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Document Preview Contribution Agreement |
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Title: |
Contribution Agreement |
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Entities: |
Conexant Systems, Inc.; Ixys Corp; International Brotherhood of Electrical Workers |
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Date: |
2004 |
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Size: |
Preview shows 63KB of 214KB total |
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Price: |
$78 |
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ID: |
#1424489 |
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Start of Preview |
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among:
SPECIALTYSEMI, INC.,
a Delaware corporation;
CONEXANT SYSTEMS, INC.,
a Delaware corporation;
and
CARLYLE CAPITAL INVESTORS, L.L.C.,
a Delaware limited liability company.
Dated as of February 23, 2002
Confidential treatment has been requested for portions of this document. This copy of the document filed as an Exhibit omits the confidential information subject to the confidentiality request. Omissions are designated by the symbol [...***...]. A complete version of this document has been filed separately with the Securities and Exchange Commission.
TABLE OF CONTENTS
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Page
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1. |
CONTRIBUTION OF ASSETS; RELATED TRANSACTIONS. |
2 | ||||
1.1 |
Contributions by Conexant. |
2 | ||||
1.2 |
Cash Contribution by Carlyle. |
2 | ||||
1.3 |
Consideration for Membership Interests and Cash. |
2 | ||||
1.4 |
Earn-Out Payments. |
3 | ||||
1.5 |
Royalties. |
4 | ||||
1.6 |
Sales Taxes. |
5 | ||||
1.7 |
Closing. |
6 | ||||
2. |
REPRESENTATIONS AND WARRANTIES OF CONEXANT. |
6 | ||||
2.1 |
Due Organization; Authority; Binding Nature of Agreements. |
6 | ||||
2.2 |
Tangible Assets. |
7 | ||||
2.3 |
Inventory. |
7 | ||||
2.4 |
Contracts. |
7 | ||||
2.5 |
Intellectual Property. |
8 | ||||
2.6 |
Employee Matters. |
10 | ||||
2.7 |
Compliance with Legal Requirements. |
12 | ||||
2.8 |
Governmental Authorizations. |
12 | ||||
2.9 |
Environmental Matters. |
13 | ||||
2.10 |
Proceedings; Orders. |
13 | ||||
2.11 |
Non-Contravention; Consents. |
14 | ||||
2.12 |
Absence of Certain Changes or Events. |
14 | ||||
2.13 |
Financial Information. |
15 | ||||
2.14 |
Suppliers. |
15 | ||||
2.15 |
Taxes. |
15 | ||||
2.16 |
No Brokers. |
17 | ||||
2.17 |
Real Property. |
17 | ||||
2.18 |
Affiliated Transactions. |
17 | ||||
2.19 |
Sufficiency of Assets. |
17 | ||||
2.20 |
Newport Fab Contribution Agreement. |
17 | ||||
2.21 |
Liabilities. |
17 | ||||
2.22 |
Consummation of the Newport Fab Contribution. |
17 | ||||
i
2.23 |
Membership Interests. |
17 | ||||
2.24 |
Newport Fab LLC. |
18 | ||||
2.25 |
The Warrant. |
18 | ||||
3. |
REPRESENTATIONS AND WARRANTIES OF CARLYLE. |
18 | ||||
3.1 |
Due Organization; Authority; Binding Nature of Agreements. |
18 | ||||
3.2 |
Non-Contravention; Consents. |
18 | ||||
4. |
COVENANTS OF THE PARTIES. |
19 | ||||
4.1 |
Conduct of Business. |
19 | ||||
4.2 |
Access to Information. |
21 | ||||
4.3 |
Filings and Consents. |
21 | ||||
4.4 |
No Solicitation. |
21 | ||||
4.5 |
Notification. |
22 | ||||
4.6 |
Bulk Transfer Laws. |
22 | ||||
4.7 |
Publicity. |
22 | ||||
4.8 |
Reasonable Best Efforts. |
22 | ||||
4.9 |
[...***...] |
22 | ||||
4.10 |
Tax Matters. |
22 | ||||
4.11 |
Update of Schedules. |
24 | ||||
4.12 |
[...***...] |
24 | ||||
4.13 |
Newport Fab Contribution Agreement. |
24 | ||||
4.14 |
[...***...] |
24 | ||||
5. |
CONDITIONS PRECEDENT TO CONEXANT'S OBLIGATION TO CLOSE. |
24 | ||||
5.1 |
Accuracy of Representations. |
24 | ||||
5.2 |
Performance of Obligations. |
24 | ||||
5.3 |
Governmental Approvals. |
24 | ||||
5.4 |
Governmental Proceedings. |
25 | ||||
5.5 |
Receipt of Consideration. |
25 | ||||
5.6 |
Certificates. |
25 | ||||
5.7 |
Agreements to be Delivered. |
25 | ||||
5.8 |
Warrant. |
25 | ||||
6. |
CONDITIONS PRECEDENT TO CARLYLE'S OBLIGATION TO CLOSE. |
25 | ||||
6.1 |
Accuracy of Representations. |
25 | ||||
6.2 |
Performance of Obligations. |
25 | ||||
Confidential treatment has been requested for portions of this document. This copy of the document filed as an Exhibit omits the confidential information subject to the confidentiality request. Omissions are designated by the symbol [...***...]. A complete version of this document has been filed separately with the Securities and Exchange Commission.
ii
6.3 |
Governmental Proceedings. |
25 | ||||
6.4 |
Consents and Replacement Contracts. |
25 | ||||
6.5 |
Governmental Approvals. |
26 | ||||
6.6 |
Material Adverse Effect. |
26 | ||||
6.7 |
Inventory. |
26 | ||||
6.8 |
Employment. |
26 | ||||
6.9 |
Company Bank Account. |
26 | ||||
6.10 |
Certificates. |
26 | ||||
6.11 |
Agreements to be Delivered. |
26 | ||||
6.12 |
Conveyancing Documents. |
26 | ||||
6.13 |
Warrant. |
26 | ||||
7. |
TERMINATION. |
26 | ||||
7.1 |
Termination Events. |
26 | ||||
7.2 |
Termination Procedures. |
27 | ||||
7.3 |
Effect of Termination. |
27 | ||||
7.4 |
Nonexclusivity of Termination Rights. |
27 | ||||
8. |
INDEMNIFICATION, ETC. |
27 | ||||
8.1 |
Survival of Representations and Warranties. |
27 | ||||
8.2 |
Indemnification by Conexant. |
28 | ||||
8.3 |
Indemnification by the Company. |
29 | ||||
8.4 |
Indemnification by Carlyle. |
29 | ||||
8.5 |
Setoff. |
30 | ||||
8.6 |
Defense of Third Party Claims. |
30 | ||||
8.7 |
Sole and Exclusive Remedy. |
31 | ||||
8.8 |
Exercise of Remedies by Indemnitees other than Parties to this Agreement. |
31 | ||||
8.9 |
Additional Procedures Relating to Environmental Claims. |
31 | ||||
8.10 |
Additional Indemnification by Conexant |
31 | ||||
9. |
COVENANTS OF THE PARTIES AFTER THE CLOSING. |
32 | ||||
9.1 |
Access to Information. |
32 | ||||
9.2 |
Election Out of Installment Method. |
32 | ||||
9.3 |
Certain Agreements Concerning the Specified Excluded Assets. |
32 | ||||
iii
10. |
MISCELLANEOUS PROVISIONS. |
32 | ||||
10.1 |
Publicity. |
32 | ||||
10.2 |
Further Assurances. |
33 | ||||
10.3 |
Fees and Expenses. |
33 | ||||
10.4 |
Attorneys' Fees. |
33 | ||||
10.5 |
Notices. |
33 | ||||
10.6 |
Time of the Essence. |
34 | ||||
10.7 |
Headings. |
34 | ||||
10.8 |
Governing Law. |
34 | ||||
10.9 |
Successors and Assigns; Parties in Interest. |
34 | ||||
10.10 |
Remedies Cumulative; Specific Performance. |
35 | ||||
10.11 |
Waiver. |
35 | ||||
10.12 |
Amendments. |
35 | ||||
10.13 |
Severability. |
35 | ||||
10.14 |
Counterparts. |
35 | ||||
10.15 |
Entire Agreement. |
35 | ||||
10.16 |
Construction. |
35 | ||||
10.17 |
No Implied Licenses. |
36 | ||||
10.18 |
Dispute Resolution; Arbitration. |
36 | ||||
iv
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is entered into as of February 23, 2002, by and among: SPECIALTYSEMI, INC., a Delaware corporation (the "Company"); CONEXANT SYSTEMS, INC., a Delaware corporation ("Conexant"); and CARLYLE CAPITAL INVESTORS, L.L.C., a Delaware limited liability company ("Carlyle"). Certain capitalized terms used in this Agreement are defined in Exhibit A.
RECITALS
WHEREAS, the Conexant Group Companies currently conduct, and historically have conducted, semiconductor wafer fabrication and manufacturing operations at Conexant's Newport Beach California facilities (the "Wafer Fabrication Operations"), which operations include (i) the semiconductor wafer fabrication and probing operations located at the facilities surrounding, or physically housed in, either in part or in whole, Buildings 501, 503 and 505 located at 4311 Jamboree Road, Newport Beach, California (buildings 503 and 505 being referred to collectively as the "El Capitan Buildings") and (ii) certain research and development, design support service and other support operations ("Wafer Fabrication Support Operations");
WHEREAS, (i) Conexant wishes to contribute to the Company, and the Company wishes Conexant to contribute to the Company, all of the membership interests of Newport Fab, LLC, a Delaware limited liability company and a wholly owned Subsidiary of Conexant ("Newport Fab LLC"), and the Warrant (as defined below) and (ii) Carlyle wishes to contribute to the Company cash in the amounts specified herein, each in exchange for shares of Common Stock of the Company as part of a plan pursuant to Section 351 of the Code; and
WHEREAS, in connection with the transactions contemplated by this Agreement, (i) the Company, Conexant and Carlyle will enter into (1) a Stockholder Agreement in the form of Exhibit B hereto (the "Stockholders Agreement") which, among other things, sets forth the agreements relating to the operations of the Company and the rights and obligations of Conexant and Carlyle as stockholders of the Company and (2) a Registration Rights Agreement in the form of Exhibit C hereto (the "Registration Rights Agreement") setting forth certain rights of registration of the Company's capital stock; (ii) the Company, Newport Fab LLC and Conexant will enter into: (1) one or more License Agreements in the form agreed to by both parties (the "License Agreements") pursuant to which, among other things, Conexant will transfer or license certain technology and intellectual property rights to the Company; (2) a Long Term Supply Agreement in the form of Exhibit D hereto (the "Long-Term Supply Agreement") pursuant to which, among other things, the Company shall supply wafers to Conexant; (3) Real Property Lease Agreements in the forms agreed to by both parties (the "Real Property Lease Agreements") pursuant to which, among other things, the Company will lease the wafer fabrication facilities located in Newport Beach, California from Conexant; (4) a Transition Services Agreement in the form agreed to by both parties (the "Transition Services Agreement") pursuant to which Conexant and the Company will agree to the sharing and transitioning of certain support services related to the Wafer Fabrication Operations; (5) an IT Services Agreement in the form agreed to by the parties (the "IT Services Agreement") pursuant to which Conexant will provide certain information technology support services to the Company, and (6) an Employee Matters Agreement in the form of Exhibit E hereto (the "Employee Matters Agreement"); (iii) the Company will enter into Employment Agreements with certain key employees of Conexant listed on Schedule 6.8(a) to be hired by the Company in the form agreed upon by the parties (the "Key Employees"); and (iv) the Company and Carlyle will enter into (1) a Management Services Agreement in the form of Exhibit F hereto (the "Carlyle Management Services Agreement") pursuant to which Carlyle will perform certain management services for the Company, and (2) agreements in the form of Exhibit G hereto (the "Carlyle Management Rights Agreements"), pursuant to which Carlyle will have certain rights with respect to management of the Company; and (v) the Company and Conexant will enter into (1) a Management Services Agreement in the form of Exhibit H hereto (the "Conexant Management Services Agreement") pursuant to which
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