UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): September 3, 1999
NATIONAL SEMICONDUCTOR CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 1-6453 95-2095071
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(State of incorporation) (Commission (I.R.S. Employer
File Number) Identification No.)
2900 Semiconductor Drive, P.O. Box 58090
Santa Clara, California 95052-8090
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(Address of principal executive offices)
Registrant's telephone number, including area code: (408) 721-5000
NATIONAL SEMICONDUCTOR CORPORATION
INDEX
Page No.
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Item 2. Acquisition or Disposition of Assets 3
Item 7. Financial Statements and Exhibits 3-7
Signature 8
Item 2. Acquisition or Disposition of Assets
- --------------------------------------------
On September 3, 1999, National Semiconductor Corporation
("National" or the "Company") completed the sale of assets of its Cyrix
personal computer ("PC") processor business to VIA Technologies, Inc.
("VIA"), a Taiwanese company. The sale included the Company's MIITM x86
compatible processor and successor products. National will retain the
integrated Media GXTM processor, which forms the core of the Company's
new GeodeTM family of solutions for the information appliance market.
Assets sold included inventories, land, buildings and equipment
primarily located in Richardson, Texas; Arlington, Texas; Mesa, Arizona;
and Santa Clara, California. Some PC processor-related manufacturing
assets in Singapore were also included. Total proceeds from the
transaction were $75.0 million, of which $8.2 million represented
reimbursement to National for certain employee retention costs that were
incurred by the Company solely as a result of closing the sale. The
remaining $66.8 million represented payment for the assets sold. The
Company received cash of $70.0 million upon the closing of the
transaction, with the remaining $5.0 million due in December 1999. The
Company expects to record a gain on the sale in the second quarter of
fiscal 2000, after determining final transaction costs associated with
the sale.
In addition, as part of the final sale arrangement, National can
receive future royalties up to $92.0 million, which are earned based on
future sales of products by VIA and certain VIA affiliates as defined
under the terms of a separate license agreement. These royalties will
be accounted for in current operating results if and when they are
earned.
The information, which is included in the Registrant's news release
dated September 3, 1999, is incorporated by reference.
Item 7. Financial Statements and Exhibits
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(b) Pro forma financial information.
The following unaudited pro forma condensed consolidated financial
statements present pro forma financial information for National and its
subsidiaries giving effect to the September 3, 1999 sale of assets of
its Cyrix PC processor business to VIA. The unaudited pro forma
condensed consolidated balance sheet as of May 30, 1999 is presented as
if the sale transaction had occurred as of that date. The unaudited pro
forma condensed consolidated statement of operations for the year ended
May 30, 1999 is presented as if the sale transaction had occurred at the
beginning of the year.
The pro forma condensed consolidated financial statements should be
read in conjunction with the audited consolidated financial statements
and notes thereto included in the Company's Annual Report on Form 10-K
for the year ended May 30, 1999. The pro forma information may not
necessarily be indicative of what the Company's results of operations or
financial position would have been had the transaction been in effect as
of and for the period presented, nor is such information necessarily
indicative of the Company's results of operations or financial position
for any future period or date.
NATIONAL SEMICONDUCTOR CORPORATION
PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET (Unaudited)
(in millions) May 30, 1999
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Pro Forma Adjustments
---------------------
Sale Trans-
Historical action (A) Other Pro Forma
---------- -------- ----------- ---------
ASSETS
Current assets:
Cash and cash
equivalents $ 418.7 $ 61.8 $ (5.3)(B) $ 475.2
Short-term marketable
investments 107.2 107.2
Receivables, net 171.9 5.0 176.9
Inventories 141.3 (11.0) 130.3
Deferred tax assets 117.9 117.9
Other current assets 32.2 32.2
--------- ------- -------- --------
Total current assets 989.2 55.8 (5.3) 1,039.7
Property, plant and
equipment, net 916.0 (33.0) 883.0
Other assets 139.1 (0.1) 139.0
--------- ------- -------- --------
Total assets $2,044.3 $ 22.7 $ (5.3) $2,061.7
========= ======= ======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current portion
of long-term debt $ 49.3 $ 49.3
Accounts payable 189.8 189.8
Accrued expenses 348.1 $ 0.9 349.0
Income taxes payable 77.8 77.8
--------- ------- ------- --------
Total current liabilities 665.0 0.9 665.9
Long-term debt 416.3 $ (5.3)(B) 411.0
Other non-current
liabilities 62.2 62.2
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Total liabilities $1,143.5 $ 0.9 $ (5.3) $1,139.1
--------- ------- ------- --------
Commitments and contingencies
Shareholders' equity:
Common stock 84.5 84.5
Additional paid-in
capital 1,253.1 1,253.1
Retained deficit (434.1) 21.8 (412.3)
Accumulated other
comprehensive loss (2.7) (2.7)
--------- ------ ------ --------
Total shareholders'
equity 900.8 21.8 922.6
--------- ------ ------ --------
Total liabilities and
shareholders' equity $2,044.3 $ 22.7 $ (5.3) $2,061.7
========= ====== ====== ========
NATIONAL SEMICONDUCTOR CORPORATION
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS (Unaudited)
(in millions, except per share amounts)
Fiscal Year Ended May 30, 1999
---------------------------------------------
Pro Forma Adjustments
---------------------
PC
Processor
Business
Historical Operations(C) Other Pro Forma
---------- -------- --------- ---------
Net sales $ 1,956.8 $(179.2) $1,777.6
Operating costs and expenses:
Cost of sales 1,553.5 (270.3) 1,283.2
Research and development 471.3 (29.0) 442.3
Selling, general and
administrative 317.4 (40.0) 277.4
Special items:
Restructuring of
Operations 700.9 - $ (40.1)(D) 660.8
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Total operating costs
and expenses 3,043.1 (339.3) (40.1) 2,663.7
--------- ------- ------- ---------
Operating loss (1,086.3) 160.1 40.1 (886.1)
Interest income(expense), net (2.2) - 0.6 (B) (1.6)
Other income, net 3.1 1.8 4.9
--------- ------- ------- ---------
Loss before income taxes (1,085.4) 161.9 40.7 (882.8)
Income tax benefit (75.5) (75.5)
--------- ------- ------- ---------
Net loss $(1,009.9) $ 161.9 $ 40.7 $ (807.3)
========= ======= ======= =========
Loss per share:
Basic $ (6.04) $ (4.83)
Diluted $ (6.04) $ (4.83)
Weighted average shares:
Basic 167.1 167.1
Diluted 167.1 167.1
Loss used in basic
and diluted loss
per common share
calculation $(1,009.9) $ (807.3)
National Semiconductor Corporation
Notes to Pro Forma Condensed Consolidated Financial Statements
(A) The pro forma adjustment to the condensed consolidated balance
sheet as of May 30, 1999 includes the effect of the receipt of cash
at the closing of the sale, recording of the receivable for the
remaining sale price, disposal of the assets sold and recording of
related transactions costs. Included in the retained deficit is
the resulting estimated gain on sale as if the sale had occurred on
May 30, 1999. The actual gain from the sale when recorded in the
second quarter of fiscal 2000 will differ based on the actual
carrying value of the net assets as of September 3, 1999 and
determination of final transaction costs. The estimated gain on
sale has been excluded from the pro forma condensed consolidated
statement of operations for the year ended May 30, 1999.
(B) The disposition of the buildings and equipment in Richardson also
required the Company to repay certain debt associate with those
assets. The pro forma adjustment to the condensed consolidated
balance sheet reflects the repayment of the debt. The pro forma
adjustment to interest expense excludes the portion of interest
expense associated with the debt.
(C) The pro forma adjustment to the condensed consolidated statement of
operations reflects the elimination of sales and operating costs of
the Cyrix PC processor business as if the disposition had occurred
as of the beginning of the fiscal year ended May 30, 1999.
(D) In May 1999, the Company recorded a restructure charge of $689.6
million in connection with the announcement of its decision to exit
the PC processor business and related support activities and to
sharpen its focus on the emerging information appliance market and
its traditional analog business. This charge included an
impairment loss on capital assets and severance costs of employees
devoted to supporting the PC processor business. The pro forma
adjustment to the condensed consolidated statement of operations
excludes the impairment loss and severance costs related to the PC
processor business.
(c). Exhibits
Designation
Of Exhibit Description of Exhibit
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2.1 Stock Purchase Agreement by and between National
Semiconductor Corporation and VIA Technologies, Inc.
dated as of August 2, 1999*
99 Contents of News Release dated September 3, 1999
* This Agreement contains a list identifying any Exhibits or Schedules,
which will be filed upon request.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
NATIONAL SEMICONDUCTOR CORPORATION
Date: September 17, 1999
/s/ Lewis Chew
-----------------------------------
Lewis Chew
Vice President and Controller
Signing on behalf of the registrant
and as principal accounting officer
EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
by and between
NATIONAL SEMICONDUCTOR CORPORATION
and
VIA TECHNOLOGIES, INC.
Dated as of August 2, 1999
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is entered into as
of August 2, 1999 by and between National Semiconductor Corporation, a
Delaware corporation ("National"), and VIA Technologies, Inc., a
corporation incorporated under the laws of Taiwan ("VIA").
RECITALS
WHEREAS, National, directly and indirectly, through its
subsidiaries, is engaged in the business of designing, limited
manufacturing, marketing, selling and using stand-alone X86 processors
(the "Business");
WHEREAS, upon the terms and subject to the conditions set forth
herein, National will transfer, and will cause Cyrix Corporation
("Cyrix"), a wholly owned subsidiary of National, and certain other
direct and indirect subsidiaries of National to transfer, certain assets
used in the Business to NSC Sub, Inc. ("Sub"), and Sub will assume from
the applicable entities certain liabilities relating to the Business.
In exchange for such transfers, Sub will issue to National 100 shares of
the common stock of Sub (the "Shares");
WHEREAS, upon the terms and subject to the conditions set forth
herein, National will sell to VIA the Shares in exchange for the
consideration set forth herein; and
WHEREAS, as a condition to the consummation of the transactions
contemplated hereby, certain additional agreements will be entered into
by National, VIA and/or a wholly owned subsidiary of VIA.
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Defined Terms. As used herein, the terms below shall have the
following meanings:
"Additional Agreements" means that certain License Agreement,
substantially in the form attached as Exhibit A hereto, that certain
Assembly and Test Agreement, substantially in the form attached as
Exhibit B hereto, that certain Foundry Agreement, substantially in the
form attached as Exhibit C hereto, that certain Transition Services
Agreement, substantially in the form attached as Exhibit D hereto, at
the option of the parties, that certain Santa Clara Lease Agreement,
substantially in the form attached as Exhibit E hereto, that certain
Guaranty of First International Computers Corporation (FIC),
substantially in the form attached as Exhibit F hereto and any related
bills of sale or other deeds or instruments necessary for the
consummation of the transactions contemplated by the foregoing
agreements or this Agreement to occur on the Closing Date.
"Affiliate" of a Person means any other Person which directly or
indirectly controls, is controlled by, or is under common control with,
such Person. The term "control" (including, with correlative meaning,
the terms "controlled by" and "under common control with"), as used with
respect to any Person, means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"Code" means the Internal Revenue Code of 1986.
"Court Order" means any judgment, decision, consent decree,
injunction, ruling or order of any federal, state or local court or
governmental agency, department or authority that is binding on any
Person or its property under applicable law.
"Employees" means those individuals employed by National in
connection with the Business at the Cyrix facilities in Richardson,
Texas and Mesa, Arizona and the National facilities in Arlington, Texas,
Santa Clara, California and various sales offices worldwide.
"Encumbrance" means any claim, lien, pledge, option, charge,
easement, security interest, deed of trust, mortgage, right-of-way,
encroachment, building or use restriction, conditional sales agreement,
encumbrance or other right of third parties, whether voluntarily
incurred or arising by operation of law, and includes any agreement to
give any of the foregoing in the future, and any contingent sale or
other title retention agreement or lease in the nature thereof.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority
within the accounting profession), or in such other statements by any
such entity as may be in general use by significant segments of the U.S.
accounting profession, which are applicable to the facts and
circumstances on the date of determination.
"Liabilities" means all costs, expenses, charges, debts,
liabilities, claims, demands and obligations of any kind or nature,
whether primary or secondary, direct or indirect, fixed, contingent,
absolute or otherwise, or whether arising under any Court Order or any
applicable law or in respect of or relating to any asset, business, or
contract, agreement, arrangement, lease, commitment, or undertaking.
"Operating Expenses" means all expenses of the type listed on
Schedule 1.1 hereto incurred by National and its subsidiaries during the
period beginning at 12:00 midnight, Texas time, on August 31, 1999 until
Closing.
"Permitted Encumbrances" means (i) liens for taxes not yet due or
payable or being contested in good faith, (ii) materialmen's,
mechanics', carriers', workmen's, repairmen's or other like liens
arising in the ordinary course of business, (iii) any other Encumbrances
that individually or in the aggregate do not materially impair the
Business and (iv) Encumbrances in favor of VIA arising under this
Agreement or any Additional Agreements (provided that in no event shall
the amounts under the preceding clauses (ii) and (iii) exceed $100,000
in the aggregate).
"Person" means any person or entity, whether an individual,
trustee, corporation, limited liability company, general partnership,
limited partnership, trust, unincorporated organization, business
association, firm, joint venture, governmental agency or authority.
"Richardson Facility" means all real property (including but not
limited to land, building and improvements) commonly known as 2703 North
Central Expressway, Richardson, Texas and any adjacent parcels of real
property owned by Cyrix or its Affiliates.
"Selected Employees" means the list of Employees attached hereto as
Schedule 1.1(a) (the parties agree that such list will be delivered by
VIA to National no later than 5:00 p.m., Central daylight time, on
August 5, 1999).
"To the knowledge" of a party (or similar phrases) means to the
extent of matters (i) which are actually known by such party or (ii)
which, based on facts of which such party should be aware after
reasonable investigation, would be known to a reasonable Person in
similar circumstances. With respect to a corporation, "to the
knowledge" refers to the knowledge of any executive officer or member of
senior management of such corporation.
1.2 Other Defined Terms. The following terms have the meanings
defined for such terms in the Sections set forth below:
TERM SECTION
Accrued Vacation Amount 8.2
Agreement Preamble
Assets 2.2
Assigned Contracts 3.9
Assumed Liabilities 2.2
Business Recitals
Closing 2.4
Closing Date 2.4
Confidential Information 8.6 (a)
Confidentiality Agreement 5.2 (a)
Cyrix Recitals
Damage Threshold 9.2 (f)
Damages 9.2 (a)
Environmental Laws 3.11(a)
Excluded Liabilities 2.2
Exon-Florio Act 3.2
Governmental Entity 3.7
HSR Act 3.2
Intellectual Property Rights 3.10(a)
Letter Agreement 5.2 (b)
Material Adverse Effect 3.1
National Preamble
National Disclosure Schedule Article III
Permits 3.7
Purchase Price 2.3
Representatives 5.2 (a)
Securities Act 4.8 (d)
Shares Recitals
Sub Recitals
Tax 3.8
VIA Preamble
VIA Disclosure Schedule Article IV
1.3 Interpretation Provisions
(a) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement, and
article, section, schedule and exhibit references are to this Agreement
unless otherwise specified. The meaning of defined terms shall be
equally applicable to the singular and plural forms of the defined
terms. The term "or" is disjunctive but not necessarily exclusive. The
terms "include" and "including" are not limiting and mean "including
without limitation."
(b) References to agreements and other documents shall be deemed
to include all subsequent amendments and other modifications thereto.
(c) References to statutes shall include all regulations
promulgated thereunder and references to statutes or regulations shall
be construed as including all statutory and regulatory provisions
consolidating, amending or replacing the statute or regulation.
(d) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the construction of
this Agreement.
(e) The language used in this Agreement shall be deemed to be the
language chosen by the parties to express their mutual intent, and no
rule of strict construction shall be applied against either party.
(f) The schedules and exhibits to this Agreement are a material
part hereof and shall be treated as if fully incorporated into the body
of the Agreement.
(g) References in this Agreement to "U.S. Dollars", "$" or
"cents" are to the currency of the United States of America.
(h) The English language shall control the interpretation of this
Agreement and all other writings between the parties.
(i) Sub shall not be deemed an Affiliate or a subsidiary of
National for purposes of this Agreement.
ARTICLE II.
FORMATION OF SUB, contribution
OF ASSETS AND SALE OF SHARES
2.1 Formation of NSC Sub, Inc. Prior to the Closing, National
shall cause a Certificate of Incorporation of Sub to be filed with the
Secretary of State of the State of Delaware as required by the Delaware
General Corporation Law.
2.2 Contribution of Assets. At the Closing, upon the terms and
subject to the conditions contained herein, National will, and will
cause its subsidiaries to contribute and deliver to Sub, and Sub will
acquire from National and its subsidiaries, those certain assets
relating to the Business listed on Schedule 2.2(a) hereto (the
"Assets"), free and clear of all Encumbrances, other than Permitted
Encumbrances, and those certain Liabilities relating to the Business
listed on Schedule 2.2(b) hereto (the "Assumed Liabilities"). In
exchange therefor, Sub will issue to National, and National will acquire
at the Closing, the Shares. Notwithstanding any of the provisions of
this Agreement, the Assets shall not include any of those assets used in
the Business listed on Schedule 2.2(c) hereto. Notwithstanding any
other provision of this Agreement, except for the Assumed Liabilities,
Sub shall not assume, or otherwise be responsible for, any Liabilities
incurred prior to Closing, whether or not relating to the Business or
the Assets (the "Excluded Liabilities").
2.3 Purchase and Sale of Shares. At the Closing, upon the terms
and subject to the terms contained herein, National will sell to VIA,
and VIA will acquire, the Shares free and clear of all Encumbrances. As
complete consideration for the Shares, VIA will pay to National (i) at
the Closing, SEVENTY MILLION DOLLARS ($70,000,000) less the Accrued
Vacation Amount plus (ii) on the date which is three months following
the Closing Date, FIVE MILLION DOLLARS ($5,000,000) (such amounts in the
aggregate, the "Purchase Price"), in each case by wire transfer in
immediately available funds to an account designated by National.
2.4 Closing. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of Latham
& Watkins, 135 Commonwealth Drive, Menlo Park, California as promptly as
practicable after the satisfaction or waiver, if permissible, of the
conditions set forth in Articles VI and VII of this Agreement (the day
on which the Closing takes place being referred to herein as the
"Closing Date"). The effective time of the transactions contemplated
hereby shall be deemed to be the opening of business, California,
U.S.A., on the Closing Date.
2.5 Tax Matters
(a) All transfer, documentary, sales, use, stamp, registration
and other such taxes and fees (including any penalties and interest)
incurred in connection with this Agreement (including any relating to
the contribution of the Assets to Sub and the sale of the Shares to VIA)
shall be paid by VIA when due, and VIA will, at its own expense, file
all necessary tax returns and other documentation with respect to all
such transfer, documentary, sales, use, stamp, registration and other
such taxes and fees, and, if required by applicable law, National will,
and will cause its Affiliates to, join in the execution of any such tax
returns and other documentation.
(b) Promptly upon the request of National, VIA shall pay or
cause to be paid its portion, prorated as of the Closing Date, of state
and local personal property taxes of any kind or nature relating in any
way to the Assets.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF NATIONAL
National hereby represents and warrants to VIA, except as set forth
in the disclosure schedule delivered by National (the "National
Disclosure Schedule"), as follows:
3.1 Organization and Qualification. National is a corporation
duly organized, validly existing and in good standing under the laws of
the State of Delaware and has the corporate power to carry on its
business as it is now being conducted or currently proposed to be
conducted. National is duly qualified as a foreign corporation to do
business, and is in good standing, in each jurisdiction where the
character of its properties owned or held under lease or the nature of
its activities makes such qualification necessary, except where the
failure to be so qualified will not, individually or in the aggregate,
have a Material Adverse Effect. As used in this Agreement, "Material
Adverse Effect" shall mean any circumstance, effect or change which has,
or is reasonably likely to have, a material adverse effect on the
Business, the Assumed Liabilities or the Assets, but excluding any such
effect resulting directly and primarily from (i) general economic or
financial market conditions, (ii) the announcement or consummation of
the transactions contemplated by this Agreement and the Additional
Agreements or (iii) a sale by National of its manufacturing facility in
South Portland, Maine. Complete and correct copies as of the date
hereof of the organizational documents of National have, to the extent
requested, been delivered or made available to VIA.
3.2 Authority Relative to this Agreement. The execution,
delivery and performance by National and its Affiliates of this
Agreement and the Additional Agreements to which National and its
Affiliates is a party or by which National or its Affiliates is bound
have been duly and validly authorized by the Board of Directors of
National and by all other necessary corporate action on the part of
National and its Affiliates. This Agreement and the Additional
Agreements to which National and its Affiliates is a party or by which
National and its Affiliates is bound constitute the legally valid and
binding obligations of National and its Affiliates, enforceable against
National and its Affiliates in accordance with their terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws and equitable
principles limiting creditors' rights generally. Neither National nor
its Affiliates is subject to or obligated under (i) any charter or by-
law provision or (ii) any indenture or other loan document, contract,
license, franchise, permit, order, decree, concession, lease,
instrument, judgment, statute, law, ordinance, rule or regulation
applicable to National, its Affiliates or their properties or assets
which would be breached or violated, or under which there would be a
default (with or without notice or lapse of time, or both), or under
which there would arise a right of termination, cancellation or
acceleration of any obligation or the loss of a material benefit, or
result in any Encumbrance on the Assets, except for Permitted
Encumbrances, by its executing and carrying out this Agreement or the
Additional Agreements to which it is a party or by which it is bound,
other than, in the case of clause (ii) only, (A) any breaches,
violations, defaults, terminations, cancellations, accelerations,
Encumbrances or losses which, either individually or in the aggregate,
will not have a Material Adverse Effect or prevent the consummation of
the transactions contemplated hereby or by the Additional Agreements to
which National or its Affiliates is party or by which National or its
Affiliates is bound and (B) the laws and regulations referred to in the
next sentence. Except as referred to herein or, in connection, or in
compliance, with the provisions of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 (the "HSR Act"), and any foreign counterparts
thereof, the Exon-Florio provisions of the Omnibus Trade and
Competitiveness Act of 1988 (the "Exon-Florio Act"), the International
Investment and Trade in Services Survey Act, and the environmental,
corporation, securities or blue sky laws or regulations of the various
states, no filing or registration with, or authorization, consent or
approval of, any public body or authority is necessary for the
consummation by National or its Affiliates of the transactions
contemplated by this Agreement or the Additional Agreements to which
National or its Affiliates is a party or by which National or its
Affiliates is bound, other than filings, registrations, authorizations,
consents or approvals the failure of which to make or obtain would not
have a Material Adverse Effect or prevent the consummation of the
transactions contemplated hereby or by the Additional Agreements to
which National or its Affiliates is a party or by which National is
bound.
3.3 Assets.
(a) National has, and will transfer to Sub, good and marketable
title to the Assets, and upon the consummation of the transactions
contemplated hereby, Sub will acquire good and marketable title to the
Assets, free and clear of any Encumbrances, except for Permitted
Encumbrances.
(b) The Assets, together with the National Licensed Technology
(as defined in the License Agreement), include all property, rights and
assets used by National and its subsidiaries primarily in the normal
conduct of the Business.
(c) Each of the tangible assets included in the list of Assets
provided as Schedule 2.2(a), has been maintained in accordance with
normal industry practice, is in good operating condition and repair
(subject to normal wear and tear), and is suitable for the purposes for
which it is presently used, except for such failures which, singly or in
the aggregate, would not have a Material Adverse Effect.
(d) There are no material leases, subleases, licenses, occupancy
agreements, options, rights, concessions or other agreements or
arrangements, written or oral, granting to any Person the right to
purchase, use or occupy the Richardson Facility or any portion thereof
or any interest in such Facility.
(e) The Richardson Facility has received all approvals of
Governmental Entities (including a certificate of occupancy or other
similar certificate permitting lawful occupancy of the facility)
required in connection with the operation thereof and have been operated
and maintained in accordance with applicable regulations, except for
such failures which singly or in the aggregate would not have a Material
Adverse Effect.
(f) Cyrix owns the Richardson Facility.
(g) The Richardson Facility is supplied with utilities
(including without limitation water, sewage, disposal, electricity, gas
and telephone) and other services necessary for the operation of such
facility as currently operated, and there is no condition which would
reasonably be expected to result in the termination of the present
access from the Richardson Facility to such utility services.
3.4 Litigation. There is no order or action of any Governmental
Entity (as defined herein) or arbitrator pending or suit by third
parties pending, or to the knowledge of National, threatened, against or
affecting National or its subsidiaries that individually or when
aggregated with one or more other actions has or, if determined
adversely to the interest of National, might reasonably be expected to
have, a Material Adverse Effect or would prevent National from
performing its obligations under this Agreement or any Additional
Agreement to which National is a party or by which it is bound.
3.5 Labor Matters. National is not a party to any labor
agreement with respect to the Employees with any labor organization,
union or group. As to the Employees, no labor organization or group of
Employees has made a pending demand for recognition or certification,
and there are no representation or certification proceedings or
petitions seeking a representation proceeding pending as of the date
hereof or, to the knowledge of National, threatened as of the date
hereof to be brought or filed, with the National Labor Relations Board
or any other labor relations tribunal or authority. There are no
organizing activities, strikes, work stoppages, slowdowns, lockouts,
arbitrations or grievances, or other labor disputes pending or, to the
knowledge of National, threatened against National or its Affiliates
involving the Employees which, individually or in the aggregate, have
had or would have a Material Adverse Effect.
3.6 Financial Advisor. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated by this Agreement or any
Additional Agreement based upon arrangements made by or on behalf of
National or its Affiliates.
3.7 Compliance with Applicable Laws. National and its
subsidiaries collectively hold all permits, licenses, variances,
exemptions, orders and approvals of all courts, administrative agencies
or commissions or other governmental authorities or instrumentalities,
domestic or foreign (each, a "Governmental Entity") required to conduct
the Business, perform their respective obligations under the Assigned
Contracts or own the Assets (the "Permits"), except for such Permits the
failure of which, individually or in the aggregate, to hold would not
have a Material Adverse Effect. National and its subsidiaries are in
compliance with the terms of the Permits, except for such failures to
comply which, singly or in the aggregate, would not have a Material
Adverse Effect. The Business is not being, and has not been, conducted
in violation of any law, ordinance or regulation of any Governmental
Entity, except for possible violations which, individually or in the
aggregate, do not and would not have a Material Adverse Effect. No
investigation or review by any Governmental Entity with respect to the
Business is pending or, to the knowledge of National, threatened, nor
has any Governmental Entity indicated an intention to conduct the same,
other than those the outcome of which would not have a Material Adverse
Effect.
3.8 Taxes. Each of National and its subsidiaries has filed all
material tax returns, declarations and reports required to be filed by
any of them (taking into account all valid extensions of filing dates)
and has paid (or National has paid on their behalf), or has set up an
adequate liability reserve in accordance with GAAP for the payment of,
all material taxes shown as due thereon. Neither National nor any
subsidiary of National is delinquent in the payment of any tax,
assessment or governmental charge, except where such delinquency has not
had or would not reasonably be expected to have, a Material Adverse
Effect. As of the date hereof, no material deficiencies for any taxes
have been proposed, asserted or assessed against National or any of its
subsidiaries that have not been finally settled or paid in full and no
requests for waivers of the time to assess any such tax are pending. As
of the date hereof, no material tax return, declaration or report is
under audit by any taxing authority, and as of the date hereof no
written notice of any such audit has been received. There are no
Encumbrances for taxes on the Assets other than Permitted Encumbrances.
The representations and warranties set forth in this Section 3.8 are not
applicable to the extent that such Taxes do not constitute an
Encumbrance against the Assets or will not become a Liability of VIA.
For the purposes of this Agreement, the term "tax" includes all federal,
state, local and foreign income, profits, franchise, gross receipts,
payroll, sales, employment, use, property, withholding, excise and other
taxes, duties and assessments of any nature whatsoever together with all
interest, penalties and additions imposed with respect to such amounts.
3.9 Certain Agreements. Schedule 3.9 to the National Disclosure
Schedule sets forth a complete and accurate list of all material
agreements, contracts, leases, licenses, obligations and commitments
which are part of the Assets (the "Assigned Contracts"). All of the
material Assigned Contracts are valid, binding and enforceable in
accordance with their terms. National is not in default (and would not
be in default with notice or lapse of time, or both) under any Assigned
Contract, whether or not such default has been waived, which default,
alone or in the aggregate with other such defaults, would have a
Material Adverse Effect. Each of the Assigned Contracts is in full
force and effect and National is, and on the Closing Date, subject to
the receipt of all required consents, Sub will be, entitled to the full
benefit and advantage of each of the Assigned Contracts in accordance
with the terms thereof, except for such failures as would not,
individually or in the aggregate, have a Material Adverse Effect. To
the knowledge of National, there has not been any default by any party
under any Assigned Contract and there has not been any written dispute
between National and any party under any Assigned Contract, except for
such defaults and disputes as would not, individually or in the
aggregate, have a Material Adverse Effect.
3.10 Patents, Trademarks, Etc.
(a) National owns, or is licensed or otherwise has the right to
use, all patents, trademarks, trade names, service marks, maskworks, net
lists, schematics, inventories, technology, trade secrets, source codes,
know-how, computer software programs or applications and tangible or
intangible proprietary information or material that in any material
respect are used in the Business and are part of the Assets or the
National Licensed Technology (the "Intellectual Property Rights"), the
lack of which, individually or in the aggregate, would have a Material
Adverse Effect.
(b) No claims with respect to the Intellectual Property Rights
have been asserted or, to the knowledge of National, are threatened by
any Person, nor does National know of any valid grounds for any bona
fide claims against the use by National or its subsidiaries of the
Intellectual Property Rights which claims, insofar as reasonably can be
foreseen by National, would, individually or in the aggregate, have a
Material Adverse Effect. To National's knowledge, there has not been
and there is not any unauthorized use, infringement or misappropriation
of any of the Intellectual Property Rights by any third party, Employee
or former employee which, individually or in the aggregate, would result
in a Material Adverse Effect.
(c) No Intellectual Property Right is subject to any outstanding
order, judgment, decree, stipulation or agreement restricting in any
manner the licensing thereof by National, except for such orders,
judgments, decrees, stipulations or agreements which, individually or in
the aggregate, would not have a Material Adverse Effect. Neither
National nor any subsidiary thereof has entered into any agreement to
indemnify any other Person against any charge of infringement of any
Intellectual Property Right, except infringement indemnities agreed to
in the ordinary course included as part of either the applicable license
agreements or terms of sale. Neither National nor any subsidiary
thereof has entered into any agreement granting any third party the
right to bring infringement actions with respect to, or otherwise to
enforce rights with respect to, any Intellectual Property Rights.
3.11 Environmental Matters.
(a) As used herein, the term "Environmental Laws" means all
federal, state or local laws relating to pollution or protection of
human health or the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata),
including, without limitation, laws relating to emissions, discharges,
releases or threatened releases of chemicals, pollutants, contaminants,
or industrial, toxic or hazardous substances or wastes into the
environment, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of chemicals, pollutants, contaminants, or industrial, toxic or
hazardous substances or wastes, as well as all authorizations, codes,
decrees, demands or demand letters, injunctions, judgments, licenses,
notices or notice letters, orders, permits, plans or regulations issued,
entered, promulgated or approved thereunder.
(b) To the knowledge of National, there are, with respect to
National and its subsidiaries, no past or present violations of
Environmental Laws, releases of any material into the environment,
actions, activities, circumstances, conditions, events, incidents, or
contractual obligations, in each case relating to the Business, which
may give rise to any common law liability or any liability under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980 or similar state or local laws, which liabilities, either
individually or in the aggregate, would have a Material Adverse Effect.
3.12 Organization and Qualification of Sub. As of the Closing,
Sub will be a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
3.13 Capitalization of Sub. As of the Closing, the authorized
capital stock of Sub will consist of 1,000 shares of common stock, of
which 100 shares will be issued and outstanding. Immediately prior to
the sale by National to Via of the Shares, National will own the Shares
free and clear of any Encumbrances, other than those arising under this
Agreement. All of the outstanding shares of Sub have been, or on or
before the Closing will have been, duly and validly authorized and
issued, and are, or at the time of the Closing will be, fully paid and
non-assessable. No Person has, or at the time of the Closing will have,
any preemptive rights or any other right or option to acquire the Shares
and neither National nor Sub will grant any such rights, unless this
Agreement terminates.
3.14 No Implied Representation. NOTWITHSTANDING ANYTHING
CONTAINED HEREIN, VIA AND NATIONAL ACKNOWLEDGE AND AGREE THAT NONE OF
NATIONAL OR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES OR REPRESENTATIVES
IS MAKING ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED,
BEYOND THOSE EXPRESSLY GIVEN IN THIS AGREEMENT OR THE ADDITIONAL
AGREEMENTS, WHETHER OR NOT ANY MAY BE CONTAINED IN OR REFERRED TO IN ANY
EVALUATION MATERIALS THAT HAVE BEEN OR SHALL HEREAFTER BE PROVIDED TO
VIA OR ITS AFFILIATES, AGENTS, EMPLOYEES OR REPRESENTATIVES.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF VIA
VIA hereby represents and warrants to National, except as set
forth in the disclosure schedule delivered by VIA concurrently herewith
(the "VIA Disclosure Schedule"), as follows:
4.1 Organization. VIA is a corporation duly organized, validly
existing and in good standing under the laws of Taiwan and has the
corporate power to carry on its business as it is now being conducted or
currently proposed to be conducted.
4.2 Authority Relative to this Agreement. The execution,
delivery and performance by VIA and its Affiliates of this Agreement and
the Additional Agreements to which VIA or its Affiliates is a party or
by which VIA or its Affiliates is bound has been duly and validly
authorized by the Board of Directors of VIA and by all other necessary
corporate action on the part of VIA and its Affiliates. This Agreement
and the Additional Agreements to which VIA or its Affiliates is a party
or by which VIA or its Affiliates is bound constitute the legally valid
and binding obligation of such Person enforceable against such Person in
accordance with their terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws and equitable principles limiting creditors' rights
generally. Neither VIA nor its Affiliates is subject to or obligated
under (i) any provision of its organizational documents or (ii) any
indenture or other loan document, contract, license, franchise, permit,
order, decree, concession, lease, instrument, judgment, statute, law,
ordinance, rule or regulation applicable to VIA or its Affiliates or
their respective properties or assets which would be breached or
violated, or under which there would be a default (with or without
notice or lapse of time, or both), or under which there would arise a
right of termination, cancellation or acceleration of any obligation or
the loss of a material benefit, by its executing and carrying out this
Agreement or the Additional Agreements to which VIA or its Affiliates is
a party or by which such Person is bound, other than, in the case of
clause (ii) only, (A) any breaches, violations, defaults, terminations,
cancellations, accelerations or losses which, either individually or in
the aggregate, will not have a material adverse effect on the ability of
VIA or its Affiliates to consummate the transactions contemplated hereby
or by the Additional Agreements, to which they are a party or by which
they are bound and (B) the laws and regulations referred to in the next
sentence. Except as referred to herein or, in connection, or in
compliance, with the provisions of the HSR Act, and any foreign
counterparts thereof, the Exon-Florio Act, the International Investment
and Trade in Services Survey Act and the environmental, corporation,
securities or blue sky laws or regulations of the various states, no
filing or registration with, or authorization, consent or approval of,
any public body or authority is necessary for the consummation by VIA or
its Affiliates of the transactions contemplated by this Agreement or the
Additional Agreements to which VIA or its Affiliates is a party or by
which VIA or its Affiliates are bound, other than filings,
registrations, authorizations, consents or approvals the failure of
which to make or obtain would not, individually or in the aggregate,
have a material adverse effect on the ability of Via or its Affiliates
to consummate the transactions contemplated hereby or by the Additional
Agreements to which VIA or its Affiliates is a party or by which Via or
its Affiliates is bound.
4.3 Financial Advisor. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated by this Agreement or the
Additional Agreements based upon arrangements made by or on behalf of
VIA or its Affiliates.
4.4 Legal Proceedings. There is no order or action of any
Governmental Entity or arbitrator pending, or to the knowledge of VIA,
threatened, against or affecting VIA, its Affiliates or any of their
respective properties or assets that individually or when aggregated
with one or more other actions has or, if determined adversely to the
interest of VIA or its Affiliates, might reasonably be expected to have,
a material adverse effect on the ability of VIA or its Affiliates to
perform their obligations under this Agreement or any Additional
Agreement to which such Person is a party or by which it is bound.
4.5 Financial Capability. VIA has, or has a firm written
commitment from a lending institution for (a copy of which has been
delivered to National), and will have on the Closing Date, sufficient
funds available to it to pay the Purchase Price and to consummate the
other transactions contemplated by this Agreement and the Additional
Agreements to which VIA or any Affiliate thereof is a party or by which
it is bound, including the payment of all Operating Expenses.
4.6 Foreign Investor. VIA hereby represents that it has
satisfied itself as to the full observance of the laws of its
jurisdiction in connection with any purchase of the Shares, including
(i) the legal requirements within its jurisdiction for the purchase of
the Shares, (ii) any governmental or other consents that may need to be
obtained, and (iii) the income tax and other tax consequences, if any,
that may be relevant to the purchase of the Shares.
4.7 Financial Statements. VIA has delivered to National its
Annual Report for the year ended December 31, 1998. As of such date,
the Annual Report was true and accurate in all material respects. The
financial information contained in the Annual Report is complete and
accurately reflects the financial position of VIA as of such date and
its results of operations and changes in financial position for the
period then ended.
4.8 Investment Representations.
(a) VIA is acquiring the Shares for investment for its own
account and not with a view to, or for resale in connection with, the
distribution thereof.
(b) VIA's knowledge and experience in financial and business
matters are such that it is capable of evaluating the merits and risks
of its acquisition of the Shares. VIA is a sophisticated Person and is
relying upon its due diligence investigations.
(c) VIA's financial condition is such that it can afford to bear
the economic risk of holding the Shares for an indefinite period of time
and has adequate means for providing for its current needs and
contingencies and to suffer a complete loss of its investment in the
Shares.
(d) VIA is an "accredited investor" as defined in Rule 501 under
the Securities Act of 1933 (the "Securities Act").
(e) VIA has been advised that (i) the Shares have not been
registered under the Securities Act, (ii) the Shares may need to be held
indefinitely, and VIA must continue to bear the economic risk of the
investment in the Shares unless they are subsequently registered under
the Securities Act or an exemption from such registration is available,
(iii) there is not a public market for the Shares, (iv) when and if the
Shares may be disposed of without registration in reliance on Rule 144
promulgated under the Securities Act, such disposition can be made only
in limited amounts in accordance with the terms and conditions of such
Rule and (v) if the Rule 144 exemption is not available, public sale
without registration will require compliance with an exemption under the
Securities Act.
ARTICLE V.
ACTIONS PRIOR TO THE CLOSING
5.1 Conduct of Business. During the period beginning on the date
hereof and ending on the Closing Date, (i) National will use its
commercially reasonable efforts and will cause its subsidiaries to use
their commercially reasonable efforts to preserve the goodwill of
customers, suppliers and others having business relations with National
and its subsidiaries concerning the Business, and (ii) National and VIA
will consult with each other concerning VIA's efforts to keep the
services of the Employees that VIA may wish to retain as employees.
Nothing in this Section 5.1 shall obligate National, VIA or any
subsidiary of either after the Closing to retain or offer employment to
any Person. Except as contemplated hereby, during the period beginning
on the date hereof and ending on the Closing Date, National will not,
and will cause its subsidiaries not to, without the prior written
consent of VIA (which consent shall not be unreasonably withheld):
(a) modify any Assigned Contract in any manner other than in the
ordinary course of business, or terminate any Assigned Contract prior to
its expiration;
(b) dispose of or fail to preserve, other than in the ordinary
course of business, any Intellectual Property Rights, trade secrets or
any material rights to the use thereof;
(c) sell, assign, transfer, convey, lease, mortgage, pledge or
otherwise dispose of or encumber any of the Assets, or any interests
therein, except in the ordinary course of business;
(d) increase any Assumed Liability, except in the ordinary
course of business, consistent with past practices;
(e) fail to maintain the material tangible Assets in
substantially their current state of repair, excepting normal wear and
tear, or fail to replace consistent with past practice inoperable, worn-
out or obsolete or destroyed Assets material to the Business;
(f) fail to comply in all material respects with any material
regulations applicable to the Assets and the Business;
(g) modify any license which is an Assigned Contract; or
(h) agree to or make any commitment to take any actions
prohibited by this Section 5.1.
Nothing in the foregoing Section 5.1 shall restrict National's
right to sell or enter into an agreement to sell its manufacturing
facility in South Portland, Maine or to terminate any Employee who is
not a Selected Employee.
5.2 Investigation by the Parties.
(a) Subject to the Confidentiality Agreement between National
and VIA dated as of May 13, 1999 (the "Confidentiality Agreement"), from
the date hereof through the Closing, National shall afford the officers,
directors, principals, attorneys and agents (such Persons,
"Representatives") of VIA reasonable access during normal business
hours, upon reasonable notice and in such manner as will not
unreasonably interfere with the conduct of National's or Cyrix's
business, to all of Cyrix's properties, books, records, operating
instructions and procedures and all other information with respect to
the Business as VIA may from time to time request.
(b) Subject to the Letter Agreement between National and VIA
dated as of July 14, 1999 (the "Letter Agreement"), from the date hereof
through the Closing, VIA shall afford the Representatives of National
reasonable access during normal business hours, upon reasonable notice
and in such manner as will not unreasonably interfere with the conduct
of VIA's business, to all of VIA's financial information as National may
from time to time request.
5.3 Government Filings. National and VIA shall promptly make any
and all filings required by them and their respective Affiliates under
the HSR Act and the Exon-Florio Act and any other law requiring filings
with any Governmental Entity with respect to the transactions
contemplated by this Agreement and the Additional Agreements. National
and VIA agree to use their reasonable efforts to obtain all approvals
required under the HSR Act and any foreign counterparts thereof and
Exon-Florio Act to consummate the transactions contemplated by this
Agreement. Subject to such confidentiality restrictions as may be
reasonably requested, National and VIA and their respective Affiliates
shall furnish each other such necessary information and reasonable
assistance as the other may reasonably request in connection with its
preparation of necessary filings or submissions under the provisions of
such laws. National and VIA and their respective Affiliates will supply
to each other copies of all correspondence, filings or communications,
by such parties with any Governmental Entity or members of its staff,
with respect to the transactions contemplated by this Agreement and the
Additional Agreements. National and VIA and their respective Affiliates
shall each pay their respective costs and expenses incurred under this
Section 5.3.
5.4 Further Assurances. Upon the terms and subject to the
conditions contained herein, the parties agree, in each case both before
and after the Closing, (i) to use all reasonable efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable to consummate and make effective
the transactions contemplated by this Agreement and the Additional
Agreements, (ii) to execute any documents, instruments or conveyances of
any kind which may be reasonably necessary or advisable to carry out any
of the transactions contemplated hereunder and thereunder, and (iii) to
cooperate with each other in connection with the foregoing; provided,
however, nothing in the foregoing shall obligate a party to commence or
pursue any judicial proceeding.
5.5 Schedules.
(a) Subject to Section 10.1(a)(v), the parties acknowledge and
agree that from the date hereof until the date which is five business
days prior to the Closing Date, National shall (i) be able to change,
update and amend any schedule which is part of the National Disclosure
Schedule and (ii) with the consent of VIA, in its sole discretion, be
able to change, update and amend Schedule 2.2(a) or 2.2(b).
(b) To the extent that, prior to Closing, VIA determines in good
faith that any patent relating primarily to the Business should be
included on Schedule 2.2(a) and is not so included, VIA shall have the
right to request that such patent be added to Schedule 2.2(a).
(c) On or before the date which is five business days prior to
the Closing Date, Via will notify National of any Assigned Contract
listed on Schedule 3.9 to be removed from such Schedule, which contract
shall be so removed and shall not constitute an Assigned Contract.
5.6 Operating Expenses. In the event that National does not
terminate this Agreement pursuant to Section 10.1(a)(ii), VIA agrees
that VIA will be responsible for and will pay to National all Operating
Expenses. VIA will pay all Operating Expenses in U.S. dollars, in
advance, on a weekly basis, starting September 1, 1999, by wire transfer
to an account designated by National.
ARTICLE VI.
CONDITIONS TO VIA's OBLIGATIONS
The obligations of VIA to consummate the Closing are subject, in
the discretion of VIA, to the satisfaction or waiver, on or prior to the
Closing Date, of each of the following conditions:
6.1 Representations and Warranties. Each of the representations
and warranties of National set forth in this Agreement that is qualified
as to materiality or Material Adverse Effect shall have been true and
correct when made and shall be true and correct on and as of the Closing
Date as if made on and as of such date (other than representations and
warranties which address matters only as of a certain date which shall
be true and correct as of such certain date), and each of the
representations and warranties of National that is not so qualified
shall have been true and correct in all material respects
when made and shall be true and correct in all material respects on and
as of the Closing Date as if made on and as of such date (other than
representations and warranties which address matters only as of a
certain date which shall be true and correct in all material respects as
of such certain date).
6.2 Performance and Compliance. National shall have performed
and satisfied in all material respects all agreements and covenants
required to be performed by it under this Agreement prior to the Closing
Date.
6.3 Consents and Approvals. All consents, approvals and waivers
from Governmental Entities necessary for consummation of the
transactions contemplated by this Agreement to occur on the Closing Date
shall have been obtained. The applicable waiting periods under the HSR
Act and the Exon-Florio Act shall have expired or been terminated.
6.4 No Court Orders. There shall not be any regulation or Court
Order in effect on the Closing Date that makes the transactions
contemplated hereby illegal or otherwise prohibited.
6.5 Opinion of Counsel. VIA shall have received an opinion of
John M. Clark III, Secretary and General Counsel of National, dated as
of the Closing Date, in form and substance reasonably acceptable to VIA.
6.6 Additional Agreements. National shall have delivered or
caused to be delivered to VIA duly authorized and executed copies of the
Additional Agreements to which National or any Affiliate thereof is a
party, and such agreements shall be in full force and effect.
6.7 Title Policy. National shall deliver a good and valid,
irrevocable ALTA extended form title insurance policy (or a signed pro
forma policy) insuring, or committing the title company to insure, Sub's
fee title to the Richardson Facility.
ARTICLE VII.
CONDITIONS TO NATIONAL'S OBLIGATIONS
The obligations of National to consummate the Closing are subject,
in the discretion of National, to the satisfaction or waiver, on or
prior to the Closing Date, of each of the following conditions:
7.1 Representations and Warranties. Each of the representations
and warranties of VIA set forth in this Agreement that is qualified as
to materiality shall have been true and correct when made and shall be
true and correct on and as of the Closing Date as if made on and as of
such date (other than representations and warranties which address
matters only as of a certain date which shall be true and correct as of
such certain date), and each of the representations and warranties of
VIA that is not so qualified shall have been true and correct in all
material respects when made and shall be true and correct in all
material respects on and as of the Closing Date as if made on and as of
such date (other than representations and warranties which address
matters only as of a certain date which shall be true and correct in all
material respects as of such certain date).
7.2 Performance and Compliance. VIA shall have performed and
satisfied in all material respects all agreements and covenants required
to be performed by it under this Agreement prior to or on the Closing
Date.
7.3 Consents and Approvals. All consents, approvals and waivers
from Governmental Entities necessary for consummation of the
transactions contemplated by this Agreement to occur on the Closing Date
shall have been obtained. The applicable waiting periods under the HSR
Act and the Exon-Florio Act shall have expired or been terminated.
7.4 No Court Orders. There shall not be any regulation or Court
Order in effect on the Closing Date that makes the transactions
contemplated hereby illegal or otherwise prohibited.
7.5 Opinion of Counsel. VIA shall have delivered to National an
opinion of Pachulski, Stang, Ziehl & Young P.C., counsel to VIA (or
other counsel acceptable to National), dated as of the Closing Date, in
form and substance reasonably acceptable to National.
7.6 Additional Agreements. VIA shall have delivered or caused to
be delivered to National duly authorized and executed copies of the
Additional Agreements to which VIA or any Affiliate thereof is a party,
and such agreements shall be in full force and effect.
ARTICLE VII.
ACTIONS BY NATIONAL AND VIA AFTER THE CLOSING
8.1 General. In case at any time after the Closing Date any
further action is necessary or desirable to carry out the purposes of
this Agreement, each of the parties will take such further action
(including the execution and delivery of such further instruments and
documents) as any other party reasonably may request, all at the sole
cost and expense of the requesting party.
8.2 Employee Matters. After the Closing Date, National shall be
solely responsible for, and will honor in accordance with their terms,
all severance and similar compensation policies of National applicable
to Employees. VIA will (i) grant each Employee employed by VIA or any
of its Affiliates immediately after the Closing Date credit for all
accrued vacation amounts for service performed for National (the
"Accrued Vacation Amount"), and (ii) assume from National the Accrued
Vacation Amount.
8.3 Nonsolicitation.
(a) National. During the one-year period after Closing, neither
National nor its Affiliates shall directly or indirectly solicit for
employment any persons then employed by VIA.
(b) VIA. During the one-year period after Closing, neither VIA
nor its Affiliates shall directly or indirectly solicit for employment
any persons then employed by National or its Affiliates.
(c)Exceptions. Notwithstanding Section 8.3(a) and 8.3(b), the
parties and their Affiliates shall be permitted to solicit for
employment any person who initiates discussions regarding employment and
to place general advertisements soliciting employees.
8.4 Name Following the Closing. After the Closing Date, National
will, if requested by VIA, cause Cyrix to file an Amendment to its
Certificate of Incorporation to change its name to a name mutually
agreeable to National and VIA.
8.5 Customers/Product Returns. All obligations and Liabilities
of National and its Affiliates with respect to any inventory transferred
to VIA as part of the Assets which are shipped or otherwise provided by
VIA to third parties on or after the Closing shall be for the exclusive
account of VIA and included within the meaning of the defined term
"Assumed Liabilities". All obligations and Liabilities of National and
its Affiliates with respect to any inventory which are shipped or
otherwise provided by National to third parties prior to the Closing
shall be for the exclusive account of National and included within the
meaning of the defined term "Excluded Liabilities". Each party hereby
agrees to use its commercially reasonable efforts to cooperate with the
other to effect the intent of the foregoing.
8.6 Confidentiality.
(a) In connection with the performance of obligations hereunder
and the Additional Agreements prior to and after the Closing, each party
hereto acknowledges that it has had and will have access to confidential
information relating to the other party and its Affiliates. Such
confidential information includes technical, financial, manufacturing or
marketing information, ideas, methods, developments, improvements,
business plans or other proprietary information relating thereto,
together with analyses, compilations, studies or other documents,
records or data prepared by the parties and their Affiliates and their
respective Representatives which contain or otherwise reflect or are
generated from such information ("Confidential Information"). The term
"Confidential Information" does not include information received by a
party in connection with the transactions contemplated hereby or by the
Additional Agreements which (i) is or becomes generally available to the
public other than as a result of a disclosure by such party or its
Representatives, (ii) becomes available to a party on a non-confidential
basis from a source that is not bound by a confidentiality agreement
with, or other contractual, legal or fiduciary obligation of
confidentiality to, the party claiming ownership of the Confidential
Information or any other Person with respect to such information or
(iii) is independently developed by the disclosing Party after the
Closing Date.
(b) Each party shall, and shall cause its Affiliates and their
Representatives to treat all Confidential Information as confidential,
preserve the confidentiality thereof and not disclose any Confidential
Information, except to such party's Affiliates and its and their
Representatives who need to know such Confidential Information in
connection with the transactions contemplated hereby and by the
Additional Agreements. Each party shall be responsible for any breach
of this Agreement by such party or any of its Affiliates or their
Representatives. If Confidential Information is disclosed, each party
shall immediately notify the aggrieved Person in writing and take all
reasonable steps required to prevent further disclosure.
(c) If a party or its Affiliates or their Representatives are
requested or required (by statute, oral questions, interrogatories,
requests for information or documents in legal proceedings, subpoena,
civil investigative demand or other similar process) to disclose any
Confidential Information, such Person shall provide the party claiming
ownership of the Confidential Information with prompt written notice of
such request or requirement, which notice shall, if practicable, be at
least 48 hours prior to making such disclosure, so that such Person may
seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Agreement. If, in the absence of
a protective order or other remedy or the receipt of such a waiver, the
party or its Affiliate or their Representative is nonetheless, in the
opinion of counsel, legally compelled to disclose Confidential
Information, then the party or its Affiliate or Representative may
disclose that portion of the Confidential Information which such counsel
advises is legally required to be disclosed, provided the party or its
Affiliate or Representative uses its reasonable efforts to preserve the
confidentiality of the Confidential Information, whereupon such
disclosure shall not constitute a breach of this Agreement.
(d) The provisions of this Section 8.6 shall survive with
respect to a given item of Confidential Information for a period of five
years from the initial disclosure of such Confidential Information to
the recipient.
8.7 Consents. The parties shall use their respective reasonable
efforts to obtain as promptly as possible, to the extent not obtained by
the Closing, all consents of third Persons referenced in Schedule 3.2 of
the National Disclosure Schedule. Notwithstanding the foregoing, this
Agreement shall not constitute an agreement to assign any Assigned
Contract, Permit or any claim or right or any benefit arising thereunder
or resulting therefrom if an attempted assignment thereof, without the
consent of a third party thereto, would constitute a default thereof or
in any way adversely affect the rights of VIA thereunder. If such
consent is not obtained, or if an attempted assignment thereof would be
ineffective or would affect the rights thereunder so that VIA would not
receive all such rights, National will cooperate with VIA, in all
reasonable respects, to provide to VIA the benefits under any such
Assigned Contract, Permit or any claim or right, including without
limitation enforcement for the benefit of VIA of any and all rights of
National against a third party thereto arising out of the default or
cancellation by such third party or otherwise.
8.8 Information. Each party agrees that it will cooperate with
and make available for review and reproduction to the other party,
during normal business hours, all books, records, information and
employees (without substantial disruption of employment) retained and
remaining in existence after the Closing which are necessary or useful
in connection with any tax inquiry, audit, investigation or dispute, any
litigation or investigation or any other matter requiring any such
books, records, information or employees for any reasonable business
purpose (subject to any limitations that are reasonably required to
preserve any applicable attorney-client privilege). The party
requesting any such books, records, information or employees shall bear
all of the out-of-pocket costs and expenses (including without
limitation attorneys' fees, but excluding reimbursement for salaries and
employee benefits) reasonably incurred in connection with providing such
books, records, information or employees. All information received
pursuant to this Section shall be subject to the terms of Section 8.6.
Each party further agrees to retain all books, records and information
covered by this Section 8.8 for a period of at least three years after
the Closing Date.
ARTICLE IX.
INDEMNIFICATION
9.1 Survival of Representations. All statements contained in
this Agreement, any schedule or in any certificate or instrument of
conveyance delivered by or on behalf of the parties pursuant to this
Agreement or in connection with the transactions contemplated hereby
shall be deemed to be representations and warranties by the parties
hereunder. The representations and warranties of the parties contained
herein shall survive the Closing Date for a period of (and claims based
upon or arising out of such representations and warranties may be
asserted at any time before the date which shall be) six months after
the Closing Date; provided, however, the representations of National in
Section 3.8 (Taxes) and Section 3.11 (Environmental Matters) shall
survive until the expiration of the relevant statute of limitations
(including any extensions thereof). The termination of the
representations and warranties provided herein shall not affect the
rights of a party in respect of any claim made by such party in a
writing received by the other party prior to the expiration of the
applicable survival period provided herein.
9.2 Indemnification.
(a) National. National shall indemnify, save and hold harmless
VIA and its Affiliates and its and their respective Representatives from
and against any and all out of pocket costs, losses, taxes, liabilities,
obligations, damages, lawsuits, deficiencies, claims, demands, and
expenses (whether or not arising out of third-party claims), including
interest, penalties, costs of mitigation, damages to the environment,
attorneys' fees and all amounts paid in investigation, defense or
settlement of any of the foregoing, in each case after taking into
account any insurance proceeds received by the indemnified Person and
related tax benefits (provided, however, that the prior receipt of
insurance proceeds and tax benefits shall not be a precondition to
recovery) (herein, "Damages"), incurred in connection with, arising out
of, resulting from or incident to:
(i) any breach of any representation or warranty made by
National in this Agreement (for purposes solely of this Section 9.2(i),
no effect shall be given to the terms "material" or "Material Adverse
Effect" or words of similar import contained in Article III hereof);
provided, however, that the foregoing shall not apply to Damages
incurred in connection with, arising out of, resulting from or in any
way related to the matters addressed by Section 9.2(iii);
(ii) any breach of any covenant or agreement made by National
in this Agreement (for purposes solely of this Section 9.2(ii), no
effect shall be given to the terms "material" or "Material Adverse
Effect" or words of similar import contained in Article V hereof);
(iii) notwithstanding anything to the contrary contained in
Section 9.1 hereof, any suit or legal proceeding brought against VIA
within a period of one year after the Closing Date by any third party in
any way incurred in connection with, arising out of, resulting from or
in any way related to a claim that the Intellectual Property Rights
infringe on the intellectual property rights of such third party; and
(iv) any Excluded Liabilities.
The term "Damages" is not limited to matters asserted by third
parties against an indemnified Person, but includes Damages incurred or
sustained by the indemnified Person in the absence of third party
claims. "Damages" shall not include indirect, special, incidental or
consequential damages.
(b) VIA. VIA shall indemnify, save and hold harmless National
and its Affiliates and its and their respective Representatives from and
against any and all Damages, incurred in connection with, arising out
of, resulting from or incident to:
(i) any breach of any representation or warranty made by VIA
in this Agreement; and
(ii) any breach of any covenant or agreement made by VIA in
this Agreement.
(c) Procedure for Claims between Parties. If a claim for
Damages is to be made by a party entitled to indemnification hereunder,
the party claiming such indemnification shall give written notice to the
indemnifying party as soon as practicable after the indemnified Person
becomes aware of any fact, condition or event which may give rise to
Damages for which indemnification may be sought under this Section 9.2.
Any failure to submit any such notice of claim to the indemnifying
Person(s) shall not relieve such Person(s) of any liability hereunder,
except to the extent such Person(s) is actually prejudiced by such
failure. The indemnifying Person(s) shall be deemed to have accepted
the notice of claim and to have agreed to pay the Damages at issue if
such Person(s) does not send a notice of disagreement to the indemnified
Person within 20 calendar days after receiving the notice of claim. In
the case of a disputed claim, the parties shall use reasonable best
efforts to resolve the matter internally on an expeditious basis and in
any event within 45 calendar days after the notice is received by the
indemnifying Person(s).
(d) Defense of Third Party Claims. If any lawsuit or
enforcement action is filed against any indemnified Person, written
notice thereof shall be given to the indemnifying Person(s) as promptly
as practicable (and in any event within 15 calendar days after the
service of the citation or summons). The failure of any indemnified
Person to give timely notice hereunder shall not affect rights to
indemnification hereunder, except to the extent that the indemnifying
Person(s) demonstrate they were actually prejudiced by such failure.
After such notice, if the indemnifying Person(s) shall acknowledge in
writing to the indemnified Person that the indemnifying Person(s) shall
be obligated under the terms of its indemnity hereunder in connection
with such lawsuit or action, then the indemnifying Person(s) shall be
entitled, if its so elects at its own cost, risk and expense, (i) to
take control of the defense and investigation of such lawsuit or action,
(ii) to employ and engage attorneys of their own choice to handle and
defend the same unless the named parties to such action or proceeding
include both an indemnifying Person and the indemnified Person and the
indemnified Person has been advised in writing by counsel that there may
be one or more legal defenses available to such indemnified Person that
are different from or additional to those available to the indemnifying
Person(s), in which event the indemnified Person shall be entitled, at
the indemnifying Person(s)'s cost, risk and expense, to separate counsel
of its own choosing, and (iii) to compromise or settle such claim, which
compromise or settlement shall be made only with the written consent of
the indemnified Person, such consent not to be unreasonably withheld.
The indemnified Person shall cooperate in all reasonable respects with
the indemnifying Person(s) and its attorneys in the investigation, trial
and defense of such lawsuit or action and any appeal arising therefrom;
provided, however, that the indemnified Person may, at its own cost,
participate in the investigation, trial and defense of such lawsuit or
action and any appeal arising therefrom. The parties shall cooperate
with each other in any notifications to insurers. If the indemnifying
Person fails to assume the defense of such claim within 15 calendar days
after receipt of the notice of claim, the indemnified Person against
which such claim has been asserted will (upon delivering notice to such
effect to the indemnifying Person) have the right to undertake, at the
indemnifying Person's cost, risk and expense, the defense, compromise or
settlement of such claim on behalf of and for the account and risk of
the indemnifying Person; provided, however, that such claim shall not be
compromised or settled without the written consent of the indemnifying
Person, which consent shall not be unreasonably withheld. If the
indemnified Person assumes the defense of the claim, the indemnified
Person will keep the indemnifying Person reasonably informed of the
progress of any such defense, compromise or settlement. The
indemnifying Person shall be liable for any settlement of any action
effected pursuant to and in accordance with this Section 9.2 and for any
final judgment (subject to any right of appeal), and the indemnifying
Persons agree to indemnify and hold harmless an indemnified Person from
and against any Damages by reason of such settlement or judgment.
(e) Brokers and Finders. Pursuant to the provisions of this
Section 9.2, VIA, on the one hand, and National, on the other, shall
indemnify, hold harmless and defend the other from the payment of any
and all brokers' and finders' expenses, commissions, fees or other forms
of compensation which may be due or payable from or by the indemnifying
party, or may have been earned by any third party acting on behalf of
the indemnifying party in connection with the negotiation and execution
hereof and the consummation of the transactions contemplated hereby.
(f) Limitations.
(i) The obligation of National to indemnify VIA and the other
indemnified Persons under this Section 9.2 shall be VIA's sole remedy
under this Agreement against National and its Affiliates. No monetary
amount shall be payable hereunder by National to VIA and the other
indemnified Persons until the aggregate amount of Damages actually
incurred exceed $350,000 (the "Damage Threshold"), in which event
National shall be responsible for all such Damages, including Damages
included in the Damage Threshold; provided, that in no event shall the
aggregate cumulative liability of National under (A) Sections 9.2(a)(i)
and 9.2(a)(ii) of this Agreement exceed $7,500,000 or (B) Section
9.2(a)(iii) of this Agreement exceed $7,500,000. Notwithstanding the
foregoing clause (A), Damages arising from any breaches of Section
3.3(a) shall not be subject to any maximum dollar limit.
(ii) The obligation of VIA to indemnify National and the other
indemnified Persons under this Section 9.2 shall be National's sole
remedy under this Agreement against VIA and its Affiliates. No monetary
amount shall be payable hereunder by VIA to National and the other
indemnified Persons until the aggregate amount of Damages actually
incurred exceed the Damage Threshold, in which event VIA shall be
responsible for all such Damages, including Damages included in the
Damage Threshold.
(iii) Notwithstanding Sections 9.2(f)(i) and 9.2(f)(ii), the
parties agree that they shall each have the right to seek injunctive
relief to enjoin any breach or violation of Section 8.6.
ARTICLE X.
MISCELLANEOUS
10.1 Termination.
(a) This Agreement may be terminated at any time prior to
Closing:
(i) By mutual written consent of National and VIA;
(ii) By National if the Closing shall not have occurred on or
before August 31, 1999; provided, however, that in the event National
does not terminate this Agreement in accordance with this Section
10.1(a)(ii), Via will pay to National all Operating Expenses in
accordance with Section 5.6 hereof; provided, further, however, that
National may terminate this Agreement if the Closing shall not have
occurred on or before October 15, 1999;
(iii) By National in the event of a material breach by VIA of
any representation, warranty or agreement contained herein which has not
been cured or is not curable within thirty days of such breach;
(iv) By VIA in the event of a material breach by National of
any representation, warranty or agreement contained herein which has not
been cured or is not curable within thirty days of such breach;
(v) By VIA in the event that any change, update or amendment
to any Schedule included in the National Disclosure Schedule or Schedule
2.2(a) or 2.2(b) reflects any circumstance, effect or change which has,
or is reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect; and
(vi) By VIA in the event that National does not add to
Schedule 2.2(a) patents that VIA has requested be so included in
accordance with, and subject to, the provisions of Section 5.5(b).
(b) In the event of termination of this Agreement the provisions
of the Confidentiality Agreement and Letter Agreement shall continue in
full force and effect.
(c) The parties acknowledge and agree that it would be difficult
to determine the amount of damages due to either party if this Agreement
is terminated in accordance with Section 10.1(a)(iii) or 10.1(a)(iv).
In the event of a termination by National pursuant to Section
10.1(a)(iii), then VIA shall pay National a cash fee in the amount of
$8,000,000, which shall be payable by wire transfer of immediately
available funds no later than two business days after such termination.
In the event of a termination by VIA pursuant to Section 10.1(a)(iv),
then National shall pay VIA a cash fee in the amount of $8,000,000,
which shall be payable by wire transfer of immediately available funds
no later than two business days after such termination.
10.2 Assignment; No Third Party Beneficiaries. Neither this
Agreement nor any of the rights or obligations hereunder may be
assigned, in whole or in part, by National without the prior written
consent of VIA, or by VIA without the prior written consent of National;
provided, however, VIA may assign, at Closing, its rights and
obligations under this Agreement to any wholly owned corporate
subsidiary who agrees in writing to be bound by the provisions of this
Agreement and thereupon Via shall be relieved of its rights and
obligations under this Agreement. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Nothing
herein expressed or implied shall give or be construed to give to any
Person, other than the parties hereto and such successors and assigns
and the Persons indemnified pursuant to Section 9.2 hereof, any legal or
equitable rights hereunder.
10.3 Notices. All notices, requests, demands and other
communications which are required or may be given under this Agreement
shall be in writing and shall be deemed to have been duly given when
received if personally delivered; when transmitted if transmitted by
confirmed facsimile; the day after it is sent, if sent for next day
delivery to a domestic address by recognized overnight delivery service
(e.g., Federal Express); and upon receipt, if sent by certified or
registered mail, return receipt requested, or overnight delivery service
to an address outside of the United States, as follows:
If to National, to:
National Semiconductor Corporation
1090 Kifer Road
Mail Stop 16-135
Sunnyvale, California 94086
Facsimile: (408) 733-0293
Attention: General Counsel
with a copy to:
Latham & Watkins
135 Commonwealth Drive
Menlo Park, California 94025
Facsimile: (650) 463-2600
Attention: Ora T. Fisher
If to VIA, to:
VIA Technologies, Inc.
1045 Mission Court
Fremont, California 94539
Facsimile: (510) 683-3300
Attention: Jonathan Chang
with a copy to:
Pachulski, Stang, Ziehl & Young
650 California Street, 15th Floor
San Francisco, California 94108
Facsimile: (415) 263-7010
Attention: William Weintraub
or to such other place and with such other copies as either party may
designate as to itself by written notice to the others.
10.4 Governing Law; Consent to Jurisdiction
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
(b) Each party hereby irrevocably and unconditionally submits,
for itself and its property, to the jurisdiction of the courts of the
State of California and of the United States District Court of the
Northern District of California, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that
either party may otherwise have to bring any action or proceeding
relating to this Agreement against the other or its properties in the
courts of any jurisdiction to enforce any judgment, order or process
entered by such courts situated within the State of California or to
enjoin any violations hereof or for relief ancillary hereto or for any
other lawful purpose. Each party further agrees that any action or
proceeding brought against the other, shall be brought only in the State
of California or to the extent permitted by law, in such Federal court.
(c) Each party hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection
that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any
court referred to in the immediately preceding section other than a
court referred to in the last sentence thereof that is not referred to
elsewhere therein. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in
any such court.
(d) Each party agrees that so long as any of its obligations
under this Agreement shall be outstanding, it shall maintain a duly
appointed agent for the service of summons and other legal process in
the State of California for purposes of any legal action, suit or
proceeding brought by the other in respect of such obligations, and
shall keep the other advised of the identity and location of such agent.
Each party further irrevocably consents, if for any reason there is no
authorized agent for the service of process in California, to the
service of process out of said courts by mailing copies thereof to the
other at its address for notices in Section 10.3. The serving of
process in the manner provided in this Section 10.4(d) shall be deemed
personal service and accepted by each party as such, and shall be valid
and binding upon each party for all the purposes of any action, suit or
proceeding in any jurisdiction. Nothing in this Agreement will affect
the right of any party to this Agreement to serve process in any other
manner permitted by law.
(e) To the extent that either party has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process
(whether from service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to
itself or its property, such party hereby irrevocably waives such
immunity in respect of its obligations under this Agreement.
10.5 Entire Agreement; Amendments and Waivers. This Agreement,
together with all exhibits and schedules hereto, and the Confidentiality
Agreement and Letter Agreement (which the parties agree shall terminate
on the Closing Date), constitute the entire agreement among the parties
pertaining to the subject matter hereof and supersede all prior
agreements, understandings, negotiations and discussions, whether oral
or written, of the parties. No supplement, modification or waiver of
this Agreement shall be binding unless executed in writing by the party
to be bound thereby. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
10.6 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
10.7 Invalidity. In the event that any one or more of the
provisions contained in this Agreement or in any other instrument
referred to herein, shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement
or any other such instrument.
10.8 Expenses. Except as otherwise provided in this Agreement,
National and VIA will each be liable for their own expenses incurred in
connection with the negotiation, preparation, execution and performance
of this Agreement, the Additional Agreements and the transactions
contemplated hereby and thereby.
10.9 Publicity. Except as required by law or on advice of
counsel, neither party nor any of their respective Affiliates shall
issue any press release or make any public statement regarding the
transactions contemplated hereby without the prior approval of the other
party, and the parties hereto shall issue a mutually acceptable press
release as soon as practicable after the date hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
or caused this Agreement to be duly executed on its behalf by its
officer thereunto duly authorized, as of the day and year first above
written.
NATIONAL SEMICONDUCTOR CORPORATION
By:
Name:
Its:
VIA TECHNOLOGIES, INC.
By:
Name:
Its:
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Defined Terms 3
1.3 Interpretation Provisions 4
ARTICLE II. FORMATION OF SUB, CONTRIBUTION OF ASSETS
AND SALE OF SHARES 4
2.1 Formation of NSC sub, Inc 4
2.2 Contribution of Assets 4
2.3 Purchase and Sale of Shares 5
2.4 Closing 5
2.5 Tax Matters 5
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF NATIONAL 5
3.1 Organization and Qualification 5
3.2 Authority Relative to this Agreement 6
3.3 Assets 6
3.4 Litigation 7
3.5 Labor Matters 7
3.6 Financial Advisor 7
3.7 Compliance with Applicable Laws 7
3.8 Taxes 8
3.9 Certain Agreements 8
3.10 Patents, Trademarks, Etc. 8
3.11 Environmental Matters 9
3.12 Organization and Qulification of Sub 9
3.13 Capitalization of Sub 9
3.14 No Implied Representation 10
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF VIA 10
4.1 Organization 10
4.2 Authority Relative to this Agreement 10
4.3 Financial Advisor 11
4.4 Legal Proceedings 11
4.5 Financial Capability 11
4.6 Foreign Investor 11
4.7 Financial Statements 11
4.8 Investment Representations 11
ARTICLE V. ACTIONS PRIOR TO THE CLOSING 12
5.1 Conduct of Business 12
5.2 Investigation by the Parties 13
5.3 Government Filings 13
5.4 Further Assurances 13
5.5 Schedules 13
5.6 Operating Expenses 14
ARTICLE VI. CONDITIONS TO VIA'S OBLIGATIONS 14
6.1 Representations and Warranties 14
6.2 Performance and Compliance 14
6.3 Consents and Approvals 14
6.4 No Court Orders 14
6.5 Opinion of Counsel 14
6.6 Additional Agreements 14
6.7 Title Policy 15
TABLE OF CONTENTS
(Continued) PAGE
ARTICLE VII. CONDITIONS TO NATIONAL'S OBLIGATIONS 15
7.1 Representations and Warranties 15
7.2 Performance and Compliance 15
7.3 Consents and Approvals 15
7.4 No Court Orders 15
7.5 Opinion of Counsel 15
7.6 Interpretation Provisions 15
ARTICLE VIII. ACTIONS BY NATIONAL AND VIA AFTER THE CLOSING 15
8.1 General 15
8.2 Employee Matters 16
8.3 Nonsolicitation 16
8.4 Name Following the Closing 16
8.5 Customers/Product Returns 16
8.6 Confidentiality 16
8.7 Opinion of Counsel 17
8.8 Additional Agreements 17
ARTICLE IX. INDEMINFICATION 18
9.1 Survival of Representations 18
9.2 Indemnification 18
ARTICLE X. MISCELLANEOUS 20
10.1 Termination 20
10.2 Assignment, No Third Party Beneficiaries 21
10.3 Notices 21
10.4 Governing Law; Consent to Juristiction 22
10.5 Entire Agreement; Amendments and Waivers 23
10.6 Counterparts 23
10.7 Invalidity 24
10.8 Expenses 24
10.9 Publicity 24
EXHIBITS
Exhibit A License Agreement
Exhibit B Assembly and Test Agreement
Exhibit C Foundry Agreement
Exhibit D Transition Services Agreement
Exhibit E Santa Clara Lease Agreement (Cyrix West)
Exhibit F Guaranty of FIC
EXHIBIT 99
TRANSACTION PRESS RELEASE
For more information:
P.R.: Mike Brozda Financial: Jim Foltz
(408) 721-3628 (408) 721-5693
[email protected] [email protected]
NATIONAL SEMICONDUCTOR COMPLETES SALE
OF CYRIX PC PROCESSOR BUSINESS TO VIA TECHNOLOGIES
September 3, 1999 - National Semiconductor Corporation (NYSE:NSM)
today announced it has completed the sale of the assets of the Cyrix
standalone PC processor business to VIA Technologies, Inc. As
previously announced, a partial payment of the $167 million sale price
was received at closing, with the remainder contingent on future
revenues of the Cyrix product lines.
The sale includes the M II(tm) x86-compatible processor and successor
products. National Semiconductor will retain the integrated MediaGX(tm)
processor, which forms the core of National's new Geode(tm) family of
solutions for the Information Appliance market.
National Semiconductor provides system-on-a-chip solutions for the
information age. Combining real-world analog and state-of the-art
digital technology, the company's chips lead many sectors of the
personal computer, communications, and consumer markets. With
headquarters in Santa Clara, California, National has annual sales of
$2.0 billion and approximately 11,000 employees worldwide. Additional
company and product information is available on the World Wide Web at
www.national.com.
# # #
National Semiconductor is a registered trademark of National
Semiconductor Corporation. All other brand or product names are
trademarks or registered trademarks of their respective holders.
