or by which any of their respective properties or assets is bound, other than, in the case of clauses (ii) and (iii), any such conflict, violation, breach, default, termination, acceleration or cancellation that would not have an Acquiring Party Material Adverse Effect.

 

(b)

No Consent of, or registration, declaration or filing with or notice to, any Governmental Authority is required to be obtained or made by or with respect to any of the Acquiring Parties or any of its Subsidiaries (including Merger Sub) in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby, other than (i) the filing with the SEC of such reports under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby, (ii) the filing of the Certificate of Merger with the Secretary in accordance with the DGCL, (iii) such filings as may be required in connection with the Taxes described in Section 8.6, (iv) filings with the Nasdaq, (iv) such other items required solely by reason of the participation of the Company in the transactions contemplated hereby, (vii) compliance with and filings or notifications under the HSR Act or other Antitrust Laws and Investment Screening Laws and (viii) such other Consents, registrations, declarations, filings or notices the failure of which to be obtained or made would not have an Acquiring Party Material Adverse Effect.

 

 

 

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Upon reasonable notice, the Company shall (and shall cause each of its Subsidiaries to) afford to the Acquiring Parties and its Representatives all reasonable access, at the Acquiring Parties’ sole cost and expense, in a manner not disruptive in any material respect to the operations of the business of the Company and its Subsidiaries, during normal business hours and upon reasonable advance notice throughout the period commencing on the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of Article VIII, to the properties, personnel, contracts, books and records (including Tax Returns and workpapers) of the Company and its Subsidiaries and, during such period, shall (and shall cause each of its Subsidiaries to) furnish promptly to such Representatives all information (to the extent not publicly available) concerning the business, properties and personnel of the Company and its Subsidiaries (including accounting, tax, financing, operating, environmental and other data and information) as may reasonably be requested, including, but not limited to, such access and information reasonably required by the Acquiring Parties and their respective Representatives in connection with the Arriver/Non-Arriver Separation Planning and Non-Arriver Extraction; provided, however, that nothing herein shall require the Company or any of its Subsidiaries to disclose any information to the Acquiring Parties or Merger Sub if such disclosure would, in the reasonable judgment of the Company, (i) cause significant competitive harm to the Company or its Subsidiaries if the transactions contemplated by this Agreement are not consummated, (ii) violate applicable Law or the provisions of any agreement to which the Company or any of its Subsidiaries is a party as of the date hereof or (iii) jeopardize any attorney-client or other legal privilege; provided, in each case, that the Company shall give the Acquiring Parties notice of any information so withheld and the parties hereto shall cooperate in seeking to allow disclosure of such information in a manner that is not reasonably likely to cause significant competitive harm, violate applicable Law or Contract or cause any waiver of privilege; provided, further, that nothing herein shall authorize the Acquiring Parties or their respective Representatives to undertake any environmental testing involving the sampling of soil, groundwater, air or other environmental medium or similar invasive techniques at any of the properties owned, operated or leased by the Company or its Subsidiaries.  Notwithstanding anything herein to the contrary, the Company shall not be required to provide access or make any disclosure to the Acquiring Parties pursuant to this Section 6.4 to the extent that such access or information is reasonably pertinent to a litigation where the Company or any of its Affiliates, on the one hand, and any of the Acquiring Parties or any of their respective Affiliates, on the other hand, are adverse parties.  No investigation or access permitted pursuant to this Section 6.4 shall affect or be deemed to modify any representation or warranty made by the Company hereunder.  Each of the Acquiring Parties agrees that it will not, and will cause its Representatives and Affiliates (including Merger Sub) not to, use any information obtained pursuant to this Section 6.4 for any competitive or other purpose unrelated to the consummation of the transactions contemplated by this Agreement.

Except as otherwise expressly provided in this Agreement, from the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of Article VIII, the Company shall not, and shall cause its Subsidiaries and each of its and their respective directors, officers and controlled Representatives not to, and shall instruct its other Representatives not to, directly or indirectly, (i) initiate, solicit, encourage or knowingly facilitate the making of any Competing Proposal or any inquiries that could reasonably be expected to lead to a Competing Proposal, (ii) engage in negotiations or discussions with (it being understood that the Company may inform Persons of the provisions contained in this Section 6.5), or furnish any nonpublic information to, or access to the business, properties, personnel, assets, books or records of the Company or any of its Subsidiaries to, any Third Party that has made, is seeking to make, has informed the Company of any intention to make or has publicly announced an intent to make any Competing Proposal or any inquiry or request that would reasonably be expected to lead to a Competing Proposal, (iii) grant any waiver of, terminate, amend or release any standstill or similar obligation of any Third Party with respect to the Company or any of its Subsidiaries (and the Company shall enforce any and all such provisions; provided that if the Company Board determines in good faith that failure to take such action would be inconsistent with its fiduciary duties under applicable Law, then the Company may waive any such standstill or similar agreement to the extent necessary to permit the Person bound by such provision or agreement to make a Competing Proposal to the Company Board (including, for the avoidance of doubt, in an Acceptable Confidentiality Agreement)), (iv) take any action to make the provisions of any Takeover Law, or any restrictive provision of any applicable anti-takeover provision in the Company’s articles of incorporation or bylaws, inapplicable to any transactions contemplated by a Competing Proposal (including approving any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the DGCL) or (v) approve or recommend, or allow the Company or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement, commitment, arrangement or understanding with respect to any Competing Proposal or any offer or proposal that could reasonably be expected to lead to a Competing Proposal (other than an Acceptable Confidentiality Agreement as permitted hereunder) or requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement (each, an “Alternative Acquisition Agreement”).  Any violation of the restrictions set forth in this Section 6.5 by any Representative of the Company shall be deemed to be a breach of this Section 6.5 by the Company.

Notwithstanding anything to the contrary in this Agreement, at any time after the date hereof and prior to the receipt of the Company Stockholder Approval, in the event that (x) the Company receives an unsolicited Competing Proposal from any Person that did not result from or follow a breach of this Section 6.5 and (y) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that such Competing Proposal either constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal, and that the failure to take the actions described in the subsequent clauses (i) or (ii) would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable Law, then the Company and the Company Board and their respective Representatives may (i) contact such Person to clarify the terms and conditions of such Competing Proposal and (ii) engage in negotiations or discussions with, or furnish any information and other access to, any Person making such Competing Proposal and its Representatives or potential sources of financing pursuant to customary confidentiality arrangements if the Company Board of directors determines in good faith (after consultation with its legal counsel and financial advisors) that such Competing Proposal either constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal; provided that (A) prior to furnishing any nonpublic information concerning the Company or its Subsidiaries, the Company receives from such Person, to the extent such Person is not already subject to a confidentiality agreement with the Company as of the date hereof, an executed confidentiality agreement with such Person that is not less favorable in any material respect to the Company than in the Confidentiality Agreement (including with respect to non-solicitation of employees and standstill provisions) and, if commercially sensitive information is to be provided to such Person, and such person is a competitor of the Company, a clean team agreement appropriate to address the competitive sensitivities of such competitor (such confidentiality agreement, and, if applicable, clean team agreement, together an “Acceptable Confidentiality Agreement”) and (B) any such material nonpublic information so furnished shall be promptly made available to the Acquiring Parties to the extent it was not previously made available to the Acquiring Parties or its Representatives.  Information that was made available to the Acquiring Parties pursuant to the “Clean Team” section of the VDR shall not be made available to such Person that is a competitor of the Company except pursuant to a clean team agreement in a form reasonably acceptable to the Acquiring Parties.

(i)          in response to an Intervening Event, the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the failure to take such action would be inconsistent with the Company’s directors’ fiduciary duties under applicable Law; or

(ii)         (x) the Company receives an unsolicited Competing Proposal from any Person that did not result from or follow a breach of this Section 6.5 and has not been withdrawn or otherwise expired, and (y) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that such Competing Proposal constitutes a Superior Proposal, and that the failure to take such action would be inconsistent with the Company’s directors’ fiduciary duties under applicable Law;

provided, however, that no Adverse Recommendation Change may be made and, in the case of a Superior Proposal, the Company may not terminate this Agreement pursuant to Section 8.1(c)(ii), unless and until: (i) after the fourth (4th) Business Day (the “Notice Period”) following the Acquiring Parties’ receipt of a written notice from the Company advising the Acquiring Parties that the Company Board intends to make an Adverse Recommendation Change (a “Notice of Adverse Recommendation”), including specifying the Intervening Event or Superior Proposal and, in the case of a Superior Proposal, the identity of the Third Party making such a Superior Proposal, the terms and conditions of any such Superior Proposal and a true and complete copy of the most current version of such Superior Proposal (including any proposed agreement or other offer documents), (ii) during the Notice Period, the Company and its Representatives negotiate in good faith with the Acquiring Parties and its Representatives (to the extent the Acquiring Parties desire to negotiate) to make adjustments to the terms and conditions of this Agreement so that either the failure to make an Adverse Recommendation Change in response to such Intervening Event would no longer be reasonably expected to be inconsistent with the fiduciary duties of the Company Board under applicable law or such Competing Proposal would cease to constitute a Superior Proposal and (iii) in determining whether to make such Adverse Recommendation Change, the Company Board shall take into account, in good faith, any changes to the terms of this Agreement timely proposed by the Acquiring Parties in response to a Notice of Adverse Recommendation.  Any change to any of the financial terms (including the form, amount and timing of payment of consideration) or any other material change to the terms of such Competing Proposal shall require a new Notice of Adverse Recommendation and commence a new Notice Period, and the Company shall be required to comply again with the requirements of this Section 6.5(f) to the extent all references to four (4) Business Days shall be revised to two (2) Business Days.

 As soon as reasonably practicable and, in any event, within one (1) Business Day after the date of this Agreement, the Company shall, and shall cause its Subsidiaries to, as applicable, (i) terminate all solicitation efforts with respect to the proxy statement on Schedule 14A initially filed by the Company with the SEC on August 19, 2021 and take all reasonable action to withdraw such proxy statement, and (ii) cancel the special meeting of the Company’s stockholders contemplated by the Magna Agreement and provide notice of such cancellation to the Company’s stockholders, as required by law or reasonably requested by the Acquiring Parties.

(i)         “Competing Proposal” shall mean any proposal or offer made by any Person (other than the Acquiring Parties, Merger Sub or any of their respective Affiliates) or group of Persons as defined in Section 13(d)(3) of the Exchange Act (A) to purchase or otherwise acquire, directly or indirectly, in one transaction or a series of transactions, (x) beneficial ownership (as defined under Section 13(d) of the Exchange Act) of more than twenty percent (20%) of any class of equity securities of the Company (by vote or value) pursuant to a merger, consolidation or other business combination, sale of shares of capital stock, tender offer, exchange offer or similar transaction or (y) any one or more assets or businesses of the Company and its Subsidiaries that constitute more than twenty percent (20%), of the revenues, earnings or assets of the Company and its Subsidiaries, taken as a whole, (B) with respect to the issuance, sale or other disposition, directly or indirectly, to any Person (other than the Acquiring Parties, Merger Sub or any of their respective Affiliates or group of Persons as used in Section 13(d)(3) of the Exchange Act), of securities (or options, rights, or warrants to purchase, or securities convertible into or exchangeable for, such securities) representing more than twenty percent (20%) of the voting power of the Company or (C) with respect to any merger, consolidation, business combination, recapitalization, reorganization, liquidation, dissolution or other transaction involving the Company or its Subsidiaries pursuant to which any Person or group of Persons would have beneficial ownership (as defined pursuant to Section 13(d)(3) of the Exchange Act) of securities representing more than twenty percent (20%) of the total outstanding equity securities of the Company (by vote or value) after giving effect to the consummation of such transaction.

(iii)        “Intervening Event” means an event, occurrence, change, effect, condition, development or state of facts or circumstances that materially affects the Company and its Subsidiaries taken as a whole (other than related to a Competing Proposal or Superior Proposal, or any proposal which constitutes or could reasonably be expected to lead to a Competing Proposal or Superior Proposal) occurring after the date hereof that did not result from a breach of this Agreement and that was neither known to, nor reasonably foreseeable by the Company Board as of the date of this Agreement (or if known, the consequences of which were not known or reasonably foreseeable to the Company Board of directors as of the date of this Agreement) (where, for the avoidance of doubt, the following shall not be taken into account in determining whether an Intervening Event has occurred (x) the fact in and of itself that the Company meets or exceeds projections, earnings guidance, forecasts or estimates and (y) changes in and of themselves in the price of the Company Common Stock or the trading volume thereof).

Section 6.9

Employee Matters.

Without limiting Section 6.4 (Access to Information; Confidentiality), from and after the execution of this Agreement until the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except as may be required by Law (including Antitrust Laws), the Company shall, and shall cause its Subsidiaries and Representatives to, use its reasonable efforts to cooperate with the Acquiring Parties and their respective Representatives, following reasonable advance written notice from the Acquiring Parties, in connection with the Arriver/Non-Arriver Separation Planning so that the Non-Arriver Extraction and then the Arriver Sale can be implemented as promptly as practicable after the Closing, including reasonably and subject to Section 6.10(c): (i) cooperating with any reasonable due diligence process as reasonably requested in writing by the Acquiring Parties, including providing additional information, copies of agreements and materials as may reasonably be requested in writing and instructing appropriate members of senior management, other personnel and advisors of the Company and its Subsidiaries to participate in meetings, if any (it being understood that such meetings may occur telephonically or by videoconferencing) in connection with the Arriver/Non-Arriver Separation Planning upon reasonable advance written notice and at mutually agreeable dates and times; (ii) providing pertinent historical financial and Tax information as is reasonably available to the Company and requested in writing by the Acquiring Parties in connection with the Arriver/Non-Arriver Separation Planning; (iii) assisting the Acquiring Parties in their preparation of customary documentation required in connection with the implementation of the Arriver/Non-Arriver Separation Planning, the Non-Arriver Extraction and the Arriver Sale (including preparing customer communications and notices to be sent upon consummation of the Non-Arriver Extraction and then the Arriver Sale); (iv) to the extent requested in writing by the Acquiring Parties, cooperating with and assisting the Acquiring Parties in obtaining any necessary or desirable authorization, consent and approval in connection with the transactions contemplated by the Arriver/Non-Arriver Separation Planning, the Non-Arriver Extraction and the Arriver Sale; (v) cooperating with and assisting the Acquiring Parties in preparing for, and preparing for, the undertaking of any necessary or desirable assignments or transfers in connection with the Non-Arriver Extraction and the Arriver Sale; (vi) preparing any resolutions or consents necessary or desirable to approve or authorize the execution of the Non-Arriver Extraction and the Arriver Sale, or preparing any certificate, document, instrument or agreement or any change or modification of any existing certificate, document, instrument or agreement or preparing for the taking of any other similar action necessary or desirable in connection with the Arriver/Non-Arriver Separation Planning, Non-Arriver Extraction and the Arriver Sale (other than any of such actions contemplated to be taken by the Company or its Subsidiaries pursuant to this clause (vi) with respect to which the Company objects to taking in good faith, provided that in such case the Company shall promptly notify the Acquiring Parties of its reason for such good faith objection, and the Acquiring Parties shall have the opportunity to modify the requested action (or request a different action) in order to address the reason for the Company’s good faith objection and if the Company’s good faith objection is not satisfactorily addressed (in the Company’s good faith judgment), the Company shall not be required to take such action; (vii) assisting in developing a step plan for the Arriver/Non-Arriver Separation Planning, including providing information reasonably requested by QUALCOMM and reasonable access to personnel and advisors in connection therewith; and (viii) obtaining the approval of QUALCOMM prior to materially changing the Company’s legal entity structure, such approval not to be unreasonably withheld, conditioned or delayed.

Without limiting Section 6.4 (Access to Information; Confidentiality), from and after the execution of this Agreement until the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except as may be required by Law (including Antitrust Laws), the Company shall, and shall cause its Subsidiaries and Representatives to, cooperate in good faith with the Acquiring Parties and their respective Representatives by: (i) setting forth in reasonable detail the Company’s good faith estimate of the costs and expenses of the Company or its Subsidiaries or Representatives of undertaking any specified action to implement the transactions set forth on Section 6.10(b) of the Company Disclosure Letter (any such specified action, a “Tax Action”) following a reasonable written request from the Acquiring Parties regarding such Tax Action, which estimate shall include, among other items, any associated reduction in the value of the Company’s or its Subsidiaries’ Tax attributes, increase in the Company’s or its Subsidiaries’  Tax liability (or risk thereof), costs and expenses of the Company or its Subsidiaries or Representatives of implementing (and reinstating, to the extent possible, the status quo ante of) the Tax Action, and potential reduction in the value of the Company or any of its Subsidiaries to an alternative acquiror due to the Tax Action (such estimate, as determined by the Company acting reasonably and in good faith in its sole discretion, the “Tax Action Cost”); and (ii) reasonably facilitating such Tax Action and reasonably causing such Tax Action to be executed, if and only if (1) the Company does not in good faith object to undertaking such Tax Action, provided that in such case the Company shall promptly notify the Acquiring Parties of its reason for such good faith objection, and the Acquiring Parties shall have the opportunity to modify the requested action (or request a different action) in order to address the reason for the Company’s good faith objection and if the Company’s good faith objection is not satisfactorily addressed (in the Company’s good faith judgment), the Company shall not be required to take such action and (2) QUALCOMM has deposited such Tax Action Cost into an escrow account subject to mutually agreed terms that will provide that such Tax Action Cost will be released to the Company upon the earlier of (i) with respect to any portion of the Tax Action Cost that will become due and payable prior to the Effective Time, reasonably in advance of the date on which such portion will be paid and (ii) the termination of this Agreement under Section 8.1.

Notwithstanding the foregoing, from and after the execution of this Agreement until the earlier of the Effective Time and the date (if any) on which the Acquiring Parties deliver a Closing Notice, none of the Company nor any of its Subsidiaries nor any of their respective Representatives shall be required to take or permit the taking of any action pursuant to this Section 6.10, including the foregoing Section 6.10(a), that would: (A) require the Company, any of its Subsidiaries or any of their respective Representatives to pass resolutions or consents to approve or authorize the execution of the Non-Arriver Extraction and Arriver Sale, or to enter into or execute any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement or take any other similar action, in each case, to the extent such action would be effective prior to the Closing (other than signing customary authorization letters), (B) require the Company, any of its Subsidiaries or any of their respective Representatives to pay any commitment or other similar fee or incur any other expense, liability or other obligation in connection with the Arriver/Non-Arriver Separation Planning, Non-Arriver Extraction and the Arriver Sale prior to the Closing, (C) cause any director, officer, employee or stockholder of the Company, any of its Subsidiaries or any of their respective Representatives to incur any personal liability or take action that could reasonably be expected to result in such liability, (D) conflict with the organizational documents of the Company, any of its Subsidiaries or any of their respective Representatives or any Laws, (E) reasonably be expected to result in a violation or breach of, or a default (with or without notice, lapse of time, or both) under, any Contract to which the Company, any of its Subsidiaries or any of their respective Representatives is a party, (F) require the Company, any of its Subsidiaries or any of their respective Representatives to provide access to or disclose information that could jeopardize any attorney-client privilege or other applicable privilege of such Person (provided, however, that the Company shall use commercially reasonable efforts to provide such access or disclose such information in a manner that would not jeopardize such attorney-client or other applicable privilege), (G) cause any condition to Closing set forth in Article VII (Conditions to the Merger) to fail to be satisfied or otherwise cause any breach of this Agreement that would provide the Acquiring Parties the right to terminate this Agreement, or (H) require the Company, any of its Subsidiaries or any of their respective Representatives to provide any legal opinions, prepare any pro forma financial information, budgets or projections (which shall be the sole responsibility of the Acquiring Parties to prepare) or update any projections that the Company or its Representatives previously provided to the Acquiring Parties, except to the extent reasonably necessary to obtain valuation of the Company, any of its Subsidiaries or assets, or to prepare and file any Tax Returns or other documentation with a Governmental Authority required to gain approval for or to implement the Arriver/Non-Arriver Separation Planning and Non-Arriver Extraction and the Arriver Sale; provided, that in the event the Acquiring Parties have delivered a Closing Notice, and notwithstanding anything in this Agreement to the contrary, the Company shall effect any of the actions set forth in the preceding clauses (A) (solely to the extent such actions involve only the Company and its Subsidiaries) and (B) (in each case) upon request of the Acquiring Parties (subject to, in each case, Section 6.10(e) of this Agreement), other than any of such of the foregoing actions contemplated to be taken by the Company or its Subsidiaries pursuant to the foregoing clauses with respect to which the Company objects to taking in good faith, provided that in such case the Company shall promptly notify the Acquiring Parties of its reason for such good faith objection, and the Acquiring Parties shall have the opportunity to modify the requested action (or request a different action) in order to address the reason for the Company’s good faith objection and if the Company’s good faith objection is not satisfactorily addressed (in the Company’s good faith judgment), the Company shall not be required to take such action.  Notwithstanding anything in this Agreement to the contrary, (i) the Acquiring Parties shall ensure that any requested cooperation does not unreasonably interfere with the ongoing business or operations of the Company, any of its Subsidiaries or any of their respective Representatives, (ii) in no event shall the Company, any of its Subsidiaries or any of their respective Representatives be required to cooperate in accordance with this Section 6.10 if such cooperation would reasonably be expected to unreasonably interfere with the ongoing business or operations of the Company, any of its Subsidiaries or any of their respective Representatives and (iii) the Acquiring Parties shall not make a request that the Company or its Subsidiaries take any of the actions set forth in the preceding clauses (A) or (B) and the Company shall not be required to take such an action, if such action could be effected by Merger Sub without action by the Company or its Subsidiaries and without causing any material delay in effecting the Arriver/Non-Arriver Separation Planning, the Non-Arriver Extraction or the Arriver Sale as compared with such action being taken by the Company or its Subsidiaries.

ARTICLE VII

(a) 

ARTICLE VIII

(i)          Outside Date.  The Merger shall not have been consummated on or before the date that is nine (9) months after the date hereof (such date, the “Initial Outside Date,” and such date as extended in accordance with this paragraph, the “Outside Date”); provided, that such date shall automatically extend in increments of three (3) months to a date no later than the date that is fifteen (15) months after the date hereof (such date, the “Extended Outside Date”) if the conditions set forth in Section 7.1(b) or Section 7.1(c) (if the Law or Order relates to Antitrust Laws or Investment Screening Laws) (such conditions, the “Regulatory Conditions”) shall not have been satisfied as of the close of business on the Business Day immediately prior to the Outside Date; provided, further, that, solely upon either (x) written notice by the Company to the Acquiring Parties or (y) written notice by the Acquiring Parties to the Company, in each case, before 11:59 p.m. at the end of the day (New York City time), the Extended Outside Date shall be extended to the date that is eighteen (18) months after the date hereof (such date, the “Final Extended Outside Date”); provided, further, that the right to terminate this Agreement pursuant to this Section 8.1(b)(i) shall not be available to any party if the failure of such party, and in the case of the Acquiring Parties, including the failure of Merger Sub, to perform or comply with any of their Section 6.3 obligations under this Agreement has been the principal cause of or resulted in the failure of the Closing to have occurred on or before such date;

(ii)          Legal Restraints.  Prior to the Effective Time, any Governmental Authority of the United States or a jurisdiction set forth on Section 7.1(c) of the Company Disclosure Letter shall have enacted, issued, promulgated, enforced or entered any Law or Order or taken any other action permanently restraining, enjoining, rendering illegal or otherwise prohibiting the transactions contemplated by this Agreement, and such Law or Order or other action shall have become final and non-appealable; provided, however, that the right to terminate this Agreement under this Section 8.1(b)(ii) shall not be available to a party if the issuance of such Law or Order or taking of such action was primarily due to the failure of such party, and in the case of the Acquiring Parties, including the failure of Merger Sub, to perform any of their respective obligations under this Agreement; or

(iii)        Company Stockholder Approval.  Upon a vote at a duly held meeting to obtain the Company Stockholder Approval, the Company Stockholder Approval is not obtained;

(i)          Breach by the Acquiring Parties.  Any of the Acquiring Parties or Merger Sub shall have breached or failed to perform any of their respective representations, warranties, covenants or other agreements set forth in this Agreement, which breach or failure to perform (A) would result in any condition in Section 7.3 not being satisfied, and (B) is not capable of being cured, or is not cured, by the Acquiring Parties or Merger Sub on or before the earlier of (x) the Outside Date and (y) the date that is thirty (30) calendar days following the Company’s delivery of written notice to the Acquiring Parties or Merger Sub, as applicable, of such breach; provided, however, that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(c) if the Company is then in material breach of any of its representations, warranties, covenants or agreements hereunder such that the Acquiring Parties would be entitled to terminate this Agreement pursuant to Section 8.1(d)(i); or

(ii)         Superior Proposal.  at any time prior to receipt of the Company Stockholder Approval if (i) the Company has received a Superior Proposal after the date of this Agreement, (ii) the Company Board has authorized the Company to enter into a definitive agreement to consummate the transaction contemplated by that Superior Proposal following the procedures set forth in Section 6.5, (iii) the Company has complied in all material respects with the terms of Section 6.5 with respect to such Superior Proposal and (iv) concurrently with (and as a condition to) such termination the Company pays (or causes to be paid) the Acquiring Parties the Termination Fee in accordance with Section 8.3(a);

(i)          Company Breach.  the Company shall have breached or failed to perform any of its representations, warranties, covenants or other agreements set forth in this Agreement, which breach or failure to perform (A) would result in any condition in Section 7.2 not being satisfied, and (B) is not capable of being cured, or is not cured, by the Company on or before the earlier of (x) the Outside Date and (y) the date that is thirty (30) calendar days following the Acquiring Parties’ delivery of written notice to the Company of such breach; provided, however, that the Acquiring Parties shall not have the right to terminate this Agreement pursuant to this Section 8.1(d)(i) if the Acquiring Parties or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements hereunder such that the Company would be entitled to terminate this Agreement pursuant to Section 8.1(c)(i);

(ii)       Adverse Recommendation Change.  the Company Board shall have made an Adverse Recommendation Change; provided that the Acquiring Parties’ right to terminate this Agreement pursuant to this Section 8.1(d)(ii) shall expire when the Company Stockholder Approval has been obtained; or

(iii)       Breach of Non-Solicitation Covenants.  the Company shall have committed a Willful Breach of any of its obligations under Section 6.5 (Non-Solicitation; Competing Proposal; Intervening Event) and such breach has resulted in the receipt of a Competing Proposal by the Company, which breach or failure to perform is not cured by the Company on or before the date that is ten (10) calendar days following the Acquiring Parties’ delivery of written notice to the Company of such breach.

Section 8.2

Effect of Termination.  In the event that this Agreement is validly terminated and the Merger abandoned pursuant to Section 8.1, written notice thereof shall be given to the other party or parties, specifying the provisions hereof pursuant to which such termination is made, and this Agreement shall forthwith become null and void and of no effect without liability on the part of any party hereto (or any of its Representatives), and all rights and obligations of any party hereto shall cease; provided, however, that, except as otherwise provided in Section 8.3,  Section 8.7 or in any other provision of this Agreement, no such termination shall relieve any party hereto of any liability or damages (which the parties hereto acknowledge and agree shall not be limited to reimbursement of Expenses or out-of-pocket costs, and, in the case of liabilities or damages payable by the Acquiring Parties and Merger Sub, would include the benefits of the transactions contemplated by this Agreement lost by the Company’s stockholders, taking into consideration all relevant matters, including lost stockholder premium, other combination opportunities and the time value of money), which shall be deemed in such event to be damages of such party, resulting from any Willful Breach of this Agreement prior to such termination, in which case, except as otherwise provided in Section 8.3, the aggrieved party shall be entitled to all remedies available at law or in equity; provided, further, that the Confidentiality Agreement and the provisions of Section 6.4(b) (Confidentiality Agreement), Section 6.10(e) and Section 6.10(f) (Arriver/Non-Arriver Separation Planning and Cooperation), Section 8.2 (Effect of Termination), Section 8.3 (Termination Fees; Expenses), Section 8.6 (Expenses; Transfer Taxes), Section 8.7 (Magna Payment) and Article IX (General Provisions) shall survive any termination of this Agreement pursuant to Section 8.1 (Termination) in accordance with their respective terms.

(i)          (A) a Third Party shall have made to the Company or directly to the Company’s stockholders a Competing Proposal after the date of this Agreement, (B) this Agreement is subsequently terminated (x) by either party pursuant to Section 8.1(b)(i) (Outside Date) (at a time when the Company Stockholder Approval has not been obtained or the Acquiring Parties have the right to terminate pursuant to Section 8.1(d)(i) (Company Breach)), (y) by either party pursuant to Section 8.1(b)(iii) (Company Stockholder Approval) or (z) by the Acquiring Parties pursuant to Section 8.1(d)(i) (Company Breach) or Section 8.1(d)(iii) (Breach of Non-Solicitation Covenants) and at the time of such termination in the case of clauses (x) and (y) (or at the time of such breach in the cause of clause (z)) a Competing Proposal has been publicly announced (or privately made to the Company in the case of clauses (x) and (z)) after the date of this Agreement and has not been withdrawn, and (C) within twelve (12) months of such termination of this Agreement, the Company consummates a transaction involving any Competing Proposal or enters into an Alternative Acquisition Agreement regarding any Competing Proposal and any Competing Proposal is subsequently consummated; provided, however, that for purposes of this Section 8.3(a)(i), the references to “twenty percent (20%)” in the definition of Competing Proposal shall be deemed to be references to “fifty percent (50%)”;

(ii)          this Agreement is terminated by the Acquiring Parties pursuant to Section 8.1(d)(ii) (Adverse Recommendation Change);

(iii)       (A) the Company Board shall have made an Adverse Recommendation Change and (B) this Agreement is terminated (1) by either party pursuant to Section 8.1(b)(i) (Outside Date) (at a time when the Company Stockholder Approval has not been obtained or the Acquiring Parties have the right to terminate pursuant to Section 8.1(d)(i) (Company Breach) or Section 8.1(b)(iii) (Company Stockholder Approval)), or (2) by the Acquiring Parties pursuant to Section 8.1(d)(i) (Company Breach);

(iv)        this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii) (Superior Proposal);

(v)          this Agreement is terminated by the Acquiring Parties pursuant to Section 8.1(d)(iii) (Breach of Non-Solicitation Covenants); or

(vi)       this Agreement is terminated by the Company or the Acquiring Parties (A) pursuant to Section 8.1(b)(i) if, as of the time of such termination, (1) the only conditions to Closing that have not been satisfied or waived (to the extent such waiver is not prohibited by applicable Law and other than those conditions that by their terms are to be satisfied at the Closing; provided, that such conditions were then capable of being satisfied if the Closing had taken place) are any one or more of the Regulatory Conditions and (2) no breach by the Company of its obligations under Section 6.3 has been a principal cause of the failure of any one or more of the Regulatory Conditions to be satisfied or (B) pursuant to Section 8.1(b)(ii) if (1) the relevant Law or Order or other action taken relates to Antitrust Laws or Investment Screening Laws and (2) no breach by the Company of its obligations under Section 6.3 has been a principal cause of the imposition of such Law or Order or the taking of any such other action;

then (1) the Company shall pay, or cause to be paid, by wire transfer of immediately available funds, to or at the direction of the Acquiring Parties, (x) in the case of clauses (i), (ii), (iii) and (iv) above, one hundred percent (100%) of the Termination Fee (reduced by the portion of the Termination Fee previously paid pursuant to the immediately succeeding clause (y), if any) and (y) in the case of clause (v) above, an amount equal to the Acquiring Parties’ Expenses (provided that such amount shall not exceed $15 million) (it being understood that in no event shall the Company be required to pay more than one hundred percent (100%) of the Termination Fee), (A) in the case of clause (i) above, on the date of the consummation of such transaction involving a Competing Proposal, (B) in the case of clauses (ii) or (v), or if the Acquiring Parties are the terminating party in the case of clause (iii), no later than two (2) Business Days after the date of such termination and (C) in the case of clause (iv), or if the Company is the terminating party in the case of clause (iii), prior to or substantially concurrently with such termination, or (2) the Acquiring Parties shall pay, or cause to be paid, by wire transfer of immediately available funds, to or at the direction of the Company, in the case of clause (vi) above, one hundred percent (100%) of the Reverse Termination Fee, no later than two (2) Business Days after the date of such termination or, if the Acquiring Parties are the terminating party, prior to or substantially concurrently with such termination (it being understood that in no event shall the Acquiring Parties be required to pay more than one hundred percent (100%) of the Reverse Termination Fee). Notwithstanding anything to the contrary in this Agreement, to the extent this Agreement is terminated in accordance with Section 8.1, the Acquiring Parties shall pay, or cause to be paid, by wire transfer of immediately available funds, to or at the direction of the Company no later than five (5) Business Days after the date of such termination, any amounts owed pursuant to Section 6.10(e) that have not already been advanced or reimbursed by the Acquiring Parties at the time of such termination.

Section 8.6

Expenses; Transfer Taxes.  Except as expressly set forth herein (including the following sentence) and for the Magna Termination Fee, which the Acquiring Parties have caused to be paid on behalf of the Company, all Expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such Expenses, whether or not such transactions are consummated; provided that the Acquiring Parties shall pay all costs and Expenses in connection with the filings of the notification and report forms under any Antitrust Laws and Investment Screening Laws in connection with the transactions contemplated by this Agreement and the Company shall pay all costs and Expenses in connection with the filing and mailing of the Proxy Statement.  Except as provided in Section 3.6, the Acquiring Parties, the Company or the Surviving Corporation shall timely and duly pay all stock transfer, real estate transfer, stamp, documentary and other similar Taxes or fees arising out of or in connection with entering into and implementing this Agreement and consummating the transactions contemplated herein.  The Company shall cooperate with the Acquiring Parties, Merger Sub and the Surviving Corporation in the preparation, execution and filing of all Tax Returns, questionnaires or other documents with respect to such Taxes.

Section 8.7

Magna Payment.  The Acquiring Parties agree that, at or prior to the time at which the Magna Termination Fee became due and payable by the Company in accordance with the terms of the Magna Agreement, the Acquiring Parties shall have made (or shall have caused to be made) such payment (the “Magna Payment”), and the Company agrees that it shall have validly terminated the Magna Agreement pursuant to the terms of the Magna Agreement.  If the Merger does not occur, upon the termination of this Agreement (a) pursuant to (1) Section 8.1(c)(ii) (Superior Proposal), (2) Section 8.1(d)(i) (Company Breach), (3) Section 8.1(d)(ii) (Adverse Recommendation Change), (4) Section 8.1(d)(iii) (Breach of Non-Solicitation Covenant) or (b) in any circumstance where the Termination Fee is owed pursuant to Section 8.3 (for the avoidance of doubt, in any of the circumstances contemplated by Section 8.3(a)(i)), then, in each case, the Company shall, within two (2) Business Days of such termination, pay, or cause to be paid, by wire transfer of immediately available funds, to or at the direction of the Acquiring Parties an amount equal to $110,000,000 as reimbursement for the Magna Payment made by the Acquiring Parties (the “Magna Termination Fee Refund”); it being understood that (x) the Magna Termination Fee Refund shall be paid in addition to any payment of the Termination Fee and (y) in no event shall the Company be required to pay the Magna Termination Fee Refund on more than one occasion.

ARTICLE IX

Section 9.1

Non-Survival of Representations, Warranties and Agreements.  The representations, warranties, covenants and agreements in this Agreement and any instrument delivered pursuant hereto by any Person shall terminate at the Effective Time or, except as provided in Section 8.2, upon the termination of this Agreement pursuant to Section 8.1, as the case may be, except that this Section 9.1 shall not limit any covenant or agreement of the parties hereto which by its terms contemplates performance after the Effective Time or after termination of this Agreement, including those contained in Section 6.6 and Section 6.9.

Section 9.2

Notices.  All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by hand delivery, by prepaid overnight courier (providing written proof of delivery) or by electronic mail with confirmation of receipt (with a courtesy copy concurrently provided by one of the other methods set forth in this Section 9.2), addressed as follows:

or to such other address or electronic mail address for a party as shall be specified in a notice given in accordance with this Section 9.2.

Section 9.3

Interpretation; Certain Definitions.

(a)

The parties hereto have participated jointly in the negotiation and drafting of this Agreement.  In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.

(b)

Disclosure of any fact, circumstance or information in any Section of the Company Disclosure Letter shall be deemed to be disclosure of such fact, circumstance or information with respect to any other Section of the Company Disclosure Letter, if it is reasonably apparent that such disclosure relates to any such other Section; provided that no such disclosure shall qualify Section 4.1 (Organization and Qualification; Subsidiaries), Section 4.2(a) (Capitalization) or Section 4.3 (Authority Relative to Agreement) unless it is set forth or specifically cross referenced in the corresponding Section of the Company Disclosure Letter.  The inclusion of any item in the Company Disclosure Letter shall not be deemed to be an acknowledgment that the information is required to be disclosed or admission or evidence of materiality of such item, nor shall it establish any standard of materiality for any purpose whatsoever.

(c)

The words “hereof,” “herein,” “hereby,” “hereunder” and “herewith” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”.  References to articles, sections, clauses, paragraphs, exhibits, annexes and schedules are to the articles, sections, clauses and paragraphs of, and exhibits, annexes and schedules to, this Agreement, unless otherwise specified, and the table of contents and headings in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the phrase “without limitation.” Words describing the singular number shall be deemed to include the plural and vice versa, words denoting any gender shall be deemed to include all genders, words denoting natural persons shall be deemed to include business entities and vice versa and references to a Person are also to its permitted successors and assigns.  The phrases “the date of this Agreement” and “the date hereof” and terms or phrases of similar import shall be deemed to refer to the date set forth in the Preamble, unless the context requires otherwise.  When used in reference to the Company or its Subsidiaries, the term “material” shall be measured against the Company and its Subsidiaries, taken as a whole.  References to any statute shall be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder (provided that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date or dates, references to any statute shall be deemed to refer to such statute, as amended, and to any rules or regulations promulgated thereunder, in each case, as of such date).  Terms defined in the text of this Agreement have such meaning throughout this Agreement, unless otherwise indicated in this Agreement, and all terms defined in this Agreement shall have the meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.  Any Law defined or referred to herein or in any agreement or instrument that is referred to herein means such Law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor Laws (provided that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date or dates, references to any statute shall be deemed to refer to such statute, as amended, and to any rules or regulations promulgated thereunder, in each case, as of such date).  All references to “dollars” or “$” refer to currency of the United States of America.  All references to “U.S.” or the “United States” are to the United States of America, including its territories and possessions.  Any reference to “days” means calendar days unless Business Days are expressly specified.  When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day.  Unless otherwise specified, the words “made available to,” “delivered to” or “disclosed to” the Acquiring Parties or Merger Sub (or words of similar import) means the documents (x) posted to (and not removed from) the VDR, or otherwise provided to the Acquiring Parties or their respective Representatives in response to a diligence request from the Acquiring Parties or their Representatives, prior to 12:00 pm (New York City time) on September 30, 2021 or (y) included as an exhibit to the Company SEC Documents filed with, or furnished to, the SEC by the Company on or after the Spin Date and prior to the date of this Agreement.

Section 9.4

Severability.  If any term, provision, covenant or restriction of this Agreement or the application thereof to any Person or circumstance is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in a mutually acceptable manner in order that the Merger be consummated as originally contemplated to the fullest extent possible.  Notwithstanding the foregoing, the parties hereto intend that the remedies and limitations thereon contained in Section 8.3(b) be construed as an integral provision of this Agreement and that such remedies and limitations shall not be severable in any manner that increases a party’s liability or obligations hereunder.

Section 9.5

Assignment.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of Law or otherwise) without the prior written consent of the other parties, except that Merger Sub may assign, in its sole discretion, any of or all its rights, interests and obligations under this Agreement to SSW or to any direct or indirect wholly-owned Subsidiary of SSW, but no such assignment shall relieve Merger Sub of any of its obligations under this Agreement or impose any delay or cause any detriment in the parties ability to consummate the transactions contemplated hereby.  Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective permitted successors and assigns.  Any attempted assignment in violation of this Section 9.5 shall be null and void.

 

Section 9.6

Entire Agreement.  This Agreement (including the exhibits, annexes and appendices hereto) constitutes, together with the Confidentiality Agreement, the Company Disclosure Letter, Investment and Separation Matters Agreement, the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the parties hereto, or any of them, with respect to the subject matter hereof.

Section 9.7

No Third Party Beneficiaries.  This Agreement is not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder; provided, however, that it is specifically intended that (A) the D&O Indemnified Parties (with respect to Section 6.6 from and after the Effective Time) and (B) the Company Related Parties (with respect to Section 8.3) are express third party beneficiaries of this Agreement.

Section 9.8

Governing Law.  This Agreement and all Actions (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the actions of each of the Acquiring Parties, Merger Sub or the Company in the negotiation, administration, performance and enforcement thereof, shall be governed by, and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of laws provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.

Section 9.9

Specific Performance.

(a)

The parties hereto acknowledge and agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the parties hereto do not perform the provisions of this Agreement (including failing to take such actions as are required of each party hereunder to consummate this Agreement) in accordance with its specified terms or otherwise breach such provisions.  Accordingly, the parties hereto acknowledge and agree that the parties hereto shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof (including the right of a party hereto to cause the other parties hereto to consummate the Merger and the other transactions contemplated by this Agreement), in addition to any other remedy to which they are entitled at law or in equity.  Each of the parties hereto agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that any other party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any reason at law or in equity.  Any party seeking an injunction or any other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to show proof of actual damages or provide any bond or other security in connection with any such Order.

(b)

To the extent any party hereto brings an Action to specifically enforce the performance of the terms and provisions of this Agreement (other than an Action to enforce specifically any provision that expressly survives the termination of this Agreement), the Outside Date shall automatically be extended to (i) the twentieth (20th) Business Day following the resolution of such Action or (ii) such other time period established by the court presiding over such Action.

Section 9.10

Consent to Jurisdiction.

(a)

Each of the parties hereto hereby (i) expressly and irrevocably submits to the exclusive personal jurisdiction of the state courts of the Delaware Court of Chancery, any other court of the State of Delaware or any federal court sitting in the State of Delaware, in the event any dispute arises out of this Agreement or the transactions contemplated hereby, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (iii) agrees that it will not bring any Action relating to this Agreement or the transactions contemplated hereby in any court other than the Delaware Court of Chancery, any other court of the State of Delaware or any federal court sitting in the State of Delaware, (iv) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any Action arising out of or relating to this Agreement and (v) agrees that each of the other parties hereto shall have the right to bring any Action for enforcement of a judgment entered by the state courts of the Delaware Court of Chancery, any other court of the State of Delaware or any federal court sitting in the State of Delaware.  Each of the Acquiring Parties, Merger Sub and the Company agrees that a final judgment in any Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.

(b)

Each party irrevocably consents to the service of process outside the territorial jurisdiction of the courts referred to in Section 9.10(a) in any such Action by mailing copies thereof by registered or certified United States mail, postage prepaid, return receipt requested, to its address as specified in or pursuant to Section 9.2.  However, the foregoing shall not limit the right of a party to effect service of process on the other party by any other legally available method.

Section 9.11

Counterparts.  This Agreement may be executed in multiple counterparts, all of which shall together be considered one and the same agreement.  Delivery of an executed signature page to this Agreement by electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.

Section 9.12

WAIVER OF JURY TRIAL.  EACH OF THE ACQUIRING PARTIES, MERGER SUB AND THE COMPANY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE MERGER, ANY OF THE OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF EACH OF THE ACQUIRING PARTIES, MERGER SUB OR THE COMPANY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 9.12.

[Remainder of page intentionally left blank; signature page follows.]

IN WITNESS WHEREOF, each of QUALCOMM, SSW, Merger Sub and the Company have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

[Signature Page to Agreement and Plan of Merger]

As used in this Agreement, the following terms shall have the following meanings:

“Acceptable Confidentiality Agreement” shall have the meaning set forth in Section 6.5(d).

“Acquiring Parties” shall have the meaning set forth in the Preamble.

“Acquiring Party Material Adverse Effect” shall mean any change, event, effect or circumstance which, individually or in the aggregate, has prevented or materially delayed or materially impaired or would reasonably be expected to prevent or materially delay or materially impair, the ability of QUALCOMM, SSW, or Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement.

 “Action” shall mean any claim, demand, action, suit, arbitration, audit, investigation or proceeding.

“Adverse Recommendation Change” shall have the meaning set forth in Section 6.5(e).

“Affiliate” shall have the meaning set forth in Rule 12b-2 of the Exchange Act.

“Aggregate Merger Consideration” shall mean the product of (x) the number of shares of Company Common Stock issued and outstanding (other than those shares cancelled pursuant to Section 3.1(a)) immediately prior to the Effective Time multiplied by (y) the Merger Consideration.

“Agreement” shall have the meaning set forth in the Preamble.

“Alternative Acquisition Agreement” shall have the meaning set forth in Section 6.5(b).

“Antitrust Laws” shall mean the ▇▇▇▇▇▇▇ Act of 1890, as amended; the ▇▇▇▇▇▇▇ Act of 1914, as amended; the Federal Trade Commission Act of 1914, as amended; the HSR Act, and all other federal, state, foreign or supranational Laws or Orders in effect from time to time that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.

“Arriver Business” shall mean assets, liabilities, contracts, employees, business, operations, products, platforms, services and activities of the business operated by the Company and its Subsidiaries (i) known as “Arriver” or otherwise relating thereto and (ii) comprising such functions as are necessary, advisable or incidental to building platform integration capability for servicing Tier 1 automotive suppliers, including ADAS ECU & integration, Roadscape, Vision & DMS, as well as the office of the chief technology officer, shared services, relevant sales and apps engineering functions to the extent related thereto, in each case conducted at any time prior to the Non-Arriver Extraction Effective Time by the Company or any of its current or former Subsidiaries or predecessors.

“Arriver Sale” shall have the meaning set forth in the Recitals.

“Arriver/Non-Arriver Separation Planning” shall have the meaning set forth in the Recitals.

“Blue Sky Laws” shall mean state securities or “blue sky” laws.

“Book-Entry Evidence” shall have the meaning set forth in Section 3.1(b).

“Bribery Act” shall have the meaning set forth in Section 4.21(a).

“Business Day” shall mean any day other than a Saturday, Sunday or a day on which all banking institutions in (i) Stockholm, Sweden or (ii) New York, New York, or Governmental Authorities in the State of Delaware, are authorized or obligated by Law or executive order to close.

“CARES Act” shall mean the Coronavirus Aid, Relief, and Economic Security Act (H.R. 748) and any similar or successor legislation in any applicable jurisdiction, and any subsequent legislation, regulation, memorandum or executive order relating to COVID-19, including the Health and Economic Recovery Omnibus Emergency Solutions Act and the Health, Economic Assistance, Liability, and Schools Act and including the Memorandum for the Secretary of the Treasury signed by President ▇▇▇▇▇ on August 8, 2020.

“CEO Direct Report” shall mean (i) each direct report of the Chief Executive Officer of the Company listed in the “Strategy Board and CEO Director Reports” slide provided to the Acquiring Parties in General Folder 4.6 of the VDR, and (ii) each direct report of any such individual identified in clause (i).

“Certificate of Merger” shall have the meaning set forth in Section 2.3(a).

“Certificates” shall have the meaning set forth in Section 3.1(b).

“Chief Integration Planning Officer” shall have the meaning set forth in Section 6.10(d).

“Closing” shall have the meaning set forth in Section 2.2.

“Closing Date” shall have the meaning set forth in Section 2.2.

“Closing Notice” means any notice delivered no earlier than seven (7) Business Days prior to the Inside Date in writing from both Acquiring Parties setting forth confirmation that all of the conditions to Closing set forth in Article VII of this Agreement have been satisfied or, to the extent not prohibited by Law, irrevocably waived and that the Acquiring Parties are prepared to proceed with the Closing in accordance with Section 2.2, provided, that any such Closing Notice may provide that such waiver is not applicable to (i) the conditions set forth in Section 7.1(a) and Section 7.1(c) or (ii) the condition precedent forth in Section 7.2(b) as applied to the Company’s obligations under this Agreement, which shall be deemed satisfied other than with respect to the failure of such condition to be satisfied that is primarily caused by any Willful Breach of the Company’s obligations under this Agreement (and provide that in such case, such condition precedent will not be irrevocably waived).

“Code” shall mean the Internal Revenue Code of 1986.

“Company” shall have the meaning set forth in the Preamble.

“Company 401(k) Plan” means the Veoneer, Inc. 401(k) Profit Sharing Plan and Trust, as amended from time to time.

“Company Benefit Plan” shall mean (a) each “employee benefit plan” (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA), and (b) each other employment, individual consulting, bonus, commission, stock option, stock purchase, stock unit, or other equity-based, tax gross-up, relocation, benefit, incentive compensation, profit sharing, savings, retirement, disability, insurance, vacation, incentive, deferred compensation, severance, separation, termination, retention, change of control and other similar fringe perquisite, health or, welfare benefit or other employee benefit plans, benefit programs, benefit agreements, benefit contracts, benefit policies or benefit arrangements (whether or not in writing), in each case, (i) which is maintained or contributed, or required to be maintained or contributed to, by the Company or any of its Subsidiaries or with respect to which the Company or any of its Subsidiaries is a party, or (ii) with respect to which the Company or any of its Subsidiaries has or may have any liability.

“Company Board” shall have the meaning set forth in the Recitals.

“Company Bylaws” shall have the meaning set forth in Section 4.1.

“Company Capital Stock” shall have the meaning set forth in Section 4.2(a).

“Company Charter” shall have the meaning set forth in Section 4.1.

“Company Common Stock” shall have the meaning set forth in the Recitals.

“Company Data” means all confidential data, information, and data compilations contained in the IT Systems or any databases of the Company and its Subsidiaries, including Personal Data, that are used by, and in the business of, the Company and its Subsidiaries.

“Company Debt” shall have the meaning set forth in Section 6.11(a).

“Company Disclosure Letter” shall mean the disclosure letter delivered by the Company to the Acquiring Parties simultaneously with the execution of this Agreement.

“Company Equity Awards” shall mean, collectively, (i) Company Options and (ii) Company Stock Units.

“Company Equity Plan” shall mean, collectively, the Company’s 2018 Stock Incentive Plan and the Company’s 2021 Stock Incentive Plan.

“Company Intellectual Property Rights” shall mean (i) all Company Owned IP and (ii) all Intellectual Property Rights that are licensed to the Company or any of its Subsidiaries for use by the Company or any of its Subsidiaries in their respective businesses.

“Company Material Adverse Effect” shall mean any change, event, effect or circumstance which, individually or in the aggregate (x) has resulted in or would reasonably be expected to result in a material adverse effect on the business, assets, operations, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole; (y) has prevented or materially delayed or materially impaired or would reasonably be expected to prevent or materially delay or materially impair, the ability of the Company to consummate the Merger and the other transactions contemplated by this Agreement; provided, however, that changes, events, effects or circumstances which, directly or indirectly, to the extent they relate to or result from the following shall be excluded for the purposes of clause (x) from the determination of Company Material Adverse Effect: (i) any change, event, effect or circumstance generally affecting any of the industries or markets in which the Company or its Subsidiaries operate; (ii) any change in any Law or GAAP (or changes in interpretations of any Law or GAAP) and, to the extent relevant to the business of the Company and its Subsidiaries, in any legal or regulatory requirement or condition or the regulatory enforcement environment; (iii) general economic, regulatory or political conditions (or changes therein) or conditions (or changes therein or disruptions thereof) in the financial, credit, banking or securities markets (including changes in interest or currency exchange rates) in any country or region in which the Company or its Subsidiaries conduct business; (iv) any acts of God, natural disasters, force majeure events, terrorism, sabotage, armed hostilities, sabotage, declared or undeclared acts of war, epidemics, pandemics or disease outbreaks (including, for the avoidance of doubt, COVID-19, any COVID Measures, or effects thereof), or any escalation or worsening of any of the foregoing; (v) the proposals made by the Acquiring Parties and communications related thereto with respect to the transactions contemplated hereby or the execution, announcement, consummation or existence of this Agreement or the transactions contemplated hereby, including by reason of the identity of the Acquiring Parties or any communication by the Acquiring Parties or their respective Subsidiaries regarding the plans or intentions of the Acquiring Parties with respect to the conduct of the business or the operations or strategy of the Company or any of its Subsidiaries, or any action or inaction by, or taken at the direction of, the Acquiring Parties or any of their Subsidiaries, and, in each of the foregoing cases, any consequences resulting from any of the foregoing, including the impact on any relationships (contractual or otherwise) with customers, suppliers, landlords, vendors, collaboration or joint venture partners, employees or regulators (it being understood and agreed that this clause (v) shall not apply with respect to any breach of the representations and warranties in Section 4.4(a) of this Agreement that are intended to address the consequences of the execution, announcement, consummation or existence of this Agreement); (vi) any action taken pursuant to, or required by, the terms of this Agreement, including, for clarity, any actions or inactions whatsoever taken or not taken by the Company or any of its Subsidiaries in connection with Section 6.10 of this Agreement,  or with the consent or at the direction of the Acquiring Parties (or any action not taken as a result of the failure of the Acquiring Parties to consent to any action requiring the Acquiring Parties’ consent); (vii) any reduction, deferral or trend in order intake, termination, non-renewal or modification of customer and/or supplier agreements or deterioration in customer and/or supplier relationships of the Company or any of its Subsidiaries, or any employee attrition, and, in each of the foregoing cases, any consequences resulting from any of the foregoing; (viii) any changes in the market price or trading volume of the Company Common Stock, any failure by the Company or its Subsidiaries to meet internal, analysts’ or other earnings estimates or financial projections or forecasts for any period, any changes in credit ratings and any changes in any analysts’ recommendations or ratings with respect to the Company or any of its Subsidiaries (provided, that the facts or occurrences giving rise to or contributing to such changes or failure that are not otherwise excluded from the definition of “Company Material Adverse Effect” may be taken into account in determining whether there has been a Company Material Adverse Effect); (ix) any matter to the extent the adverse consequences or effects of which have been described in reasonable detail or are reasonably apparent on their face in the publicly available Company SEC Documents filed with or furnished to the SEC by the Company on or after the Spin Date and prior to the date of this Agreement (other than any disclosures set forth under the headings “Risk Factors” or “Forward-Looking Statements,” any disclosure in any section relating to forward-looking statements and any other statements that are predictive or forward-looking in nature other than historical facts included therein) or in the Company Disclosure Letter; and (x) any litigation or claim threatened or initiated by stockholders of the Company against the Company, any of its Subsidiaries or any of their respective officers or directors, in each case, arising out of or relating to the execution of this Agreement or the transactions contemplated hereby; provided that any effect referred to in the foregoing clauses (i), (ii) or (iii) may be taken into account if such effect has a disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, as compared to other participants in the industries or geographic locations in which the Company and its Subsidiaries operate, but in such case, solely to the extent of such disproportionate impact.

“Company Material Contract” shall have the meaning set forth in Section 4.16(a).

“Company Option” shall mean each outstanding option to purchase shares of Company Common Stock issued under any Company Equity Plan or otherwise.

“Company Option Consideration” shall have the meaning set forth in Section 3.3(a).

“Company Owned IP” shall have the meaning set forth in Section 4.14(a).

“Company Permits” shall have the meaning set forth in Section 4.5(a).

“Company Privacy Policies” means the written (a) internal or external data protection, data usage, privacy and security policies of the Company with respect to Personal Data, (b) public commitments to the general public with respect to privacy, security, or the Processing of Personal Data, and (c) policies and obligations applicable to the Company or its Subsidiaries as a result of any certification with respect to privacy, security, or the Processing of Personal Data.

“Company Products” means all (i) products or services designed, produced, or licensed, sold or offered for sale under a Trademark of the Company or its Subsidiaries by the Company or any of its Subsidiaries, (ii) products or services previously designed, produced or licensed, sold or offered for sale under a Trademark of the Company or its Subsidiaries by the Company or any of its Subsidiaries, to the extent that they remain supported by or on behalf of the Company or any of its Subsidiaries, and (iii) products currently under development by the Company or any of its Subsidiaries, either independently or jointly with others, to the extent of control thereof by the Company or its Subsidiaries, with any other Person and that are currently scheduled in the Company’s development and commercialization plan therefor to be commercially launched within twelve (12) months after the date hereof, in their current form.

“Company PSU” shall mean each performance stock unit (or “performance share” award) granted pursuant to a Company Equity Plan or otherwise that vests on the basis of time and the achievement of performance targets and pursuant to which the holder has a right to receive shares of Company Common Stock or cash following the vesting or lapse of restrictions applicable to such performance stock unit (or “performance share” award).

“Company PSU Consideration” shall have the meaning set forth in Section 3.3(c).

“Company Recommendation” shall mean the recommendation of the Company Board that the stockholders of the Company vote in favor of the adoption of this Agreement and the approval of the Merger and the other transactions contemplated herein.

“Company Registered IP” means all Patents, Trademarks, Copyrights and Domain Names that are included in the Company Owned IP and that are registered, issued or the subject of a pending application.

“Company Related Parties” shall have the meaning set forth in Section 8.3(b).

“Company RSU” shall mean each restricted stock unit granted pursuant to a Company Equity Plan or otherwise that vests solely on the basis of time and pursuant to which the holder has a right to receive shares of Company Common Stock or cash following the vesting or lapse of restrictions applicable to such restricted stock unit.

“Company RSU Consideration” shall have the meaning set forth in Section 3.3(b).

“Company SEC Documents” shall have the meaning set forth in Section 4.6(a).

“Company Securities” shall mean, collectively, the Company Common Stock, Company Options and Company Stock Units.

“Company Service Provider” means an employee, individual consultant, individual independent contractor, individual self-employed contractor, leased or temporary employee or director of the Company or any of its Subsidiaries.

“Company Stock Units” shall mean any of the Company RSUs and the Company PSUs.

“Company Stockholder Approval” shall have the meaning set forth in Section 4.3(a).

“Company Stockholders Meeting” shall have the meaning set forth in Section 6.2(c).

“Company Technology” means all Technology that is used by the Company or any of its Subsidiaries and is embodied in, or used in connection with the development, testing, manufacturing, operation or support of, the Company Products.

“Competing Proposal” shall have the meaning set forth in Section 6.5(i)(i).

“Confidentiality Agreement” shall mean the Confidentiality and Non-Disclosure Agreement dated August 11, 2021 between QUALCOMM and the Company.

“Consent” shall have the meaning set forth in Section 4.4(b).

“Continuation Period” shall have the meaning set forth in Section 6.9(a).

“Continuing Employees” shall have the meaning set forth in Section 6.9(a).

“Contract” shall mean any written contract, subcontract, lease, sublease, conditional sales contract, purchase order, sales order, task order, delivery order, license, indenture, note, bond, loan, instrument, understanding, permit, concession, franchise, commitment or other agreement.

“control” (including the terms “controlled by” and “under common control with”) shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, as trustee or executor, by Contract or credit arrangement or otherwise.

“Convertible Notes” shall mean the Company’s outstanding 4.00% Convertible Senior Notes due 2024.

“Convertible Notes Indenture” shall mean the Indenture, dated as of May 28, 2019, between the Company and U.S. Bank National Association, as trustee, with respect to the Convertible Notes.

“COVID-19” shall mean SARS-CoV-2 and its disease commonly known as COVID-19, and any evolutions or additional strains, variations or mutations thereof or any related or associated epidemics, pandemic or disease outbreaks.

“COVID Measures” shall mean any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester, safety or similar Law, directive, guidelines or recommendations promulgated by any Governmental Authority, including the Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection with or in response to COVID-19, including the CARES Act and the Families First Coronavirus Response Act.

“D&O Indemnified Parties” shall have the meaning set forth in Section 6.6(a).

“Data Processor” means a natural or legal Person that Processes Personal Data on behalf of and at the direction of the Company or its Subsidiaries.

“Debt Payoff Amount” shall have the meaning set forth in Section 6.11(a).

“DGCL” shall have the meaning set forth in the Recitals.

“Dissenting Shares” shall have the meaning set forth in the Section 3.5.

“dollars” shall have the meaning set forth in Section 9.3(c).

“Effective Time” shall have the meaning set forth in Section 2.3(a).

“Environmental Laws” shall mean all Laws relating to pollution or protection of the environment or human health (with regard to exposure to Hazardous Materials), including Laws relating to Releases of harmful or deleterious materials and the manufacture, processing, distribution, use, treatment, storage, Release, transport or handling of harmful or deleterious materials, including the Federal Water Pollution Control Act (33 ▇.▇.▇. §▇▇▇▇ et seq.), the Resource Conservation and Recovery Act of 1976 (42 ▇.▇.▇. §▇▇▇▇ et seq.), the Safe Drinking Water Act (42 U.S.C. §3000(f) et seq.), the Toxic Substances Control Act (15 ▇.▇.▇. §▇▇▇▇ et seq.), the Clean Air Act (42 ▇.▇.▇. §▇▇▇▇ et seq.), the Oil Pollution Act of 1990 (33 ▇.▇.▇. §▇▇▇▇ et seq.), the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 ▇.▇.▇. §▇▇▇▇ et seq.), the Endangered Species Act of 1973 (16 ▇.▇.▇. §▇▇▇▇ et seq.), and other similar domestic (federal, state or local), foreign, national or supra-national Laws, in effect as of the date hereof.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974.

“ERISA Affiliate” shall mean, for any Person, each trade or business, whether or not incorporated, that, together with such Person, would (at any relevant time) be deemed a “single employer” within the meaning of Section 4001(b) of ERISA or Section 414 of the Code.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

“Exchange Fund” shall have the meaning set forth in Section 3.2(a).

“Existing D&O Insurance Policies” shall have the meaning set forth in Section 6.6(c).

“Expenses” shall mean all out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a party hereto and its Affiliates) incurred by a party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, filing and mailing of the Proxy Statement and all SEC and other regulatory filing fees incurred in connection with the Proxy Statement, any filing with, and obtaining of any necessary action or non-action, Consent or approval from any Governmental Authority pursuant to any Antitrust Laws, Investment Screening Laws or other applicable Laws, engaging the services of the Paying Agent, any other filings with the SEC and all other matters related to the Closing and the other transactions contemplated by this Agreement.

“Export Control Laws” shall mean (i) the U.S. Export Administration Regulations and all other Laws adopted by Governmental Authorities of the United States, the European Union and its Member States, and the United Kingdom and other countries relating to import and export controls and (ii) the anti-boycott regulations administered by the U.S. Department of Commerce and the U.S. Department of the Treasury.

“FCPA” shall have the meaning set forth in Section 4.21(a).

“Financial Advisors” shall have the meaning set forth in Section 4.23.

“GAAP” shall mean the United States generally accepted accounting principles.

“Governmental Authority” shall mean any United States (federal, state or local) or foreign government, or any governmental, regulatory, judicial or administrative authority, agency, court or commission, or any other body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, regulatory or taxing authority or power of any nature.

“Hazardous Materials” shall mean all substances (i) defined as hazardous substances, oils, pollutants or contaminants in the National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. § 300.5, (ii) defined as hazardous substances, hazardous materials, pollutants, contaminants, toxic substances (or words of similar import) by or regulated as such under, or giving rise to liability under, any Environmental Law, or (iii) any petroleum or petroleum-derived products, radioactive materials or wastes, asbestos in any form, mold reasonably likely to have a material adverse impact on human health or property, urea formaldehyde foam insulation, polychlorinated biphenyls, and per- and polyfluoroalkyl substances.

“HSR Act” shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder.

“Information Security Program” means a written information security program with respect to Personal Data, that includes: (i) written policies and procedures regarding Personal Data owned, controlled, maintained, held, or Processed by the Company or its Subsidiaries, and the Processing thereof; (ii) administrative, technical and physical safeguards to protect the security, confidentiality, and integrity of such Personal Data and specify reasonable obligations with respect to the foregoing on Data Processors with respect to such Personal Data; (iii) incident response with respect to security breaches, and security plans and procedures, with respect to such Personal Data; and (iv) to the extent not covered by (ii) above, protections against Security Incidents, Malicious Code, and against loss, misuse or unauthorized access to and Processing of such Personal Data and, as applicable, IT Systems which Process such Personal Data, and specify reasonable obligations with respect to the foregoing on Data Processors with respect to such Personal Data

“Inside Date” means the first Business Day following the date that is six (6) months after the date of this Agreement.

“Intellectual Property Rights” means all intellectual property, as they exist anywhere in the world, registered or unregistered, and all worldwide common law and statutory rights in: (i) issued patents and pending patent applications (which for purposes of this Agreement shall include utility models, design patents, industrial designs, certificates of invention and applications for certificates of invention and priority rights) in any country or region, including all reissues, re-examinations, divisionals, renewals, extensions, provisionals, continuations and continuations-in-part thereof (“Patents”); (ii) copyrights, copyright registrations and applications therefor and all copyrightable works, and all proprietary rights corresponding thereto throughout the world however denominated, including all rights of authorship, use, publication, reproduction, distribution, performance, transformation, and rights of ownership of copyrightable works and all registrations thereof and rights to register and obtain renewals and extensions of such registrations, together with all other copyright-related interests accruing by reason of international treaties or conventions (“Copyrights”); (iii) industrial designs and any registrations and applications therefor; (iv) such rights in trademarks, registered trademarks, applications for registration of trademarks, service marks, registered service marks, applications for registration of service marks, trade names, registered trade names and applications for registration of trade names, and including all intent to use any of the foregoing if not registered or subject to a pending application (“Trademarks”); (v) such rights in “trade secrets” as defined in the Uniform Trade Secrets Act and, as applicable, under corresponding foreign statutory and common law and such rights in other proprietary or confidential information, including, as recognized under applicable Law, rights to limit the use or disclosure thereof by any Person (“Trade Secrets”); (vi) such rights with respect to databases and data collections; (vii) mask work proprietary rights and semiconductor chip proprietary rights, and all registrations and applications for registration with respect thereto; (viii) such rights in Internet domain names, Internet Protocol addresses and social media identifiers (“Domain Names”); and (ix) any other intellectual property rights of any kind or nature.

“Intervening Event” has the meaning set forth in Section 6.5(i)(iii).

“Investment and Separation Matters Agreement” shall have the meaning set forth in the Recitals.

“Investment Screening Laws” shall mean any Laws or Orders designed or intended to screen, prohibit, restrict or regulate investments on public order or national security grounds.

“IRS” shall mean the Internal Revenue Service.

“IT Assets” means all computer systems, including hardware, firmware, middleware and platforms, interfaces, systems, networks, information technology equipment, infrastructure, workstations, switches, data communications lines and associated documentation owned or leased and controlled by the Company or any of its Subsidiaries in connection with the conduct of their businesses.

“IT Systems” mean the hardware, software, firmware, middleware, equipment, electronics, platforms, servers, workstations, routers, hubs, switches, interfaces, data, databases, data communication lines, network and telecommunications equipment, websites and Internet-related information technology infrastructure, and data communications or other information technology equipment, owned or leased by or licensed to and controlled by the Company or any of its Subsidiaries and used to Process Company Data in the conduct of the business of the Company and its Subsidiaries.

“Key Company Customers” has the meaning set forth in Section 4.19(a).

“Key Company Suppliers” has the meaning set forth in Section 4.19(b).

“Knowledge” shall mean, in the case of each of the Company, QUALCOMM, SSW and Merger Sub, the actual knowledge of the individuals listed under that party’s name in Appendix B.

“Law” shall mean any and all domestic (federal, state or local), foreign, national or supra-national laws (statutory, common, or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, guideline, orders, judgments or decrees or other similar requirement enacted, adopted, promulgated or applied by any Governmental Authority, including any COVID Measures.

“Leased Real Property” shall have the meaning set forth in Section 4.17(b).

“Lien” shall mean liens, claims, mortgages, encumbrances, pledges, security interests or charges of any kind including licenses or other grants of Intellectual Property Rights.

“Magna” shall have the meaning set forth in the Recitals.

“Magna Agreement” shall have the meaning set forth in the Recitals.

“Magna Confidentiality Agreement” shall mean the Amended and Restated Mutual Confidentiality and Non-Disclosure Agreement dated May 19, 2021 between Magna and the Company.

“Magna Payment” shall have the meaning set forth in Section 8.7.

“Magna Termination Fee” shall have the meaning set forth in the Recitals.

“Magna Termination Fee Refund” shall have the meaning set forth in Section 8.7.

“Malicious Code” means any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” “ransomware,” or “worm” (as such terms are commonly understood in the software industry) or any other code maliciously implemented to perform any of the following functions: (a) disrupting, disabling, harming, interfering with or otherwise impeding in any manner the operation of, or providing access to, a computer system or network or other device on which such code is stored or installed, without authorization; or (b) damaging or destroying any data or file without the user’s consent.

“Maximum Amount” shall have the meaning set forth in Section 6.6(c).

“Measurement Date” shall have the meaning set forth in Section 4.2(a).

“Merger” shall have the meaning set forth in the Recitals.

“Merger Consideration” shall have the meaning set forth in Section 3.1(b).

“Merger Sub” shall have the meaning set forth in the Preamble.

 “Nasdaq” shall mean the NASDAQ Global Select Market.

“Nasdaq Stockholm” shall mean Nasdaq Stockholm AB.

“New Plans” shall have the meaning set forth in Section 6.9(d).

“Non-Arriver Business” shall mean all of the assets, liabilities, contracts, employees, businesses, operations, products, platforms, services and activities (whether or not such businesses or operations are or have been terminated, divested or discontinued), conducted by the Company and its Subsidiaries prior to the Non-Arriver Extraction Effective Time, other than the Arriver Business.

“Non-Arriver Extraction” shall have the meaning set forth in the Recitals.

“Non-Arriver Extraction Effective Time” means the time at which the Non-Arriver Extraction is consummated.

“Notice of Adverse Recommendation” shall have the meaning set forth in Section 6.5(f).

“Notice Period” shall have the meaning set forth in Section 6.5(f).

“NYSE” shall have the meaning set forth in Section 4.4(b).

“Old Plans” shall have the meaning set forth in Section 6.9(d).

“Open License Terms” means the applicable terms and conditions governing the licensing of “open source software”, “free software” or “copyleft” software that requires as a condition of its use, modification or distribution that it, or other software into which such software is incorporated, integrated or with which such software is combined or that is derived from or linked to such software, be disclosed or distributed in source code form, or be licensed, distributed or conveyed under the same terms as such Contract (including software licensed under the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD licenses, Microsoft Shared Source License, Common Public License, Artistic License, Netscape Public License, Sun Community Source License (SCSL), Sun Industry Standards License (SISL), Apache License and any license listed at ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇).

“Order” shall mean any decree, judgment, injunction or other order by or with any Governmental Authority.

“Organizational Documents” shall mean the certificate of incorporation, bylaws (or equivalent organizational or governing documents), and other organizational or governing documents, agreements or arrangements, each as amended to date, of each of the Acquiring Parties and Merger Sub.

“Outside Date” shall have the meaning set forth in Section 8.1(b)(i).

“Owned Real Property” shall have the meaning set forth in Section 4.17(a).

“Paying Agent” shall have the meaning set forth in Section 3.2(a).

“Paying Agent Agreement” shall have the meaning set forth in Section 3.2(a).

“Payoff Letter” shall have the meaning set forth in Section 6.11(a).

“Permitted Lien” shall mean (a) any Lien for Taxes, utilities, landlords and other governmental charges not yet due and payable or that are being contested in good faith by any appropriate proceedings and for which adequate accruals or reserves have been established in accordance with GAAP, (b) Liens securing indebtedness or liabilities that are reflected in the Company SEC Documents or incurred in the ordinary course of business since the end of the most recent fiscal year for which an Annual Report on Form 10-K has been filed by the Company with the SEC, (c) such Liens or other imperfections of title, if any, that do not individually or in the aggregate, materially and adversely affect the ability of the Company or its Subsidiaries, as the case may be, to use a particular parcel of Owned Real Property or Leased Real Property for its intended purpose and in a manner consistent with the Company and its Subsidiaries’ past practices (prior to the date hereof), including (i) easements or claims of easements whether or not shown by the public records, boundary line disputes, overlaps, encroachments and any matters not of record which would be disclosed by an accurate survey or a personal inspection of the property, (ii) rights of parties in possession, and (iii) title to any portion of the premises lying within the right of way or boundary of any public road or private road, (d) Liens imposed or promulgated by Laws with respect to real property and improvements, including zoning regulations, permits, licenses, utility easements, rights of way and similar Liens imposed or promulgated by any Governmental Authority that are not yet due and payable or that are being contested in good faith by any appropriate proceedings and for which adequate accruals or reserves have been established in accordance with GAAP, (e) Liens disclosed on existing title reports or existing surveys, (f) mechanics’, carriers’, workmen’s, repairmen’s, materialmen’s, warehousemen’s, suppliers’, cashiers’ and similar Liens incurred in the ordinary course of business or arising by operation of law or that are not otherwise material with respect to which adequate accruals or reserves have been established in accordance with GAAP, (g) non-exclusive licenses or other grants of Intellectual Property Rights in the ordinary course of business, (h) covenants, conditions, restrictions, rights of way, servitudes, encroachments, permits and oil, gas, mineral and any mining reservations, rights, licenses and leases that do not materially impair the value, occupancy or use of such real property, (i) deposits made in the ordinary course of business to secure payments of worker’s compensation, unemployment insurance or other types of social security benefits or the performance of bids, tenders, sales, Contracts, public or statutory obligations, and surety, stay, appeal, customs or performance bonds, in each case, arising in the ordinary course of business, (j) Liens resulting from securities Laws, (k) Liens incurred in the ordinary course of business in connection with any purchase money security interests (other than mortgage debt) for personal property, equipment leases or similar financing arrangements, and reflected on the Company’s or its Subsidiaries’ financial statements disclosed to the Acquiring Parties, (l) Liens created by (or at the request of) the Acquiring Parties, Merger Sub or any of their respective Affiliates, (m) Liens that will be removed prior to or at the Effective Time and (n) Liens securing indebtedness or liabilities listed under the caption “Definitions - Permitted Liens” on the Company Disclosure Letter.

“Person” shall mean an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including a Governmental Authority.

“Personal Data” means information reasonably capable of being associated with an identified or identifiable person, device, or household, to the extent specified by the applicable Privacy Requirement, which may include: (a) a natural person’s name, street address or specific geolocation information, date of birth, telephone number, email address, online contact information, photograph, biometric data, Social Security number, driver’s license number, passport number, tax identification number, any government-issued identification number, financial account number, credit card number, any information that would permit access to a financial account, a user name and password that would permit access to an online account, health information, insurance account information, any persistent identifier such as customer number held in a cookie, an Internet Protocol address, a processor or device serial number, or a unique device identifier; or (b) other data that is “personal data,” “personal information,” “protected health information,” “nonpublic personal information,” or other similar terms as defined by Privacy Requirements, in each case (a) and (b) possessed or controlled by the Company or its Subsidiaries.

“Privacy Requirements” means any and all Laws, applicable industry standards and Contracts to the extent specifying obligations regarding the protection or governing the Processing of Personal Data that are applicable to the Company or any of its Subsidiaries, including, but not limited to: (a) the CAN-SPAM Act of 2003, 15 U.S.C. § 7701, et seq.; the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq.; HIPAA; the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, et seq.; the Children’s Online Privacy Protection Act 15 U.S.C. § 6501, et seq.; the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq.; the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. § ▇▇▇▇, et seq.; the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-22; the Stored Communications Act, 18 U.S.C. §§ 2701-12, et seq.; the California Consumer Privacy Act, Cal. Civ. Code § 1798.100, et seq.; the California Customer Records Act, Cal. Civ. Code §§ 1798.80 to 84; California Online Privacy Protection Act, Cal. Bus. & Prof. Code § 22575, et seq.; the New York Department of Financial Services Cybersecurity Regulation, 23 N.Y.C.R.R. § 500, et seq.; the South Carolina Privacy of Consumer Financial and Health Information Regulation, South Carolina Code § 69-58, et seq.; Massachusetts Gen. Law Ch. 93H, 201 C.M.R. § 17.00, et seq.; Nev. Rev. Stat. 603A, et seq.; Cal. Civ. Code § 1798.82, et seq.; N.Y. Gen. Bus. Law § 899-aa, et seq.; N.Y. Gen. Bus. Law § 899-bb, et seq.; 11 N.Y.C.R.R. § 420, et seq.; 11 N.Y.C.R.R. § 421, et seq.; the Illinois Biometric Information Privacy Act, 740 I.L.C.S. § 14, et seq.; the European Union’s Directive on Privacy and Electronic Communications (2002/58/EC); the General Data Protection Regulation (2016/679); U.S. state and federal Laws that prohibit unfair or deceptive acts and practices, such as the Federal Trade Commission Act, 15 U.S.C. § 45, et seq.; and all other Laws and binding regulations with respect to data protection, information security, cybercrime, Security Incident notification, social security number protection and otherwise to privacy matters (including online privacy) with respect to the applicable jurisdictions; (b) each Contract to the extent specifying obligations with respect to the Processing of Personal Data applicable to the Company or its Subsidiaries; and (c) each applicable written rule, code of conduct or other requirement of self-regulatory bodies to which the Company or its Subsidiaries has specifically agreed in writing to be bound, as well as, to the extent applicable, the Payment Card Industry Data Security Standard.

“Processing”, “Process” or “Processed” means any collection, access, acquisition, storage, protection, use, recording, maintenance, operation, dissemination, re-use, disposal, disclosure, re-disclosure, deletion, destruction, transmission, modification, or any other processing (as defined by Privacy Requirements) of Company Data.

“Proxy Statement” shall have the meaning set forth in Section 6.2(a).

“Public Software” means any software, database, libraries or other code that is licensed under Open License Terms.

“QUALCOMM” shall have the meaning set forth in the Preamble.  “Real Property Leases” shall have the meaning set forth in Section 4.17(b).

“QUALCOMM Technology Licensing” means the QUALCOMM Technology Licensing business operated by QUALCOMM and its Subsidiaries.

“Release” shall mean any actual or threatened release, spill, emission, discharge, leaking, pumping, injection, deposit, disposal, dispersal, leaching or migration of Hazardous Materials, including the movement of Hazardous Materials through or in the air, soil, surface water, groundwater, real property or indoor or outdoor environment.

“Remedy Actions” shall have the meaning set forth in Section 6.3(c).

“Representatives” shall mean, as to any Person, such Person’s Affiliates and its and their respective directors, officers, employees, agents, advisors, consultants, representatives and controlling Persons and any representatives of the foregoing.

“Required Merger Payments” shall have the meaning set forth in Section 5.7(a).

“Reverse Termination Fee” shall mean an amount equal to $225,000,000.

“Sanctions Laws” shall mean any Law related to economic or financial sanctions imposed, administered or enforced by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations, or Her Majesty’s Treasury of the United Kingdom and Governmental Authorities in the European Union and any of its Member States and any other relevant jurisdiction.

“SDR” means Swedish depository receipts.

“SEB” shall have the meaning set forth in Section 6.2(c).

“SEC” shall mean the Securities and Exchange Commission.

“Secretary” shall have the meaning set forth in Section 2.3(a).

“Securities Act” shall mean the Securities Act of 1933, as amended.

“Security Incident” means an unauthorized Processing of Personal Data, an unauthorized access to the IT Systems, or any incident that requires notification to any Person with respect to Personal Data of such Person, or to any Governmental Authority, in each case under Privacy Requirements.

“Solvent” shall have the meaning set forth in Section 5.11.

“Source Code” means the source code (i.e., software code in its original, human readable, un-compiled form) of any Company Products, together with any extracts, portions or segments thereof.

“Specified Agreement” shall mean that certain agreement set forth on Section 4.2(a) of the Company Disclosure Letter.

“Spin Date” shall mean the effective date of the Company’s spin-off from Autoliv Inc., which, for purposes of this Agreement, shall mean June 29, 2018.

“SSW” shall have the meaning set forth in the Preamble.

“SSW 401(k) Plan” shall have the meaning set forth in Section 6.9(e).

“Subsidiary” of any Person, shall mean any corporation, partnership, joint venture or other legal entity of which such Person (either above or through or together with any other subsidiary), owns, directly or indirectly, more than 50% of the stock or other equity interests, the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity.

“Superior Proposal” shall have the meaning set forth in Section 6.5(i)(ii).

 “Surviving Corporation” shall have the meaning set forth in Section 2.1.

“Tail Coverage” shall have the meaning set forth in Section 6.6(c).

“Takeover Laws” has the meaning set forth in Section 4.25.

“Tax” or “Taxes” shall mean any and all taxes, fees, levies, duties, tariffs, imposts, and other similar charges (together with any and all interest, penalties and additions to tax) imposed by any Governmental Authority, including taxes or other charges on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation, or net worth; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value added, or gains taxes; customs duties, tariffs; and any other taxes, governmental fees, assessments or other obligations of the same or of a similar nature to any of the foregoing.

“Tax Matters Agreement” shall have the meaning set forth in Section 4.15(j).

“Tax Returns” shall mean returns, reports and information statements, including any schedule or attachment thereto, with respect to Taxes required to be filed with the IRS or any other Governmental Authority or taxing authority, including any claim for refund or amended return.

“Technology” means all items embodying any Intellectual Property Rights, including all technology from which such items were or are derived, including: (i) works of authorship (including software, firmware, games and middleware in source code and executable code form, architecture, databases, plugins, libraries, APIs, interfaces, algorithms and documentation); (ii) inventions (whether or not patentable), designs, discoveries and improvements of the foregoing; (iii) proprietary technical data and information and know-how; (iv) databases, data compilations and collections of data, and customer and technical data; (v) proprietary methods and processes; and (vi) proprietary devices, prototypes, designs, specifications and schematics.

“Termination Fee” shall mean an amount equal to $110 million.

“Third Party” shall mean any Person or group other than the Acquiring Parties, Merger Sub and their respective Affiliates and Representatives acting on their behalf.

“Treasury Regulations” shall mean the income tax regulations promulgated under the Code.

“U.S.” or the “United States” shall have the meaning set forth in Section 9.3(c).

“VDR” shall have the meaning set forth in Section 4.27(a).

“WARN” means the Worker Adjustment and Retraining Notification Act of 1988, as amended and the regulations promulgated thereunder or any similar state, local or foreign law.

 “Willful Breach” means a deliberate act or a deliberate failure to act, taken or not taken with the actual knowledge that such act or failure to act would, or would reasonably be expected to, result in or constitute a material breach; provided that Willful Breach shall not include any such breach by the Company’s third party Representatives if the Company has instructed such third party Representative to comply with the applicable terms of this Agreement.

KNOWLEDGE

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