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) : June 1, 1999
STANDARD MICROSYSTEMS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 0-7422 11-2234952
--------------- ------------ -------------------
(State of (Commission (IRS Employer
Incorporation) File No.) Identification No.)
80 ARKAY DRIVE, HAUPPAUGE, NEW YORK 11788
- -------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 516-435-6000
Not applicable
-----------------------
(Former name or former address, if changed since last report)
<PAGE>
Item 2. Acquisition or Disposition of Assets.
In March 1999, the Company's Board of Directors approved a plan for the Company
to divest its Foundry Business Unit (FBU) in March 1999. The FBU had been
experiencing significant operating losses during the past several years. This
divestiture was completed on June 1, 1999, with the Company signing an Asset
Purchase Agreement, and related agreements, selling the assets of its Foundry
Business Unit to privately held Inertia Optical Technology Applications, Inc.
(IOTA) of Newark, NJ. The assets of the Foundry Business Unit will be combined
with the operations of IOTA.
Both businesses specialized in MicroElectroMechanical Systems (MEMS), which are
semiconductor-related products with mechanical properties used in such
applications as sensors, ink jet print heads and micro-valves. The combined
businesses will hereafter operate as Standard MEMS, Inc. (SMI), and will
operate out of an existing Standard Microsystems Corporation facility in
Hauppauge, New York, as well as in several IOTA facilities in New Jersey,
California, Massachusetts, Mexico and Germany.
The transaction was effected through IOTA's purchase of the FBU's assets from
SMSC in exchange for common stock of IOTA representing 38% of IOTA's
outstanding capital stock. Standard MEMS, Inc. is accordingly majority owned
by the previous shareholders of IOTA. SMSC has committed to reducing its 38%
interest in SMI to 19% or less within one year.
The consideration for the sale was determined by arms-length bargaining.
Robert M. Brill, a director of SMSC, is Managing Member of Newlight Partners,
LLC and Managing Director of Newlight Partners, Ltd., which companies are
general partners of Newlight Associates, L.P. ("NA") and Newlight Associates,
(BVI), L.P. ("BVI"). In March 1999, NA and BVI acquired approximately 15% of
IOTA's outstanding capital stock, and Mr. Brill was elected a director of IOTA.
SMSC has been advised that NA and BVI plan to invest an additional $1,000,000
in IOTA.
As a result of this transaction, SMSC has reported the operating results, net
assets and cash flows of the Foundry Business Unit as a discontinued operation
in its previously filed form 10-K for the fiscal period ended February 28, 1999.
SMSC recorded a pre-tax charge of $15,200,000 in the fourth quarter ended
February 28, 1999, covering write-downs of certain FBU assets, operating
losses expected to occur before completion of the transaction, and other costs
associated with the transaction.
<PAGE>
Item 7. FINANCIAL STATEMENTS AND EXHIBITS
(b) Pro Forma Financial Information.
Unaudited Pro Forma Consolidated Condensed Statements of Operations for the
twelve month period ended February 28, 1999, and a Pro Forma Consolidated
Balance Sheet as of February 28, 1999 are not presented herin. The
Consolidated Statements of Operations and Consolidated Balance Sheets
included within the Company's previously filed Form 10-K for the fiscal period
ended February 28, 1999 reflect this transaction for all periods presented.
(c) Exhibits. The exhibits identified below are made part of this report.
Exhibit No. Exhibit
- ----------- --------
10.1 Asset Purchase Agreement dated May 27, 1999, between Inertia
Optical Technology Applications, Inc. and Standard
Microsystems Corporation.
10.2 Stockholders Agreement dated June 1, 1999, between Inertia
Optical Technology Applications, Inc. ("IOTA"), Standard
Microsystems Corporation and other stockholders of IOTA.
10.3 Transition Services Agreement dated June 1, 1999, between
Inertia Optical Technology Applications, Inc. and Standard
Microsystems Corporation.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has caused this report to be signed on its behalf by the
undersigned duly authorized.
STANDARD MICROSYSTEMS CORPORATION (Registrant)
Date: June 14, 1999 /S/ Eric M. Nowling,
-------------------------------
(Signature)
Eric M. Nowling
Vice President - Finance and Chief Financial Officer
(Principal Financial and Accounting Officer)
<PAGE>
EXHIBIT INDEX
Exhibit No. Exhibit
- ----------- -------
10.1 Asset Purchase Agreement dated May 27, 1999, between Inertia
Optical Technology Applications, Inc. and Standard
Microsystems Corporation.
10.2 Stockholders Agreement dated June 1, 1999, between Inertia
Optical Technology Applications, Inc. ("IOTA"), and Standard
Microsystems Corporation and other stockholders of IOTA.
10.3 Transition Services Agreement dated June 1, 1999, between
Inertia Optical Technology Applications, Inc. and Standard
Microsystems Corporation.
ASSET PURCHASE AGREEMENT, dated as of May 27, 1999, by and
between INERTIA OPTICAL TECHNOLOGY APPLICATIONS, INC., a Delaware corporation
("IOTA"), and STANDARD MICROSYSTEMS CORPORATION, a Delaware corporation
("SMSC").
The parties agree as follows:
ARTICLE I
DEFINITIONS
When used in this Agreement, the following terms shall have
the respective meanings set forth below:
1.1 "Additional Agreements" shall mean the Shared Technical
Documentation and Trade Secrets Agreement, Mutual Covenant Not To Sue,
Real Property Lease, Stockholders Agreement, the Transition Services Agreement,
and any other agreement or instrument executed by any of the parties in
connection with this Agreement.
1.2 "Affiliate" shall mean with respect to any Person (i) any Person
directly or indirectly controlling, controlled by or under common control with,
such Person; or (ii) any officer, director or partner of such Person. For these
purposes, control means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
Notwithstanding the foregoing, SMSC and IOTA shall not be deemed to be
"Affiliates" of each other for purposes of this Agreement.
1.3 "Agreement" shall mean this Asset Purchase Agreement, including all
exhibits and schedules hereto, as the same may hereafter be amended, modified
or supplemented from time to time.
1.4 "Approval or Permit" shall mean any approval, license, order, permit,
registration, or the like issued by, or consent of or notice to, an Authority.
1.5 "Assumed Obligations" is defined in Section 2.2.
1.6 "Authority" shall mean any governmental, regulatory or administrative
body, agency or authority, any court or judicial authority, any arbitrator, or
any public, private or industry regulatory authority, whether international,
national, Federal, state, or local.
1.7 "Books and Records" shall mean all books and records, ledgers,
customer lists, files, correspondence, and other written, electronic or other
form or record of every kind owned, but excluding minute books and stock
ledgers.
1.8 "CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601, et. seq., as
the same may be amended from time to time.
<PAGE>
1.9 "Closing" is defined in Section 2.5; and "Closing Date" shall mean
the date upon which the Closing occurs.
1.10 "Code" shall mean the Internal Revenue Code of 1986, as the same may
hereafter be amended from time to time. Any reference to a specific section of
the Code shall refer to the cited provision as the same may be subsequently
amended from time to time, as well as to any successor provision(s).
1.11 "Common Stock" shall mean the common stock, par value $.01 per share,
of IOTA.
1.12 "Continuing Warranties" is defined in Section 2.2.2.
1.13 "Continuing Warranties Obligations" is defined in Section 2.2.2.
1.14 "Contracts or Other Agreements" shall mean all contracts, agreements,
indentures, bonds, mortgages, warranties, guaranties, options, leases,
subleases, plans, collective bargaining agreements, licenses, purchase orders,
sales orders, commitments or other binding arrangements of any nature
whatsoever, express or implied, written or unwritten, and all amendments
thereto.
1.15 "Employee Records" shall mean all of SMSC's Books and Records
relating to employees who in connection with the transactions contemplated
hereby, shall become employees of IOTA.
1.16 "Environmental Law or Orders" shall mean collectively, all Laws and
Orders relating to industrial hygiene, occupational safety conditions or
environmental conditions on, under or about property, including, without
limitation, RCRA, CERCLA and all other Laws and Orders relating to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or industrial, hazardous or toxic materials or wastes into the
environment (including ambient air, surface water, ground water, land surface
or sub-surface strata) or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or industrial hazardous or toxic materials
or wastes.
1.17 "Epidemic Failure" is defined in Section 7.3.
1.18 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as heretofore amended and as the same may hereafter be amended from time
to time. Any reference to a specific section of ERISA shall refer to the cited
provision as the same may be amended from time to time, as well as to any
successor provision(s).
1.19 "ERISA Affiliate" shall mean a person or entity which, together with
SMSC or IOTA, as the case may be, is treated as a single employer under Section
414 of the Internal Revenue Code.
1.20 "ERISA Plan" shall mean any employee benefit plan within the meaning
of Section 3(3) of ERISA.
<PAGE>
1.21 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
1.22 [Intentionally Omitted]
1.23 "Excluded Liabilities" shall mean all of SMSC's liabilities and
obligations other than Assumed Obligations, whether direct or indirect, fixed,
contingent or otherwise, known or unknown and whether or not disclosed to IOTA
pursuant to this Agreement or otherwise. Without limiting the generality of the
foregoing, Excluded Liabilities shall include the following:
1.23.1 except as otherwise specifically provided by this Agreement,
all accounts payable, accrued expenses and liabilities for materials and
services, owed by SMSC arising on or prior to or as a result of actions of SMSC
on or prior to the Closing Date;
1.23.2 all liabilities and obligations arising out of product
liability claims and other claims and liabilities for property damage, bodily
injury or other damage whether in respect of any express or implied
representation, warranty or guarantee, strict liability or otherwise,
including without limitation any claim, suit, action or proceeding
alleging that any product was defective, or improperly designed or
manufactured, and any and all other liabilities of SMSC arising on
or before the Closing Date or arising out of occurrences,
circumstances or actions commencing or in existence on or before the Closing
Date or relating to products manufactured or sold by SMSC on or before the
Closing Date; provided, however, that this clause 1.23.2 shall not impair
IOTA's obligation to assume the replace, repair, or refund obligations referred
to in Section 2.2;
1.23.3 all indebtedness of SMSC for borrowed money and all direct or
indirect guarantees of SMSC of indebtedness, liabilities or obligations of
others;
1.23.4 all contractual obligations of SMSC (including without
limitation Labor Agreements) which IOTA does not expressly agree to assume
under this Agreement;
1.23.5 any claims made against IOTA or SMSC alleging damage to the
environment or any liability for environmental cleanup costs, or any
liabilities for damage to the environment or for environmental cleanup costs,
or relating to fines or penalties imposed by governmental authority for
violations of Environmental Laws or Orders, in any case to the extent resulting
from occurrences, circumstances or actions occurring or in existence on or
prior to the Closing Date;
1.23.6 except as otherwise expressly agreed in this Agreement or the
Additional Agreements, all claims, liabilities and obligations relating to or
arising under any employee benefit plan of SMSC, including without limitation
accrued vacation benefits, severance benefits, medical costs reimbursement
plans and the like, all liabilities and obligations relating to the termination
of any employee benefits or employee benefit plan or relating to the
termination of employment of any employee of SMSC (whether or not such employee
is later employed by IOTA) and all liabilities and obligations arising under
state law in connection with payments to terminated employees and judgments
and penalties in respect thereof;
<PAGE>
1.23.7 any claims made by any employee or former employee of SMSC
relating to: employment by SMSC or any termination thereof; the transactions
governed by this Agreement; any incident or event occurring during the term of
employment by SMSC of any employee or former employee whether or not such
employee is later employed by IOTA; or any injury suffered or illness
contracted or any exposure to any substance or condition by any such employee
or former employee while so employed;
1.23.8 any liability or obligation arising out of any other cause of
action or judicial or administrative action, suit, proceeding or investigation
relating to an event occurring or a claim arising on or prior to the Closing
Date;
1.23.9 all liabilities arising from any failure of SMSC to give any
required notice under the Worker Adjustment and Retraining Notification Act of
1988, as amended;
1.23.10 any liability or obligation of SMSC in respect of Taxes;
1.23.11 any claims by or liability or obligation to any shareholder
or former shareholder of SMSC whether arising out of the transactions
contemplated by this Agreement or otherwise;
1.23.12 any liability of SMSC required by this Agreement to be
disclosed to IOTA and not so disclosed or which arises out of a breach of any
representation or warranty made by SMSC under or pursuant to this Agreement;
1.23.13 all liabilities in respect of any FBU Excluded Assets; and
1.23.14 all liabilities of SMSC under this Agreement.
1.24 "FBU" shall mean SMSC's Wafer Fabrication Business Unit, which
generates the Foundry revenues (excluding Integrated Circuit Products)
disclosed in SMSC's reports filed with the SEC pursuant to the Exchange Act.
1.25 "FBU Assets" shall mean all of SMSC's assets primarily used or held
for use by the FBU Business (excluding any FBU Excluded Assets), or held for
sale by the FBU Business, including without limitation the following assets of
SMSC:
1.25.1 accounts receivable generated by the FBU Business;
1.25.2 copies of or extracts from SMSC's Books and Records (other
than FBU Books and Records), insofar as they relate to the FBU Business;
1.25.3 the Contracts or Other Agreements listed on Schedule 1.25.3
(the "FBU Contracts");
1.25.4 FBU Books and Records;
1.25.5 all goodwill of the FBU Business as a going concern;
1.25.6 Inventories used or held for use in or sold or held for sale
by the FBU Business;
<PAGE>
1.25.7 Tangible Personal Property identified on Schedule 4.10.1
(except any such Tangible Personal Property identified on Schedule 1.29);
1.25.8 Intangible Personal Property identified on Schedule 4.10.3
(except any such Intangible Personal Property identified on Schedule 1.29);
1.25.9 all rights under express or implied warranties from suppliers
or contractors insofar as they relate to the FBU Business and;
1.25.10 the claims or choses in action listed on Schedule 1.25.10 or
otherwise relating to or arising out of the FBU Contracts.
1.26 "FBU Books and Records" shall mean all books and records, customer
and vendor lists, marketing and sales information, files, correspondence, and
other records used exclusively in the FBU Business.
1.27 "FBU Business" shall mean the business conducted by the FBU.
1.28 "FBU Employees" is defined in Section 5.4.1.
1.29 "FBU Excluded Assets" shall mean the Marks, Tangible Personal
Property and Intangible Personal Property of SMSC identified on Schedule 1.29.
1.30 "GAAP" shall mean generally accepted accounting principles.
1.31 "Intangible Personal Property" shall mean all intangible properties
in any and all countries of the world (including the right to use), including,
without limitation, all (a) Marks, registered copyrights and mask work rights
and applications for the registration thereof, Patents, Software, and Trade
Secrets; (b) all other inventions, discoveries, improvements, processes,
formulas (secret or otherwise), algorithms, information, know-how and ideas;
and (c) all Technical Documentation.
1.32 "Integrated Circuit Products" shall mean those products identified by
SMSC part number in Schedule 1.32.
1.33 "Inventories" shall mean all inventories, including, without
limitation, inventories of raw materials, work in progress, storehouse stocks,
materials, supplies, parts, purchasing materials, finished goods and consigned
goods, wherever stored or whether in transit.
1.34 "IOTA Shares" is defined in Section 2.4.
1.35 "IOTA Subsidiaries" is defined in Section 3.1.1.
1.36 "IRS" shall mean the United States Internal Revenue Service.
1.37 "Labor Agreement" shall mean, (i) any employment agreement,
collective bargaining agreement or other labor agreements relating to any
employee of IOTA or, as the case may be, of SMSC who in connection with the
transactions contemplated by this Agreement shall become an employee of IOTA;
(ii) any pension, profit sharing, deferred compensation, bonus, stock option,
stock purchase, savings, retainer, consulting, retirement, welfare or incentive
plans, agreements, or arrangements (including ERISA Plans) sponsored by or to
which SMSC or IOTA, as the case may be, is a party; and (iii) any plan,
agreement, or arrangement under which "fringe benefits" (including, but not
limited to, hospitalization plans or programs, medical insurance, vacation
plans or programs, sick plans or programs and related benefits) are afforded to
any employee of SMSC or IOTA, as the case may be.
<PAGE>
1.38 "Law" shall mean any law, statute, regulation, rule, ordinance, or
other binding action or pronouncement of an Authority.
1.39 [Intentionally Omitted]
1.40 "Lien or Other Encumbrance" shall mean any lien, pledge, mortgage,
security interest, charge, conditional sales contract, option, license right,
restriction on transfer or use, or other restriction, reversionary interest,
right of first refusal, claim under bailment or storage contract, easement or
adverse claim, now existing or that hereafter may come into existence upon the
passage of time or the occurrence of any transaction contemplated hereby.
1.41 "Loss" shall mean any damage, award, judgment, payment, diminution in
value or other loss, however suffered or characterized, all interest ordered to
be paid thereon, all costs and expenses paid to any third party incurred in
investigating or defending any claim, lawsuit, or arbitration, or therefrom,
and all actual, reasonable attorneys' fees incurred in connection therewith.
1.42 "Mark" shall mean any registered or unregistered trademark, service
mark, trade name, logo, or slogan, any application for registration thereof,
and any associated goodwill.
1.43 "Material Adverse Effect" shall mean, with respect to any Person, any
change(s), effect(s), circumstance(s) or condition(s) that, individually or in
the aggregate, are or may reasonably be expected to be materially adverse to
(i) the assets, business, operations, income, prospects or condition (financial
or otherwise) of such Person or the transactions contemplated by this
Agreement, (ii) the assets, business, operations, income, prospects or
condition (financial or otherwise) of IOTA from and after the Closing, or (iii)
the ability of such Person to perform its obligations under this Agreement.
1.44 "MEMS Device" shall mean microelectronical systems device as such
term is customarily understood in the trade as of the Closing Date; provided,
that RC (Resistor-Capacitor) networks and RCD (Resistor-Capacitor-Diode)
networks, which are currently a part of the FBU Business, are not
"MEMS Devices".
1.45 "Order" shall mean any decree, order, judgment, writ, award,
injunction, rule or consent of or by an Authority.
1.46 "Patent" shall mean any issued or registered patent, in any or all
countries of the world, including, without limitation, all reissues, divisions,
continuations, continuations in part, utility models and design patents, all
patent applications, and all associated inventions, industrial models,
processes, designs, technical information, shop rights, know-how, Trade
Secrets, processes, operating, maintenance and other manuals, drawings and
specifications, process flow diagrams and related data.
<PAGE>
1.47 "Person" shall mean any entity, corporation, company, association,
joint venture, joint stock company, partnership, trust, organization,
individual (including personal representatives, executors and heirs of a
deceased individual), nation, state, government (including any agency,
department, bureau, board, division or instrumentality thereof), trustee,
receiver or liquidator or any all subsidiary thereof.
1.48 "RCRA" shall mean the Resource Conservation and Recovery Act of 1976,
42 U.S.C. Section 6901, et. seq. as the same may be amended from time to time.
1.49 "Real Property Lease" shall mean the lease in the form of
Exhibit 1.49.
1.50 "SEC" shall mean the United States Securities and Exchange
Commission.
1.51 "Shared Technical Documentation and Trade Secrets" shall mean the
technical documentation and trade secrets subject to the Shared Technical
Documentation and Trade Secrets Agreement.
1.52 "Shared Technical Documentation and Trade Secrets Agreement" shall
mean the agreement in the form of Exhibit 1.52.
1.53 "Software" shall mean all partial or whole "software" and "firmware"
and documentation thereof (including, without limitation, all electronic data
processing systems and program specifications, test programs, source codes,
object codes, routines, microcodes, input data and report layouts and formats,
record file layouts, outlines, documentation, diagrams, specifications and
narrative descriptions and flow charts).
1.54 "Stockholders Agreement" shall mean the agreement in the form of
Exhibit 1.54.
1.55 "Tangible Personal Property" shall mean all machinery, equipment,
furniture, supplies, spare parts, computers, hardware, tools, stores and other
tangible personal property (excluding fixtures), other than the Inventories and
the Books and Records.
1.56 "Tax Returns" shall mean, collectively all Federal, state, foreign,
and local tax reports, returns, information returns and other related documents
required by any relevant taxing Authority to be filed with such Authority.
1.57 "Taxes" shall mean, collectively, all taxes, including without
limitation, income, gross receipts, net proceeds, alternative, add-on, minimum,
ad valorem, value added, turnover, sales, use, property, personal property
(tangible and intangible), stamp, leasing, excise, duty, franchise, transfer,
license, withholding, payroll, employment, fuel, excess profits, environmental,
occupational, interest equalization, windfall profits and severance taxes, and
all other like governmental charges, including without limitation any interest
or penalties with respect thereto.
<PAGE>
1.58 "Technical Documentation" shall mean all technical information,
specifications, or other documentation, including, without limitation, all
partial or whole designs, schematics, board layouts, bills of material, chip
tooling, pattern generation tapes, test tapes, logic diagrams, circuit
diagrams, block diagrams, partial or whole mask, board, chip or cell designs,
cell library databases, outlines, packaging information, reliability data,
descriptions, or other information used, held for use, or being developed in
IOTA's business or the FBU Business, as the case may be, or documentation,
writings, drawings, papers, records, books, tapes, disks, or other tangible
media embodying any of the Intangible Personal Property included in the FBU
Assets or the Shared Technical Documentation and Trade Secrets.
1.59 "Third Party Consent" is defined in Section 3.3.
1.60 "Trade Secrets" shall include without limitation any information,
including a formula, pattern, compilation, program, device, method, technique,
or process, that derives independent economic value, actual or potential, from
not being generally known to the public or to other persons who can obtain
economic value from its disclosure or use and is the subject of efforts that
are reasonable under the circumstances to maintain its secrecy. Without
limiting the foregoing definition in any way, Trade Secrets include inventions,
technical and business information, such as information set out in or relating
to computer programs, engineering or technical data, drawings, designs,
manufacturing techniques, research and development plans and practices, cost
data, pricing practices and policies, marketing practices and policies,
licensing practices and policies, and the identity and location of past,
present, or prospective suppliers, licensors, licensees, customers, or
employees and their skills.
1.61 "Welfare Plan" shall mean any employee welfare benefit plan within
the meaning of Section 3(1) of ERISA.
1.62 "Transition Services Agreement" shall mean the agreement in the
form of Exhibit 1.62.
ARTICLE II
PURCHASE AND SALE OF ASSETS; THE CLOSING
2.1 ASSETS TO BE TRANSFERRED. Upon the terms and subject to the
conditions of this Agreement, at the Closing, SMSC agrees to sell, assign,
convey, transfer and deliver to IOTA, and IOTA agrees to purchase, acquire and
accept from SMSC, all of the FBU Assets, with such changes thereto as may occur
in the ordinary course of business, consistent with the terms and conditions
of this Agreement, from the date hereof to the Closing. The sale and purchase
of the FBU Assets shall be effected by a bill of sale and such other
agreements, assignments, and instruments of transfer as shall be reasonably
acceptable to the parties and their respective counsel.
2.2 ASSUMED LIABILITIES AND OBLIGATIONS. At the Closing, IOTA shall
assume and shall thereafter pay, discharge and perform in the ordinary course
only each of the following (the "Assumed Obligations"):
2.2.1 the obligations of SMSC to accept and pay for goods or
services identified on Schedule 2.2.1A or to deliver goods or services
identified on Schedule 2.2.1B and outstanding in accordance with its terms on
the Closing Date, or incurred after the date hereof in the ordinary course of
the FBU Business (in quantities, at prices, and on other terms materially the
same as heretofore), and outstanding in accordance with its terms on the
Closing Date;
<PAGE>
2.2.2 subject to clause (b) of Section 7.3, all of SMSC's replace,
repair, or refund obligations under any of the express warranties disclosed on
Schedule 4.14, and all of SMSC's replace or repair obligations (but not refund
obligations) under any implied warranties, applicable to products sold by the
FBU, outstanding at or arising after the Closing Date (the "Continuing
Warranties", and together with all costs and expenses incurred in connection
with such Continuing Warranties, the "Continuing Warranties Obligations"); and
2.2.3 the obligations of SMSC performance of which shall become due
after the Closing Date under each FBU Contract.
2.3 NO OTHER LIABILITIES OR OBLIGATIONS ASSUMED. IOTA shall not assume
or become liable for any of the Excluded Liabilities, and SMSC shall and does
hereby retain responsibility for, and shall promptly pay, discharge, perform in
the ordinary course or otherwise satisfy the Excluded Liabilities.
2.4 ISSUANCE OF COMMON STOCK. In consideration for the sale and delivery
of the FBU Assets, and subject to the terms and conditions of this Agreement,
at the Closing IOTA shall issue to SMSC a certificate, registered in SMSC's
name, for 3,011,367 shares of fully paid and nonassessable shares of Common
Stock (the "IOTA Shares"), which shall equal 38% of the sum of the number of
shares of IOTA capital stock that will be outstanding immediately after
issuance of the IOTA Shares plus (but without duplication) the number of shares
of IOTA capital stock issuable upon exercise or conversion of rights to
purchase or convert securities convertible into IOTA capital stock (other than
employee stock options) outstanding immediately following issuance of the IOTA
Shares, which IOTA Shares shall be free and clear of all Liens or Other
Encumbrances (other than those created by this Agreement or the Additional
Agreements). Such certificate shall bear such legends as are referenced in the
Stockholders Agreement.
2.5 CLOSING. The closing (the "Closing") shall occur at 10:00 a.m. on
June 1, 1999, at the offices of Morrison & Foerster LLP, 1290 Avenue of the
Americas, New York, New York 10104, except as otherwise agreed by IOTA and
SMSC.
2.6 IOTA DELIVERIES AT CLOSING.
2.6.1 At the Closing, IOTA shall deliver to SMSC the following:
(a) complete and accurate copies of IOTA's bylaws and of
resolutions duly adopted by IOTA's Board of Directors and Stockholders in full
force and effect as of the Closing, authorizing IOTA to execute, deliver, and
perform this Agreement and the Additional Agreements, certified as such by an
appropriate officer of IOTA, together with a long-form good standing
certificate dated within seven days of the Closing Date and copy of IOTA's
certificate of incorporation certified by the secretary of state of IOTA's
state of incorporation;
(b) the certificates and other documents referred to in
Article VI and all other documents, instruments, writings and certificates
reasonably requested by SMSC to be delivered by IOTA at the Closing, to the
extent not theretofore delivered.
(c) certificates representing the IOTA Shares to be issued
to SMSC;
<PAGE>
(d) instruments assuming performance of the Assumed
Obligations, in form and substance reasonably satisfactory to SMSC;
(e) the opinion of Morrison & Foerster LLP, counsel to
IOTA, in substantially the form of Exhibit 2.6.1(e); and
(f) such other documents and instruments as are reasonably
requested by SMSC to be delivered by IOTA at the Closing.
2.7 SMSC DELIVERIES AT CLOSING.
2.7.1 At the Closing, SMSC shall deliver to IOTA the following:
(a) duly executed assignments of the Contracts or Other
Agreements listed on Schedule 1.25.3 and all related Third Party Consents
listed on Schedule 6.1.2, in form and substance reasonably satisfactory to
IOTA.
(b) a duly executed bill of sale with respect to the FBU
Assets substantially in the form of Exhibit 2.7.1(b);
(c) duly executed assignments of the Intangible Personal
Property included in the FBU Assets;
(d) complete and accurate copies of SMSC's bylaws and of
resolutions duly adopted by SMSC's Board of Directors in full force and effect
as of the Closing, authorizing SMSC to execute, deliver, and perform this
Agreement and the Additional Agreements, certified as such by an appropriate
officer of SMSC, together with a long-form good standing certificate dated
within seven days of the Closing Date and copy of SMSC's certificate of
incorporation certified by the secretary of state of SMSC's state of
incorporation;
(e) the certificates and other documents referred to in
Article VI and all other documents, instruments, writings and certificates
reasonably requested by IOTA to be delivered by SMSC, to the extent not
theretofore delivered;
(f) the Employee Records;
(g) the opinion of Loeb & Loeb LLP, counsel to SMSC, in
substantially the form of Exhibit 2.7.1(g); and
(h) such other documents and instruments as are reasonably
requested by IOTA to be delivered by SMSC at the Closing.
<PAGE>
2.8 ADDITIONAL AGREEMENTS TO BE EXECUTED AT CLOSING.
At the Closing, SMSC and IOTA shall execute the Shared
Technical Documentation and Trade Secrets Agreement, the Mutual Covenant Not To
Sue, the Real Property Lease, and the Transition Services Agreement, and the
Stockholders Agreement.
2.9 PAYMENT OF TAXES.
SMSC and IOTA shall share on the basis of a 38:62 ratio any
liability for the payment of all transfer taxes, sales taxes and other similar
Taxes or charges imposed by any governmental entity in connection with the sale
and transfer of the FBU Assets to IOTA. Each of IOTA and SMSC shall prepare and
file, and shall fully cooperate with the other party with respect to such
preparation and filing of, any returns and other filings relating to any such
Taxes, fees, charges, or transfers, as may be required, and to the extent that
either party is required by Law or Authority to pay a greater portion of any
such Taxes or charges, the other party shall promptly pay over to such party
such amounts as may be required in order to maintain the forgoing 38:62
(SMSC:IOTA) ratio.
2.10 VALUATION AND ALLOCATION OF PURCHASE PRICE.
The parties agree that the purchase price of the FBU Assets
is to be valued and allocated among the FBU Assets as set forth on Exhibit
2.10. The parties agree to be bound for all purposes by such allocation and to
execute and file IRS Forms 8594 consistent therewith; provided, however, that
the parties may by mutual agreement amend or modify such valuation and/or
allocation prior to the filing by the parties' of IRS Forms 8594 or other
applicable Tax Returns.
2.11 NON-ASSIGNABLE INSTRUMENTS.
Nothing in this Agreement shall be construed as an attempt or
agreement to assign (i) any contract, agreement, license, lease, sales order,
purchase order or other commitment which is nonassignable without the consent
of the other party or parties thereto unless such consent shall have been given
or (ii) any Contract or Other Agreements or claim as to which all the remedies
for the enforcement thereof enjoyed by SMSC would not pass to IOTA as an
incident of the assignments provided for by this Agreement. In order, however,
that the full value of every Contract and Other Agreement and claim of the
character described in clauses (i) and (ii) above that are included in the FBU
Assets, and all claims and demands on such Contracts an Other Agreements, may
be realized, SMSC shall, by itself or by its agents, at the request and under
the direction of IOTA, in the name of SMSC or otherwise as IOTA shall specify
and as shall be permitted by law, take all such action and do or cause to be
done all such things as shall in the opinion of IOTA be necessary or proper (x)
in order that the rights and obligations of SMSC under such Contracts and Other
Agreements shall be preserved and (y) for, and to facilitate, the collection of
the monies due and payable, and to become due and payable, to SMSC in and under
every such Contract or Other Agreement and claim and in respect of every such
claim and demand, and SMSC shall hold the same for the benefit of and shall pay
the same over promptly to IOTA.
<PAGE>
2.12 INTERDEPENDENCE.
The transfers and deliveries described in this Article II to
take place at the Closing are mutually interdependent and regarded as occurring
simultaneously as of the close of business on the Closing Date; and, unless
waived by both the transferor and transferee, no such transfer or delivery
shall become effective unless and until all other transfers and deliveries
provided for in this Article II have also been consummated.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF IOTA
IOTA hereby represents and warrants to SMSC as follows, and
acknowledges and confirms that SMSC is relying upon such representations and
warranties notwithstanding any investigation made by SMSC or on its behalf:
3.1 ORGANIZATION; CAPITALIZATION; AUTHORITY; DUE AUTHORIZATION.
3.1.1 ORGANIZATION AND GOOD STANDING. IOTA is a corporation duly
organized, validly existing and in good standing under the Laws of Delaware.
IOTA is duly qualified or licensed to do business as a foreign corporation and
in good standing in each jurisdiction in which the nature of its business or
the location of its assets requires such qualification or licensing, except
where the failure to so qualify or be licensed would not have a Material
Adverse Effect. IOTA has no investment in any person other than the
corporations listed on Schedule 3.1.1 (the "IOTA Subsidiaries"). Except as set
forth on Schedule 3.1.1, no Person other than IOTA owns any capital stock of
any IOTA Subsidiary or has any right to acquire any such capital stock. Each
IOTA Subsidiary is a corporation or other entity, duly organized, validly
existing and in good standing under the Laws of its jurisdiction of
incorporation set forth on Schedule 3.1.1 and is duly qualified or licensed to
do business as a foreign corporation and in good standing in each jurisdiction
in which the nature of its business or the location of its assets requires such
qualification or licensing, except where the failure to so qualify or be
licensed would not have a Material Adverse Effect.
3.1.2 CAPITALIZATION. The authorized capital stock of IOTA consists
of 9,250,000 shares of Common Stock and 750,000 shares of Class A Common Stock,
par value $.01 per share ("Class A Stock"). Effective immediately following the
Closing, the IOTA Shares shall constitute 38% of the sum of the number of
shares of IOTA's issued and outstanding capital stock (including as issued the
shares of Common Stock issued pursuant to the transactions contemplated by
Section 6.2.4(a) and the 66,667 shares of Common Stock issued or issuable to
Tritech Partners, L.P.) plus (but without duplication) the number of shares of
IOTA's capital stock issuable upon exercise or conversion of rights to purchase
or convert securities convertible into IOTA capital stock (other than employee
stock options) outstanding immediately following the Closing (which sum shall
be equal to 8,393,324). Except as disclosed on Schedule 3.1.2, the consummation
of the transactions contemplated by this Agreement will not result in
acceleration or other changes in the vesting provisions or other terms of any
outstanding options or rights granted by IOTA. Each share of Class A Common
Stock is convertible into one share of Common Stock; nothing has occurred, and
IOTA is not committed to do anything, that would require any change in such
conversion ratio; and none of the execution, delivery, or performance of this
Agreement, any Additional Agreements, or consummation of any of the
transactions contemplated hereby or thereby would require any change in such
conversion ratio. Except as contemplated hereby or as disclosed on Schedule
3.1.2, there is no Contract or Other Agreement to which IOTA is a party
obligating IOTA to issue or any IOTA stockholder to sell any capital stock or
other security of IOTA.
<PAGE>
3.1.3 AUTHORITY TO EXECUTE AND PERFORM AGREEMENTS. IOTA has all
requisite corporate power and authority required to enter into, execute and
deliver this Agreement and all of the Additional Agreements and to perform
fully IOTA's obligations hereunder and thereunder.
3.1.4 DUE AUTHORIZATION; ENFORCEABILITY. IOTA has taken all action
necessary to authorize it to enter into and perform fully its obligations under
this Agreement and all of the Additional Agreements and to consummate the
transactions contemplated herein and therein. This Agreement and any Additional
Agreement to which IOTA is a party are, and, as of the Closing Date, together
with any other Additional Agreement or agreement to which any IOTA will be a
party, will be, the legal, valid, and binding agreements of IOTA, enforceable
in accordance with their respective terms, except as such may be subject to the
effect of bankruptcy, insolvency, reorganization, moratorium or similar laws or
equitable principles relating to or limiting creditors' rights generally
(including, without limitation, laws pertaining to preferential and fraudulent
transfers), and that equitable remedies are subject to the discretion of the
court.
3.1.5 SPECIFIC BOARD ACTION. Without limiting any other
representation or warranty hereunder, the Board of Directors, and to the extent
required, the stockholders, of IOTA have adopted resolutions approving and
authorizing the execution and delivery of this Agreement and the other
Additional Agreements to which it is or will be a party and the performance by
IOTA of all its obligations hereunder and under the other Additional
Agreements.
3.2 NO VIOLATION. Except as disclosed in Schedule 3.3, neither the
execution or delivery by IOTA of this Agreement or any of the Additional
Agreements nor the consummation of the transactions contemplated herein or
therein will (i) violate any provision of the Certificate of Incorporation,
bylaws or other charter document of IOTA or any IOTA Subsidiary, (ii) violate,
conflict with, or constitute a default under, permit the termination of,
or cause the loss of any right or option under, any Contract or Other
Agreement to which IOTA or any IOTA Subsidiary is a party, (iii) require
any Approval or Permit or consent of or notice to any party to any
Contract or Other Agreement listed on Schedule 3.11, (iv) result in
the creation or imposition of any Lien or Other Encumbrance upon IOTA's
business or any of the Assets, or (v) violate or require any consent
or notice under any Law or Order to which IOTA, any IOTA
Subsidiary, any of IOTA's or any IOTA Subsidiary's assets is subject.
3.3 REGULATORY APPROVALS AND OTHER CONSENTS. Schedule 3.3 sets forth a
complete and accurate description of each consent of or notice to any third
party to any Contract or Other Agreement ("Third Party Consent") or Approval
or Permit under any Law or Order that must be obtained, given, or otherwise
satisfied by IOTA or any IOTA Subsidiary in order that (i) the execution or
delivery by IOTA of this Agreement or any of the Additional Agreements and
(ii) the consummation of the transactions contemplated herein or therein,
will not cause any breach of the representations and warranties contained
in Section 3.2.
<PAGE>
3.4 FINANCIAL INFORMATION. Schedule 3.4 sets forth: (i) the unaudited
balance sheets of IOTA (formerly known as "Sensor Development Inc.") as of
December 31, 1996, 1997 and 1998, and the related income statements for the
years then ended; (ii) the unaudited balance sheets of Mutec GmbH, a subsidiary
of IOTA ("Mutec") as of December 31, 1997 and 1998; and (iii) the unaudited
consolidated balance sheet of IOTA and its subsidiaries as of March 31, 1999
and the related statements of income and cash flows for the three months then
ended. Except as described on Schedule 3.4, said financial statements were
prepared from and in accordance with the Books and Records of IOTA or Mutec, as
the case may be, and to the best knowledge of IOTA, (a) were prepared in
accordance with GAAP (or in the case of Mutec, the corresponding German
accounting principles) and (b) fairly present IOTA's and Mutec's respective
financial condition and results of its operations as of the relevant dates
thereof and for the periods covered thereby. The foregoing are collectively
referred to herein as the "IOTA Financial Statements".
3.5 INVENTORIES. Except as described on Schedule 3.5, to the best
knowledge of IOTA, IOTA's Inventories and the Inventories of each of the IOTA
Subsidiaries are properly recorded on the IOTA Financial Statements in
accordance with GAAP (or in the case of Mutec's Inventories, in accordance
with German accounting principles) and, subject to the reserves reflected in
the IOTA Financial Statements, consist only of material in merchantable
condition and useable and saleable, at customary gross margins and with
customary markdowns, in the ordinary course of business consistent with past
practice. Except as set forth in Schedule 3.5, all such Inventories are free
of defects and owned by IOTA or the indicated IOTA Subsidiary free and clear
of any Liens or Other Encumbrances.
3.6 ACCOUNTS RECEIVABLE. Except as described on Schedule 3.6, to the
best knowledge of IOTA, all of IOTA's accounts receivable and the accounts
receivable of each of the IOTA Subsidiaries represent bona fide sales of
inventory or services in the ordinary course of business. A list of all of
IOTA's accounts receivable and the accounts receivable of each IOTA Subsidiary,
complete and accurate as of its date, which is a date within five days of the
date hereof, has heretofore been provided to SMSC.
3.7 MATERIAL ADVERSE CHANGES. Since March 31, 1999, IOTA and each IOTA
Subsidiary has conducted its business only in the ordinary course and
consistent with prior practices, and has not made or instituted, with respect
to such business, any unusual or novel method of manufacture, purchase, sale,
lease, management, accounting, or operation or that varies materially from
those in use as of such date, and since such date nothing has occurred
respecting the business of IOTA or any IOTA Subsidiary or any of their
respective assets that is reasonably likely to have a Material Adverse Effect.
<PAGE>
3.8 TAXES; COMPLIANCE WITH LAWS; GOVERNMENTAL MATTERS.
3.8.1 Except as would not have a Material Adverse Effect, within the
times and in the manner prescribed by Law, IOTA and each IOTA Subsidiary has
filed all Tax Returns that it is required to file, has paid or provided for all
Taxes shown thereon to be due and owing by it, and has paid or provided for all
deficiencies or other assessments of Taxes, interest or penalties owed by it,
and no taxing Authority has asserted any claim for the assessment of any
additional Taxes of any nature with respect to any periods covered by any such
Tax Returns.
3.8.2 Except as would not have a Material Adverse Effect, IOTA and
each IOTA Subsidiary has complied with, and is now in compliance with, all Laws
or Orders applicable to its business, including any Environmental Laws or
Orders. Schedule 3.8.2 sets forth each Approval or Permit material to the
conduct of business by IOTA or any IOTA Subsidiary, together with its date of
expiration and a brief description of its material terms. The Approval or
Permits already held by IOTA and the IOTA Subsidiaries as disclosed in Schedule
3.8.2, are the only Approvals or Permits material to or necessary for the
conduct of their respective businesses.
3.8.3 Without limiting the generality of the foregoing or any other
representation or warranty contained in this Agreement, and except as disclosed
on Schedule 3.8.3:
(a) IOTA has obtained all permits, licenses and other
authorizations which are required to be held or obtained by IOTA under all
Environmental Laws and Orders, and IOTA is in full compliance with all terms
and conditions of the required permits, licenses, and authorizations, and is
also in full compliance with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in the Environmental Laws and Orders;
(b) there is no pending or, to the best knowledge of IOTA,
threatened civil or criminal litigation, notice of violation, investigation or
administrative proceeding relating in any way to any Environmental Laws or
Orders (including notices, demand letters, or claims under RCRA, CERCLA or
similar state or local laws) involving or relating to IOTA, nor does IOTA have
any indication or reason to believe that any thereof is threatened or imminent.
There have not been and there are not any events, conditions, circumstances,
activities, practices, incidents, actions, or plans which may interfere with or
prevent continued compliance, or which may give rise to any common law or legal
liability, or otherwise form the basis of any claim, action, suit, proceeding,
hearing, study, or investigation, based on or related to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling, or the emission, discharge, release, or threatened release into the
environment, of any pollutant, contaminant, chemical, industrial, hazardous, or
toxic material or waste, including, without limitation, any liability arising,
or any claim, action, demand, suit, proceeding, hearing, study, or
investigation which may be brought, under RCRA, CERCLA, or similar state or
local laws.
(c) None of IOTA's owned or leased properties is listed or
proposed for listing on the National Priorities List pursuant to CERCLA or on
the Comprehensive Environmental Response Compensation Liability Information
System or any similar state list of sites.
<PAGE>
(d) IOTA has not:
(i) reported a discharge or release pursuant to any
Environmental Law or Order;
(ii) filed a notice pursuant to Section 103(c) of
CERCLA;
(iii) filed a notice pursuant to Section 3010 of RCRA,
indicating the generation of any hazardous waste,
as that term is defined under CFR Part 261 or any
state equivalent; or
(iv) filed any notice under any applicable
Environmental Law or Order reporting any violation
of any applicable Environmental Law or Order.
(e) There is not now, nor to IOTA's knowledge has there
ever been, on or in any of IOTA's owned or leased properties:
(i) any treatment, recycling, storage or disposal of
any hazardous waste, as that term is defined under
40 CFR Part 261 or any state equivalent, that
requires or required an Approval or Permit
pursuant to Section 3005 of RCRA; or
(ii) any underground storage tank or surface
impoundment or landfill or waste pile.
(f) There is not now on or in any owned or leased
properties used by or in connection with the FBU Business any polycholorinated
biphenyls (PCBs) used in pigments, hydraulic oils, electrical transformers or
other equipment.
(g) Any asbestos-containing material which is on or part of
any of IOTA's owned or leased properties is in good repair according to the
current standards and practices governing such material, and its presence or
condition does not violate any currently applicable Environmental Law.
3.9 LITIGATION. Schedule 3.9 sets forth an accurate and complete
description of every pending or, to IOTA's knowledge, threatened adverse claim,
dispute, governmental investigation, suit, action (including, without
limitation, nonjudicial real or personal property foreclosure action),
arbitration, legal, administrative or other proceeding of any nature, domestic
or foreign, criminal or civil, at law or in equity, by or against or otherwise
relating to or affecting the business of IOTA or any IOTA Subsidiary or any of
their respective assets. Except as disclosed in Schedule 3.9, no Order is in
effect enjoining or requiring IOTA or any IOTA Subsidiary to take or refrain
from taking any action of any kind with respect to business of IOTA or any IOTA
Subsidiary or any of their respective assets. (i) Each of IOTA, Donald Weiss
and Nicholas Ortyl has complied in all respects with that certain Settlement
Agreement, General Release and Covenant not to Sue dated November 17, 1998 by
and between Dresser Industries, Inc. ("Dresser"), Nicholas Ortyl, Donald Weiss
and IOTA (the "Dresser" Settlement"); (ii) Nicholas Ortyl has complied in all
respects with that certain Stipulated Permanent Injunction entered on November
16, 1998 in Dresser Industries, Inc. v. Nicholas Ortyl, Civil Action No.
398CV2039 (CFD) (the "Injunction"); and (iii) IOTA's consummation of the
transactions contemplated by that certain Product Line Purchase Agreement dated
as of December 1, 1998 between Bourns, Inc. and IOTA (the "Bourns Agreement")
and IOTA's operation of the business relating to the assets purchased pursuant
to the Bourns Agreement do not and will not contravene the terms and conditions
of the Settlement Agreement or the Injunction.
<PAGE>
3.10 ASSETS.
3.10.1 TANGIBLE PERSONAL PROPERTY. Except as disclosed in
Schedule 3.10.1, as of the date hereof:
(a) IOTA and each IOTA Subsidiary has good and marketable title to
its respective material Tangible Personal Property, free and clear of all Liens
or Other Encumbrances, except for liens, if any, for personal property taxes
not due and liens of repairpersons or bailees or other similar liens incurred
in the ordinary course of business in respect of obligations that are not
overdue; and
(b) the Tangible Personal Property of IOTA and each IOTA Subsidiary
is, in all material respects, in good operating condition and repair (ordinary
wear and tear excepted), useable in the ordinary course of business.
3.10.2 INTANGIBLE PERSONAL PROPERTY. Schedule 3.10.2 sets forth, to
the best of IOTA's knowledge, as of the date hereof: (a) a true and complete
schedule of each (i) Mark, (ii) Patent, (iii) item of Software (other than
off-the-shelf software), or (iv) registered copyright or mask work right, and
each registration and application therefor, in each case used by IOTA or any
IOTA Subsidiary in and material to IOTA's business; and (b) a true and complete
schedule of each Contract or Other Agreement to which IOTA or any IOTA
Subsidiary is a party relating to any item of Intangible Personal Property.
Schedule 3.10.2 specifies which of such Contracts or Other Agreements requires
IOTA or any IOTA Subsidiary to pay or entitles it to receive any royalty,
license fee, or other compensation and the amount thereof or the basis for
computing same. Schedule 3.10.2 also identifies each item of such Intangible
Personal Property development of which was directly funded by a third Person
(including any IOTA or IOTA Subsidiary officer, director, employee, or
stockholder) or was conducted by or as a joint venture, in partnership, or
otherwise in collaboration, with any other Person (except an employee solely in
his or her capacity as such) and any Contract or Other Agreement pursuant to
which same occurred.
3.10.3 Except as indicated in Schedule 3.10.3, as of the date hereof:
(a) subject to the knowledge qualifications in clauses (d)(ii) and
(iii), immediately below, IOTA or the indicated IOTA Subsidiary is the owner of
all right, title and interest in and to each item of the Intangible Personal
Property identified on Schedule 3.10.2 free and clear of all Liens or Other
Encumbrances;
(b) all Marks, Patents, copyrights, mask work rights and all other
Intangible Personal Property identified on Schedule 3.10.2 and all state,
Federal, and foreign registrations listed in Schedule 3.10.2 are, to the best
of IOTA's knowledge, valid and in full force and effect, and all applications
therefor listed in Schedule 3.10.2 have been properly filed and are in proper
form;
(c) there are no existing Orders and no pending claims, actions,
judicial or other adversary proceedings or disputes involving IOTA or any IOTA
Subsidiary concerning any item of the Intangible Personal Property identified
on Schedule 3.10.2, and, to IOTA's knowledge, no such action, proceeding,
dispute or disagreement is threatened;
<PAGE>
(d) (i) IOTA and each IOTA Subsidiary has, and none of IOTA or any
IOTA subsidiary has done or omitted to do anything that, upon consummation of
the transactions contemplated hereby, would prevent IOTA from having, the full,
exclusive, and irrevocable right and authority in perpetuity to use each item
of the Intangible Personal Property identified on Schedule 3.10.2 as IOTA or
any IOTA Subsidiary has used it previously in its business; (ii) to IOTA's
knowledge, such use did not ever, does not, and will not conflict with,
infringe upon, or violate any Patent, copyright, mask work right, Mark, Trade
Secret or other proprietary right of any other Person, and no Person has made
any assertion contrary to or inconsistent with the foregoing; and, (iii) to
IOTA's knowledge, no Person has infringed upon or violated any Intangible
Personal Property identified on Schedule 3.10.2 or threatened to do so; and
(e) to IOTA's knowledge all Trade Secrets of IOTA and the IOTA
Subsidiaries are presently protectible, are not part of the public knowledge or
literature, and have not been used, divulged or appropriated for the benefit
of any Person other than IOTA or to the detriment of IOTA.
(f) (i) each of the employees of IOTA listed on Schedule 3.10.3(f)
has executed an employment agreement with IOTA containing provisions relating
to confidentiality and nondisclosure; (ii) each such agreement has vested
fully, exclusively, and irrevocably in IOTA all Intangible Personal Property
identified on Schedule 3.10.2 developed, in whole or in part, or alone or
together with others, by each IOTA employee during the course of his or her
employment with IOTA and is otherwise enforceable by IOTA in accordance with
its terms; and (iii) to IOTA's knowledge, no such employee has breached or
threatened to breach any term thereof.
3.10.4 USE RESTRICTIONS. Except as disclosed in Schedule 3.10.4, none
of IOTA's or any IOTA Subsidiary's Tangible Personal Property or Intangible
Personal Property is subject to (a) any material contractual restriction on the
manner in, purpose for, or location at, which same may be used, or (b) other
restriction on any use of same that would result from the consummation of the
transactions contemplated hereby.
3.11 AGREEMENTS. Schedule 3.11 sets forth a true and complete list of each
Contract or Other Agreement now in effect material to IOTA's business, except
(i) any Contract or Other Agreement specifically identified in Schedules
3.10.1, 3.10.2, or 3.12.1, or that would be required to be disclosed therein
but for specific exclusions contained in any of such Sections of this
Agreement; (ii) purchase orders to IOTA or IOTA Subsidiaries vendors or
customer orders for IOTA or IOTA Subsidiaries products made in the ordinary
course of business; and (iii) any other Contract or Other Agreement made in the
ordinary course of business not involving aggregate payments, costs, or
potential liabilities in excess of $10,000.
3.11.1 Except as disclosed in Schedules 3.11, 3.10.1, 3.10.2,
or 3.12.1:
(a) each Contract or Other Agreement material to IOTA's business is
the valid, legal and binding obligation of IOTA or an IOTA Subsidiary and, to
IOTA's knowledge, of the other parties thereto, enforceable in all material
respects in accordance with its terms against such other party and is in full
force and effect, except as such may be subject to the effect of bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable principles
relating to or limiting creditors' rights generally (including, without
limitation, laws pertaining to preferential and fraudulent transfers), and
that equitable remedies are subject to the discretion of the court;
<PAGE>
(b) to IOTA's knowledge, no other party to any Contract or Other
Agreement material to IOTA's business is now in material breach thereof or has
breached the same in any material respect prior to the date hereof; IOTA has no
knowledge of any anticipated material breach thereof by any such party; and
there is not currently unresolved any disagreement or dispute arising under any
Contract or Other Agreement the failure to resolve or resolution of which may
have a Material Adverse Effect;
(c) neither IOTA nor any IOTA Subsidiary is under any material
liability or obligation with respect to the return of Inventory or products
sold by it that are in the possession of distributors, wholesalers, retailers,
or customers; and
(d) neither IOTA nor any IOTA Subsidiary is a party to, or bound by,
any Contract or Other Agreement or any provision of its Certificate of
Incorporation or bylaws that restricts the conduct of its business or the
business to be conducted by IOTA from and after the Closing anywhere in the
world.
(e) IOTA is not party to or bound by any Contract or Other Agreement
with any of IOTA's current or former shareholders, officers, directors,
employees or agents, or any of their respective Affiliates, or any of IOTA's
current or former consultants, salesmen, sales representatives or agents or
distributors;
(f) IOTA is not party to any registration rights agreement or any
agreement with respect to the voting of shares of IOTA's capital stock.
(g) IOTA is not party to or bound by any Contract or Other Agreement
providing for the payment of any bonus or commission based on sales or earnings
or return on net assets or other measure of performance of IOTA; and
(h) IOTA is not party to or bound by any Contract or Other Agreement
that is in the nature of a partnership or joint venture agreement.
3.12 LABOR AND EMPLOYMENT MATTERS.
3.12.1 LABOR AGREEMENTS. Schedule 3.12.1 sets forth a true and
current list of all Labor Agreements now in effect with respect to any employee
of IOTA or any IOTA Subsidiary. IOTA has previously delivered to SMSC true and
correct information concerning the employees of IOTA and each IOTA Subsidiary,
including with respect to the (i) name; (ii) position; (iii) compensation; and
(iv) location of employment.
3.12.2 COMPLIANCE WITH LABOR LAWS AND AGREEMENTS. Except as
disclosed in Schedule 3.12.2, IOTA and each IOTA Subsidiary has complied in all
material respects with all Labor Agreements and all applicable Laws and Orders
relating to employment or labor. To IOTA's knowledge, no such Law or Order
requires IOTA to give any notice, make any filing, or receive any License or
Permit, or take any other action to, from, or with respect to any Authority
in connection with the transactions contemplated hereby. Except as disclosed
in Schedule 3.12.2, there is no legal prohibition with respect to the
permanent residence in the United States of any IOTA or IOTA Subsidiary
employee currently employed in the United States or his or her permanent
employment by IOTA or the IOTA Subsidiary currently employing such
employee. No present or former IOTA or IOTA Subsidiary employee will
have, at the Closing Date, any claim against IOTA or the IOTA Subsidiary
employing him or her for any matter (other than ordinary course
claims with respect to current wages, salary, vacation or sick pay), or under
any ERISA Plan, and no such employee is a member of a labor union. There has
been no mass layoff or plant closing as defined in the Worker Adjustment and
Retraining Notification Act or any similar state or local "plant closing" law
with respect to the employees of IOTA.
<PAGE>
3.12.3 BENEFIT PLANS.
(a) Schedule 3.12.3 sets forth a list, true and complete in all
material respects, of all employee benefit plans (including agreements)
covering IOTA's employees, including, but not limited to, any ERISA Plan, any
stock option or appreciation plan, bonus plan, and any deferred compensation
plan. With respect to each such plan, IOTA has provided SMSC with a true and
complete copy of the plan document and summary plan description and, where
applicable, the most recent Form 5500 filed for the plan.
(b) Except as disclosed in Schedule 3.12.3(b), neither IOTA nor any
of its ERISA Affiliates has incurred (nor has any event occurred or condition
been incurred or a claim been threatened which reasonably can be anticipated to
result in IOTA's or any of its ERISA Affiliate's incurring) any material loss
or liability in connection with any existing or previously existing employee
benefit plan or which has or could give rise to any liens on any of IOTA's or
any of its Affiliates assets. Without limiting the foregoing, and except as
disclosed in Schedule 3.12.3(b) (i) IOTA is not individually or jointly and
severally liable for any material liability relating to any employee benefit
plan maintained or formerly maintained by IOTA or by an ERISA Affiliate, (ii)
to the best knowledge of IOTA, no plan described in clause (i) is underfunded
or otherwise is reasonably likely to result in material liability to IOTA, and
(iii) IOTA does not currently and has not in the last six years contributed to
any "multiemployer plan", as such term is defined in Section 3(37) of ERISA.
(c) Each plan maintained by IOTA which is a group health plan, within
the meaning of Section 607 of ERISA, has been operated in compliance with the
requirements of Sections 601 through 608 of ERISA ("COBRA"). Except as required
by COBRA, IOTA does not maintain any plan or other arrangement which provides
for post-termination of employment health or other welfare benefits.
<PAGE>
3.13 CUSTOMERS AND SUPPLIERS.
3.13.1 CUSTOMERS. Schedule 3.13.1 sets forth IOTA's sales of
products and services for the period January 1, 1998 through December 31, 1999,
delineated by customer. Schedule 3.13.1 also indicates which of such sales
were paid for by letter of credit.
3.13.2 SUPPLIERS. Schedule 3.13.2 identifies all Persons that
currently supply or, in the period January 1, 1998 through March 31, 1999,
supplied goods or services material to IOTA's manufacture of products or
provision of services and the goods or services so supplied.
3.14 WARRANTIES. Schedule 3.14 sets forth (i) true, complete and accurate
copies or descriptions of all of IOTA's forms of warranty now in effect with
respect to any product sold or service furnished by it and (ii) true, complete
and accurate list of all warranty claims made with respect to any product or
service since January 1, 1998, identifying the product, customer, nature of the
claim and date made, remedial action taken, and dollar amount involved.
3.15 PRODUCT QUALITY.
3.15.1 CLAIMS AND OCCURRENCES. Except as disclosed in Schedule
3.15.1, there is no claim now pending or, to IOTA's knowledge, threatened by or
before any Authority alleging any defect in any product manufactured, shipped,
sold or delivered or service furnished by IOTA or alleging, with respect
thereto, any failure of IOTA to warn or any breach by IOTA of any implied
warranty or representation, as a result of which personal injury or property
damage is alleged to have occurred, nor to IOTA's knowledge is there any valid
basis for any such claim.
3.15.2 COMPLIANCE WITH STANDARDS. All of IOTA's products,
manufacturing standards applied, and testing procedures used comply in all
material respects with all applicable specifications and the IOTA product
literature in which they are described and all applicable Laws promulgated,
administered or enforced by the Federal Communications Commission and with all
applicable standards, if any, established by Underwriters Laboratory, or
equivalent U.S. laboratory, CISPR, or CSA.
3.16 FULL DISCLOSURE. IOTA has heretofore made all of the Books and
Records available to SMSC for its inspection and has heretofore delivered to
SMSC copies, true and complete in all material respects, of all Contracts or
Other Agreements, material Permits and Approvals, and other documents referred
to in the Schedules referenced in this Article III.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SMSC
SMSC hereby represents and warrants to IOTA as follows, and
acknowledges and confirms that IOTA is relying upon such representations and
warranties notwithstanding any investigation made by IOTA or on its behalf:
4.1 ORGANIZATION; AUTHORITY; DUE AUTHORIZATION.
4.1.1 ORGANIZATION AND GOOD STANDING. SMSC is a corporation duly
organized, validly existing and in good standing under the Laws of Delaware.
SMSC is duly qualified or licensed to do business as a foreign corporation and
in good standing in each jurisdiction in which the nature of the FBU Business
or the location of the FBU Assets requires such qualification or licensing,
except where the failure to so qualify or be licensed would not have a Material
Adverse Effect.
<PAGE>
4.1.2 AUTHORITY TO EXECUTE AND PERFORM AGREEMENTS. SMSC has all
requisite corporate power and authority required to enter into, execute and
deliver this Agreement and all of the Additional Agreements and to perform
fully SMSC's obligations hereunder and thereunder.
4.1.3 DUE AUTHORIZATION; ENFORCEABILITY. SMSC has taken all action
necessary to authorize it to enter into and perform fully its obligations under
this Agreement and all of the Additional Agreements and to consummate the
transactions contemplated herein and therein. This Agreement and any Additional
Agreement to which SMSC is a party are, and, as of the Closing Date, together
with any other Additional Agreement to which SMSC will be a party, will be, the
legal, valid, and binding agreements of SMSC, enforceable in accordance with
their respective terms, except as such may be subject to the effect of
bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable
principles relating to or limiting creditors' rights generally (including,
without limitation, laws pertaining to preferential and fraudulent transfers),
and that equitable remedies are subject to the discretion of the court.
4.1.4 SPECIFIC BOARD ACTION. Without limiting any other
representation or warranty hereunder, the Board of Directors of SMSC has
adopted resolutions approving and authorizing the execution and delivery of
this Agreement and the Additional Agreements to which it is or will be a party
and the performance by SMSC of all its obligations hereunder and thereunder.
4.2 NO VIOLATION. Except as disclosed in Schedule 4.3, neither the
execution or delivery by SMSC of this Agreement or any Additional Agreement nor
the consummation of the transactions contemplated herein or therein will (i)
violate any provision of the Certificate of Incorporation, bylaws or other
charter document of SMSC, (ii) violate, conflict with, or constitute a default
under, permit the termination of, or cause the loss of any right or option
under, any Contract or Other Agreement to which SMSC is a party, (iii) require
any Approval or Permit or consent of or notice to any party to any FBU
Contract, (iv) result in the creation or imposition of any Lien or Other
Encumbrance upon FBU Business or any of the FBU Assets, or (v) violate or
require any consent or notice under any Law or Order to which SMSC or any of
the FBU Assets is subject.
4.3 REGULATORY APPROVALS AND OTHER CONSENTS. Schedule 4.3 sets forth a
complete and accurate description of each Third Party Consent or Approval or
Permit under any Law or Order that must be obtained, given, or otherwise
satisfied by SMSC in order that (i) the execution or delivery by SMSC of this
Agreement or any of the Additional Agreements and (ii) the consummation of the
transactions contemplated herein or therein, will not cause any breach of the
representations and warranties contained in Section 4.2.
4.4 FINANCIAL INFORMATION. Schedule 4.4 sets forth the statements of net
assets and liabilities of the FBU as of April 30, 1999 (the "April 30
Statement"), and the related statement of revenues and expenses for the two
months then ended, and the statements of revenues and expenses for the years
ended February 28, 1998 and 1999. Said financial statements (a) were prepared
from and in accordance with the Books and Records of SMSC; (b) were prepared in
accordance with GAAP; and (c) fairly present the FBU's financial condition and
the consolidated results of its operations as of the relevant dates thereof
and for the periods covered thereby.
<PAGE>
4.5 INVENTORIES. Schedule 4.5 is a list of all of the FBU's Inventories,
complete and accurate as of its date, which is a date within five days of the
date hereof. All of the FBU's Inventories are properly recorded on the FBU's
March 31, 1999 statement of net assets and liabilities in accordance with GAAP
and, subject to the reserves set forth on the April 30 Statement, consist only
of material in merchantable condition and useable and saleable, at customary
gross margins and with customary markdowns, in the ordinary course of business
consistent with past practice. Except as set forth in Schedule 4.5, all such
Inventories are free of defects and owned by SMSC free and clear of any Liens
or Other Encumbrance.
4.6 ACCOUNTS RECEIVABLE. All of the FBU's accounts receivable represent
bona fide sales of inventory or services of the Company in the ordinary course
of the Business. Schedule 4.6 is a list of all of the FBU's accounts receivable,
complete and accurate as of April 30, 1999. All accounts receivable reflected
on Schedule 4.6, and all accounts receivable arising since the date of such
Schedule, are good and collectible, or have been collected, in the ordinary
course of business at the aggregate recorded amounts thereof, without valid
set-off or counterclaim, subject only to the reserve for bad debts set forth on
the April 30 Statement.
4.7 MATERIAL ADVERSE CHANGES. Since February 28, 1999, SMSC has conducted
the FBU Business only in the ordinary course and consistent with prior
practices, and has not made or instituted, with respect to such business, any
unusual or novel method of manufacture, purchase, sale, lease, management,
accounting or operation or that varies materially from those in use as of such
date, and since such date nothing has occurred respecting the FBU Assets or
FBU Business that is reasonably likely to have a Material Adverse Change, it
being understood that the FBU has continued to incur losses at approximately
the same rate as it had prior to such date and that the continued incurrence of
such losses at approximately such rate shall not be deemed a Material Adverse
Change for any purpose of this Agreement.
4.8 TAXES; COMPLIANCE WITH LAWS; GOVERNMENTAL MATTERS.
4.8.1 Except as would not have a Material Adverse Effect, within the
times and in the manner prescribed by Law, SMSC has filed all Tax Returns that
SMSC is required to file, has paid or provided for all Taxes shown thereon to
be due and owing by it and has paid or provided for all deficiencies or other
assessments of Taxes, interest or penalties owed by it, and no taxing Authority
has asserted any claim for the assessment of any additional Taxes of any nature
with respect to any periods covered by any such Tax Returns.
4.8.2 Except as would not have a Material Adverse Effect, SMSC has
complied with, and is now in compliance with, all Laws or Orders applicable to
the FBU Business, including any Environmental Laws or Orders. Schedule 4.8.2
sets forth each Approval or Permit material to the conduct of the FBU Business,
together with its date of expiration and a brief description of its material
terms. The Approval or Permits already held by SMSC as disclosed in Schedule
4.8.2 are the only Approvals or Permits material to or necessary for the
conduct of the FBU Business.
<PAGE>
4.8.3 Without limiting the generality of the foregoing or any other
representation or warranty contained in this Agreement, and except as disclosed
on Schedule 4.8.3, SMSC hereby warrants (without representing) that:
(a) SMSC has obtained all permits, licenses and other
authorizations which are required to be held or obtained by SMSC or in
connection with the FBU Assets or the FBU Business under all Environmental
Laws and Orders, a complete list of which permits, licenses and
authorizations is set forth on Schedule 4.8.2, and SMSC is in full
compliance with all terms and conditions of the required permits,
licenses, and authorizations, and is also in full compliance with all
other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in the
Environmental Laws and Orders;
(b) there is no pending or, to the best knowledge of SMSC,
threatened civil or criminal litigation, notice of violation, investigation or
administrative proceeding relating in any way to any Environmental Laws or
Orders (including notices, demand letters, or claims under RCRA, CERCLA
or similar state or local laws) involving or relating to the FBU
Assets or the FBU Business, nor does SMSC have any indication or
reason to believe that any thereof is threatened or imminent. There
have not been and there are not any events, conditions, circumstances,
activities, practices, incidents, actions, or plans which may interfere
with or prevent continued compliance, or which may give rise to any
common law or legal liability, or otherwise form the basis of any claim,
action, suit, proceeding, hearing, study, or investigation, based on or related
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling, or the emission, discharge, release, or
threatened release into the environment, of any pollutant, contaminant,
chemical, industrial, hazardous, or toxic material or waste, including, without
limitation, any liability arising, or any claim, action, demand, suit,
proceeding, hearing, study, or investigation which may be brought, under RCRA,
CERCLA, or similar state or local laws.
(c) None of SMSC's owned or leased properties used in or in any
way related to the FBU Business is listed or proposed for listing on the
National Priorities List pursuant to CERCLA or on the Comprehensive
Environmental Response Compensation Liability Information System or any
similar state list of sites.
(d) SMSC has not, with respect to the FBU Assets or the FBU
Business:
(i) reported a discharge or release pursuant to any
Environmental Law or Order;
(ii) filed a notice pursuant to Section 103(c) of CERCLA;
(iii) filed a notice pursuant to Section 3010 of RCRA,
indicating the generation of any hazardous waste, as that term is defined
under CFR Part 261 or any state equivalent; or
(iv) filed any notice under any applicable Environmental Law
or Order reporting any violation of any applicable Environmental Law or Order.
<PAGE>
(e) There is not now, nor to SMSC's knowledge has there ever
been, on or in any owned or leased properties used by or in connection with
the FBU Business:
(i) any treatment, recycling, storage or disposal of any
hazardous waste, as that term is defined under 40 CFR Part 261 or any state
equivalent, that requires or required an Approval or Permit pursuant to
Section 3005 of RCRA; or
(ii) any underground storage tank or surface impoundment or
landfill or wastepile.
(f) There is not now on or in any owned or leased properties
used by or in connection with the FBU Business any polycholorinated biphenyls
(PCBs) used in pigments, hydraulic oils, electrical transformers or other
equipment.
(g) Any asbestos-containing material which is on or part of any
owned or leased properties used by or in connection with the FBU Business is in
good repair according to the current standards and practices governing such
material, and its presence or condition does not violate any currently
applicable Environmental Law.
4.9 LITIGATION. Schedule 4.9 sets forth an accurate and complete
description of every pending or, to SMSC's knowledge, threatened adverse claim,
dispute, governmental investigation, suit, action (including, without
limitation, nonjudicial real or personal property foreclosure action),
arbitration, legal, administrative or other proceeding of any nature,
domestic or foreign, criminal or civil, at law or in equity, by or
against or otherwise relating to or affecting (i) SMSC, to the extent
that such claim, dispute, investigation, suit, action, arbitration or
proceeding, if determined adverse to SMSC, is reasonably likely to
have a Material Adverse Effect on SMSC (considering for purposes
of this clause (i) only clauses (ii) and (iii) of the definition of
"Material Adverse Effect"), or (ii) the FBU Business or the FBU Assets. Except
as disclosed in Schedule 4.9, no Order is in effect enjoining or requiring SMSC
to take or refrain from taking any action of any kind with respect to the FBU
Business or the FBU Assets.
4.10 ASSETS.
4.10.1 TANGIBLE PERSONAL PROPERTY. Schedule 4.10.1 lists, as of the
date hereof, each item of Tangible Personal Property used by SMSC primarily in
the FBU Business, identifying its location, and, if not owned by SMSC, the
owner thereof and any Contract or Other Agreement relating to the possession
or use thereof.
4.10.2 Except as disclosed in Schedule 4.10.1, as of the date hereof:
(a) SMSC has and in accordance with this Agreement will convey to
IOTA at the Closing good and marketable title to each item of the Tangible
Personal Property identified on Schedule 4.10.1 owned by it, free and clear of
all Liens or Other Encumbrances, except for liens, if any, for personal
property taxes not due and liens of repairpersons or bailees or other similar
liens incurred in the ordinary course of business in respect of obligations
that are not overdue; and
<PAGE>
(b) each item of the Tangible Personal Property identified on
Schedule 4.10.1 is in good operating condition and repair (ordinary wear and
tear excepted), useable in the ordinary course of business.
4.10.3 INTANGIBLE PERSONAL PROPERTY. Schedule 4.10.3 sets forth, to
the best of SMSC's knowledge, as of the date hereof: (a) a true and complete
schedule of each (i) Mark, (ii) Patent, (iii) item of Software, or (iv)
registered copyright or mask work right, and each registration and application
therefor, in each case used in the FBU Business, except for any item of the
foregoing included in FBU Excluded Assets or in the Shared Technical
Documentation and Trade Secrets; (b) a true and complete schedule identifying
all Technical Documentation and the specific location of each item thereof;
and (c) a true and complete schedule of each Contract or Other Agreement to
which SMSC is a party relating to any item of Intangible Personal Property so
identified. Schedule 4.10.3 specifies which of such Contracts or Other
Agreements requires SMSC to pay or entitles it to receive any royalty, license
fee, or other compensation and the amount thereof or the basis for computing
same. Schedule 4.10.3 also identifies each item of such Intangible Personal
Property development of which was directly funded by a third Person (including
any SMSC officer, director, or employee) or was conducted by or as a joint
venture, in partnership, or otherwise in collaboration, with any other Person
(except an employee solely in his or her capacity as such) and any Contract
or Other Agreement pursuant to which same occurred.
4.10.4 Except as indicated in Schedule 4.10.3, as of the date hereof:
(a) subject to the knowledge qualifications in clauses (d)(ii) and
(iii), immediately below, SMSC is the owner of and in accordance with this
Agreement will convey to IOTA at the Closing all right, title and interest in
and to each item of the Intangible Personal Property identified on Schedule
4.10.3, except for such items of Intangible Personal Property which are
Excluded Assets, Shared Technical Documentation and Trade Secrets (except
to the extent provided in the Shared Technical Documentation and Trade
Secrets Agreement) or not FBU Assets, free and clear of all Liens or Other
Encumbrances;
(b) all Marks, Patents, copyrights, mask work rights and all other
Intangible Personal Property identified on Schedule 4.10.3 (except for any item
of the foregoing included in FBU Excluded Assets or which is not an FBU Asset,
other than U.S. Patent No. 5,844,586 (the "Heater Patent"), and other than the
Shared Technical Documentation and Trade Secrets) or included in the Shared
Technical Documentation and Trade Secrets and all state, Federal, and foreign
registrations listed in Schedule 4.10.3, and the Heater Patent, are, to the
best of SMSC's knowledge, valid and in full force and effect, and all
applications therefor listed in Schedule 4.10.3 have been properly filed and
are in proper form, and none of the foregoing are subject to any Taxes,
maintenance fees or actions falling due within 120 days after the date hereof;
(c) there are no existing Orders and no pending claims, actions,
judicial or other adversary proceedings or disputes involving SMSC concerning
any item of the Intangible Personal Property identified on Schedule 4.10.3 or
included in the Shared Technical Documentation and Trade Secrets, and, to
SMSC's knowledge, no such action, proceeding, dispute or disagreement is
threatened;
<PAGE>
(d) (i) SMSC has, and SMSC has not done, and has not omitted to do,
anything that, upon consummation of the transactions contemplated hereby, would
prevent IOTA from having, the full, exclusive, and irrevocable right and
authority in perpetuity to use each item of the Intangible Personal Property
identified on Schedule 4.10.3 (except for any item of the foregoing included
in FBU Excluded Assets or the Shared Technical Documentation and Trade Secrets,
or which is not an FBU Asset) as SMSC has used it previously in the
FBU Business; or the irrevocable right and authority in perpetuity
to use the Intangible Personal Property included in the Shared
Technical Documentation and Trade Secrets insofar as provided in
the Shared Technical Documentation and Trade Secrets Agreement; or
the right of IOTA under the Covenant Not To Sue with respect to the
SMSC Patent Rights, as defined therein, as previously used in the FBU
Business; (ii) to SMSC's knowledge, such use did not ever, does not, and will
not conflict with, infringe upon, or violate any Patent, copyright, mark work
right, Mark, Trade Secret or other proprietary right of any other Person, and
no Person has made any assertion contrary to or inconsistent with the
foregoing; and, (iii) to SMSC's knowledge, no Person has infringed upon or
violated any Intangible Personal Property identified on Schedule 4.10.3 (except
for any item of the foregoing included in FBU Excluded Assets or which is not
an FBU Asset, other than the Heater Patent and other than the Shared Technical
Documentation and Trade Secrets), or included in the Shared Technical
Documentation and Trade Secrets, or the Heater Patent, or threatened to do so;
(e) to SMSC's knowledge all of Trade Secrets included in the FBU
Assets are presently protectible, are not part of the public knowledge or
literature, and have not been used, divulged or appropriated for the benefit
of any Person other than SMSC or to the detriment of SMSC; and
(f) except as set forth in Schedule 4.10.4(f), upon commencement of
employment with SMSC, and prior to disclosure to any SMSC employee of any Trade
Secret included in the FBU Assets or other SMSC confidential information
included in the FBU Assets, each employee of SMSC (whether now or at any time
previously employed) executed an agreement with SMSC in the form set forth in
Schedule 4.10.4(f); each such agreement has vested fully, exclusively, and
irrevocably in SMSC all Intangible Personal Property identified on Schedule
4.10.3 (except for any item of the foregoing included in FBU Excluded Assets
or which is not an FBU Asset, other than the Heater Patent and other than
the Shared Technical Documentation and Trade Secrets), or included in the
Shared Technical Documentation and Trade Secrets developed, in whole or in
part, or alone or together with others, by each SMSC employee during the
course of his or her employment with SMSC and is otherwise enforceable by
SMSC in accordance with its terms, and the Heater Patent; and to SMSC's
knowledge, no employee has breached or threatened to breach any term thereof.
4.10.5 USE RESTRICTIONS. Except as disclosed in Schedule 4.10.5,
none of the Tangible Personal Property identified in Schedule 4.10.1 or
Intangible Personal Property identified on Schedule 4.10.3 is subject to (a)
any material contractual restriction on the manner in, purpose for, or location
at, which same may be used, or (b) other restriction on any use of same that
would result from the consummation of the transactions contemplated hereby.
<PAGE>
4.10.6 SUFFICIENCY OF ASSETS. Except for cash, the FBU Assets,
together with the Shared Technical Documentation and Trade Secrets and the
property and services to be provided pursuant to the Additional Agreements,
are sufficient, without inclusion of any FBU Excluded Assets, for the operation
of the FBU Business substantially as presently conducted.
<PAGE>
4.11 AGREEMENTS. Schedule 4.11A sets forth a true and complete list of
each Contract or Other Agreement now in effect relating to the FBU Assets or
the FBU Business, except (i) any Contract or Other Agreement specifically
identified in Schedule 1.25.3, 2.2.1A, 2.2.1B, 4.10.1, 4.10.3, or 4.12.1,
that would be required to be disclosed therein but for specific exclusions
contained in any of such Sections of this Agreement; (ii) purchase orders
to SMSC vendors or customer orders of less than $25,000 for FBU Business
products made in the ordinary course of the FBU Business; and (iii) any
other Contract or Other Agreement made in the ordinary course of the
FBU Business not involving aggregate payments, costs, or potential liabilities
in excess of $25,000. Except for purchase orders and sales orders or as
disclosed in Schedule 4.3, all FBU Contracts are assignable and shall be
assigned by SMSC to IOTA in connection with the transactions contemplated by
this Agreement.
4.11.1 Except as disclosed in Schedules 4.9, 4.11A, 4.10.1, 4.10.3,
or 4.12.1:
(a) each FBU Contract material to the FBU Business is the valid,
legal and binding obligation of SMSC and, to SMSC's knowledge, of the other
parties thereto, enforceable in all material respects in accordance with its
terms against such other party and is in full force and effect, except as such
may be subject to the effect of bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or limiting
creditors' rights generally (including, without limitation, laws pertaining to
preferential and fraudulent transfers), and that equitable remedies are
subject to the discretion of the court;
(b) to SMSC's knowledge, no other party to any Contract or Other
Agreement material to the FBU Business is now in material breach thereof or has
breached the same in any material respect prior to the date hereof; SMSC has no
knowledge of any anticipated material breach thereof by any such party; and
there is not currently unresolved any disagreement or dispute arising under any
Contract or Other Agreement the failure to resolve or resolution of which may
have a Material Adverse Effect;
(c) SMSC is not under any material liability or obligation with
respect to the return of Inventory or products sold by the FBU Business that
are in the possession of distributors, wholesalers, retailers, or customers;
(d) SMSC is not a party to, nor bound by, any Contract or Other
Agreement or any provision of its Certificate of Incorporation or bylaws that
restricts the conduct of the FBU Business or the business to be conducted by
IOTA from and after the Closing anywhere in the world;
(e) none of SMSC's current or former shareholders (excluding holders
of less than 10% of any class of SMSC's outstanding capital stock), officers,
directors, employees or agents, or any of their respective Affiliates, or any
of SMSC's current or former consultants, salesmen, sales representatives or
agents or distributors, is a party to any FBU Contract;
(f) SMSC is not party to or bound by any Contract or Other Agreement
(A) providing for the payment of any bonus or commission based on sales or
earnings or return on net assets or other measure of performance of the FBU
Business or (B) providing for any bonus or other payment by SMSC based on the
sale of any portion of the FBU Business; and
(g) SMSC is not party to or bound by any FBU Contract that is in the
nature of a partnership or joint venture agreement.
<PAGE>
4.11.2 Schedule 4.11B sets forth a true and correct list of each
proposed agreement, commitment, arrangement, or other understanding under
current discussion between SMSC and any third person that would, or reasonably
could be expected to, be required to be disclosed pursuant to any provision of
this Agreement, if same had been executed as of the date hereof. SMSC has
previously provided to IOTA a copy of the most recent draft of such agreement
and other documents evidencing the current state of such discussion.
4.12 LABOR AND EMPLOYMENT MATTERS.
4.12.1 LABOR AGREEMENTS. Schedule 4.12.1 sets forth a true and
current list of all Labor Agreements now in effect with respect to any SMSC
employee employed in the FBU Business (other than such employees who
IOTA has advised SMSC thatIOTA does not intend to offer employment).
SMSC has previously delivered to IOTA true and correct information in
writing concerning each such employee, including with respect to each
such employee, such employee's (i) name, residence address, and
social security number; (ii) position; (iii) compensation; (iv)
vacation and other fringe benefits; (v) claims under any Welfare Plan
(other than any such claims that are Excluded Liabilities and are
not material in amount); (vi) location of employment; (vii) citizenship; (viii)
resident alien status (if applicable); and (ix) legal prohibition or
restriction with respect to such employee's permanent residence in the United
States or permanent employment in the United States by SMSC or IOTA.
4.12.2 COMPLIANCE WITH LABOR LAWS AND AGREEMENTS. Except as
disclosed in Schedule 4.12.2, SMSC has complied in all material respects with
all Labor Agreements and all applicable Laws and Orders relating to employment
or labor and relating to any FBU Employee. To SMSC's knowledge, no such Law or
Order requires SMSC or IOTA to give any notice, make any filing, or receive any
License or Permit, or take any other action to, with, or from or with respect
to any Authority in connection with the transactions contemplated hereby. No
present or former SMSC employee will have at the Closing Date, any claim
against SMSC or IOTA for any matter including, without limitation, for wages,
salary, vacation or sick pay, or under any ERISA Plan, and no such employee is
a member of a labor union. There has been no mass layoff or plant closing as
defined in the Worker Adjustment and Retraining Notification Act or any similar
state or local "plant closing" law with respect to the employees of SMSC.
4.12.3 BENEFIT PLANS.
(a) Schedule 4.12.3 sets forth a list, true and complete in all
material respects, of all employee benefit plans (including agreements)
covering present FBU Employees, including, but not limited to, any ERISA Plan,
any stock option or appreciation plan, bonus plan, and any deferred
compensation plan. With respect to each such plan, SMSC has provided
IOTA with a true and complete copy of the plan document and summary plan
description and, where applicable, the most recent Form 5500 filed for
the plan. Schedule 4.12.3 includes a statement as to the aggregate amount
of severance payments that SMSC would be required to pay under SMSC's
severance plan (and any other plans or agreements providing
for the payment of severance or similar benefits) assuming the termination of
all of the employees listed on Schedule 5.4.1 (without taking into account any
subsequent employment of any of such employees by SMSC or any other employer).
<PAGE>
(b) Except as disclosed in Schedule 4.12.3(b), neither SMSC nor any
of its ERISA Affiliates has incurred (nor has any event occurred or condition
been incurred or a claim been threatened which reasonably can be anticipated to
result in SMSC's or any of its ERISA Affiliate's incurring) any material loss
or liability in connection with any existing or previously existing employee
benefit plan which could become, on or after the Closing Date, an obligation or
liability of IOTA or any of its Affiliates or which has or could give rise to
any liens on any of the Assets. Without limiting the foregoing, (i) SMSC is not
individually or jointly and severally liable for any material liability
relating to any employee benefit plan maintained or formerly maintained by SMSC
or by an ERISA Affiliate, (ii) to the best knowledge of SMSC, no plan described
in clause (i) is underfunded or otherwise is reasonably likely to result in
material liability to SMSC or IOTA, and (iii) SMSC does not currently and has
not in the last six years contributed to any "multiemployer plan", as such term
is defined in Section 3(37) of ERISA.
(c) Each plan maintained by SMSC covering any FBU Employee that is a
group health plan, within the meaning of Section 607 of ERISA, has been
operated in compliance with the requirements of Sections 601 through 608 of
ERISA ("COBRA"). Except as required by COBRA, SMSC does not maintain any plan
or other arrangement that provides for post-termination of employment health or
other welfare benefits.
4.13 CUSTOMERS AND SUPPLIERS.
4.13.1 CUSTOMERS. Schedule 4.13.1 sets forth the FBU's sales of
products and services for the period January 1, 1998 through March 31, 1999,
delineated by customer and product. Schedule 4.13.1 also indicates which of
such sales were paid for by letter of credit.
4.13.2 SUPPLIERS. Schedule 4.13.2 identifies all Persons that
currently supply or, in the period January 1, 1998 through March 31, 1999,
supplied goods or services material to the FBU's manufacture of products or
provision of services and the goods or services so supplied. SMSC has no
reason to believe that IOTA would not be able to purchase the same goods or
services from such Persons on comparable or other commercially reasonable
terms.
4.13.3 CONTINUATION OF RELATIONSHIPS. Except as disclosed on
Schedule 4.13.3, no supplier or customer of the FBU, nor any other Person whose
relationship is material to the FBU Business, has indicated to SMSC in any
manner an intention to terminate or modify their relationship with SMSC or the
FBU.
4.14 WARRANTIES. Schedule 4.14 sets forth (i) true, complete and accurate
copies or descriptions of all of the FBU's forms of warranty now in effect with
respect to any product sold or service furnished by it and (ii) true, complete
and accurate list of all warranty claims made with respect to any product or
service since January 1, 1998, identifying the product, customer, nature of the
claim and date made, remedial action taken, and dollar amount involved.
<PAGE>
4.15 PRODUCT QUALITY.
4.15.1 CLAIMS AND OCCURRENCES. Except as disclosed in Schedule
4.15.1, there is no claim now pending or, to SMSC's knowledge, threatened by or
before any Authority alleging any defect in any product manufactured, shipped,
sold or delivered or service furnished by the FBU or alleging, with respect
thereto, any failure of SMSC to warn or any breach by SMSC of any implied
warranty or representation, as a result of which personal injury or property
damage is alleged to have occurred, nor to SMSC's knowledge is there any valid
basis for any such claim.
4.15.2 COMPLIANCE WITH STANDARDS. All of the FBU's products,
manufacturing standards applied, and testing procedures used comply in all
material respects with all applicable specifications and the FBU's product
literature in which they are described and all applicable Laws promulgated,
administered or enforced by the Federal Communications Commission and with all
applicable standards established by Underwriters Laboratory, or equivalent U.S.
laboratory, CISPR, or CSA.
4.16 FULL DISCLOSURE. SMSC has heretofore made all of the FBU Books and
Records available to IOTA for its inspection and has heretofore delivered to
IOTA copies, true and complete in all material respects, of all Contracts or
Other Agreements, Permits and Approvals, and other documents referred to in the
Schedules referenced in this Article IV.
4.17 INVESTMENT REPRESENTATIONS.
(a) With respect to the IOTA Shares being issued pursuant to this
Agreement, SMSC has reviewed the merits and risks of an investment in the IOTA
Shares with such tax and legal counsel and with an investment advisor to the
extent they have deemed advisable, and SMSC is not relying on IOTA or any
director, shareholder, employee, advisor or Affiliate of any such Person with
respect to the economic, tax and other considerations relevant to an investment
in the IOTA Shares.
<PAGE>
(b) SMSC is acquiring the IOTA Shares solely for its own account
without a view to the distribution thereof, or for the account, in whole or in
part, of any other person or entity.
(c) SMSC understands that the issuance of the IOTA Shares is
intended to be exempt from registration under the Securities Act by virtue of
Section 4(2) of the Securities Act of 1933, as amended (the "Securities Act"),
that the IOTA Shares are not registered under the Securities Act,
and that absent such registration such securities must be held indefinitely
unless the subsequent disposition thereof is registered under the
Securities Act or an exemption from such registration is available.
SMSC acknowledges that IOTA has not undertaken and does not intend
to register any of the IOTA Shares and will have no obligation to
effect any registration on behalf of SMSC or to assist SMSC in
complying with any exemption from registration under the Securities Act or any
state securities ("Blue Sky") laws. SMSC also understands that the sale or
other transfer of the IOTA Shares is further restricted by the terms of the
Stockholders Agreement. SMSC recognizes such restrictions on the
transferability of the IOTA Shares and is able to bear the substantial economic
risk of an investment in the IOTA Shares, including a complete loss thereof,
for an indefinite period of time.
(d) SMSC will not sell, hypothecate or otherwise transfer any or all
of the IOTA Shares (i) in violation of the Securities Act or (ii) other than in
accordance with the terms of the Stockholders Agreement, and SMSC recognizes
and agrees that any transfer of the IOTA Shares shall be made only upon SMSC
first having delivered to IOTA a favorable written opinion of counsel,
reasonably satisfactory in form and substance to IOTA, to the effect that the
proposed sale or transfer is exempt from registration under the Securities Act
and any applicable Blue Sky laws. IOTA acknowledges that SMSC intends within a
year from the Closing Date to sell at least half of the IOTA Shares in one or
more transactions exempt from the foregoing securities laws.
(e) SMSC acknowledges that the certificates evidencing the IOTA
Shares, and any substitutions or replacements thereof, shall bear a legend
referencing the foregoing restrictions.
ARTICLE V
CERTAIN COVENANTS
The parties hereto covenant and agree as follows:
5.1 BUSINESS EXAMINATIONS AND PHYSICAL INVESTIGATIONS OF ASSETS. Prior to
the Closing Date, IOTA shall permit SMSC, through its employees and
representatives, to make such investigations and examinations of IOTA and its
Books and Records as SMSC shall reasonably request, and SMSC shall permit IOTA,
through its employees and representatives, to make such investigations and
examinations of the FBU Assets and the FBU Books and Records as IOTA may
reasonably request. Any such investigations and examinations shall be conducted
at reasonable times and under reasonable circumstances. All such information
shall be kept confidential pursuant to Section 8.2.
5.2 CONDUCT OF BUSINESS. From the date hereof through the Closing Date,
IOTA shall conduct its business, and SMSC shall conduct the FBU Business, only
in the ordinary course and consistent with prior practices, and neither shall
make or institute, with respect to such business, any unusual or novel methods
of manufacture, purchase, sale, lease, management, accounting or operation or
that varies materially from those in use as of the date hereof, and each shall
maintain, keep and preserve its respective assets in good condition and repair.
In addition, IOTA and SMSC shall use their respective reasonable efforts (i) to
preserve IOTA's business and the FBU Business respectively and their respective
organizations intact, (ii) to keep available for IOTA's benefit the services of
the respective employees, agents, and independent contractors of IOTA and the
FBU Business, (iii) to preserve for the benefit of IOTA the goodwill of the
suppliers, customers, and others having business relations with the respective
businesses, and (iv) to cooperate with SMSC and use reasonable efforts to
assist SMSC in obtaining the consent of any licensor or other party to any
Contract or Other Agreement that may be required by reason of the transactions
contemplated herein.
<PAGE>
5.3 LITIGATION. From the date hereof through the Closing Date, each party
shall promptly notify each other party of any lawsuit, claim, proceeding, or
investigation that after the date hereof is threatened or commenced against any
of them that is reasonably likely to have a Material Adverse Effect.
5.4 ARRANGEMENTS WITH EMPLOYEES.
5.4.1 In connection with the transaction contemplated by this
Agreement, and notwithstanding Section 5.8, IOTA will make offers of employment
to the SMSC employees employed in the FBU Business listed on Schedule 5.4.1,
which offers shall be set forth in letters substantially in the form included
in such Schedule, and such employees may accept such offers (employees
receiving and accepting such offers being referred to herein as "FBU
Employees").
5.4.2 SMSC shall issue termination notices to the FBU Employees and
shall provide all usual, customary and legally required documents to terminate
such employees' employment. Any severance benefits due such employees upon their
termination by SMSC shall be the responsibilities of SMSC and not of IOTA.
5.4.3 To the extent required by applicable Law, SMSC shall provide
all its employees who cease to be employees, including the FBU Employees, with
any information regarding individual conversion privileges under any group
insurance, long-term disability, long-term care, and other group and/or
individual policies maintained on behalf of employees. To the extent required
by applicable Law, SMSC shall provide all of its employees who cease to be
employees, including the FBU Employees, with the ability to elect continuation
health coverage under their respective health programs in accordance with the
Consolidated Omnibus Budget Reconciliation of 1985, as amended ("COBRA"), and
shall apply with all other applicable Laws relating to the termination of
employees.
5.4.4 SMSC shall pay its employees who become IOTA employees salary
or wages accrued through the Closing Date.
5.4.5 Promptly following the Closing, IOTA intends to require the
FBU Employees to sign agreements with respect to the confidentiality and
nondisclosure of confidential information and the assignment of rights to IOTA.
5.5 NO SOLICITATION OR NEGOTIATION. Neither IOTA nor SMSC shall or
permit any of its directors, officers, employees, representatives, or agents
to initiate or solicit, directly or indirectly, any inquiries or the making of
any proposal, or engage in negotiation or discussion with any Person, or provide
any confidential information or data to any Person, with respect to purchase of
any of IOTA's assets or the FBU Assets, except for Inventory sold in the
ordinary course of business, or any acquisition of or business combination with
IOTA or the FBU, except respecting the transactions contemplated by this
Agreement and the Additional Agreements.
5.6 BOOKS AND RECORDS. Following the Closing, upon the request of any
party, each other party shall make available to the requesting party such
records and information relating to IOTA's business or the FBU Business in its
possession that the requesting party may reasonably require in connection with
income, franchise or other tax matters or for any other proper purpose under
circumstances in which such information cannot be readily obtained from another
source.
<PAGE>
5.7 COVENANTS NOT TO COMPETE.
5.7.1 COVENANT. SMSC covenants and agrees that, for a period of two
years from the Closing Date, it shall not, directly or indirectly (through its
subsidiaries or otherwise), as principal, partner, agent, consultant,
stockholder, or otherwise, anywhere in the world (the "Territory"), engage or
attempt to engage in the business of designing, making, or selling MEMS
Devices. IOTA covenants and agrees that for a period of two years from the
Closing Date, it shall not, directly or indirectly (through its subsidiaries or
otherwise), as principal, partner, agent, consultant, stockholder, or
otherwise, anywhere in the Territory, engage in the business of designing,
making or selling any semiconductor device that is not an integral part of a
MEMS Device, except that this provision shall not preclude IOTA from engaging
in the business of designing, making and selling RC (Resistor-Capacitor)
networks or RCD (Resistor-Capacitor-Diode) networks. Notwithstanding the
foregoing, this Section 5.7.1 shall not prohibit SMSC or IOTA from owning not
more than 2% of any class of the outstanding securities of any entity.
5.7.2 REASONABLENESS OF RESTRICTIONS. The parties recognize that the
foregoing territorial and time limitations are reasonable and properly required
for the adequate protection of the respective businesses of IOTA and SMSC and
that in the event that any such territorial or time limitation is deemed to be
unreasonable in court or arbitration or otherwise, the parties agree to
request, and to submit to, the reduction of said territorial or time limitation
to such an area or period as shall be deemed reasonable by the court or
arbitrator.
5.7.3 INCREASED TIME LIMITATIONS. In the event of any breach by any
party of the above restrictive covenants, then the time limitation thereof
shall be extended with respect to such breaching party for a period of time
during which such breach shall occur.
5.7.4 SEVERABILITY OF CLAIMS. The existence of any claim or cause of
action against any party, whether predicated upon this Agreement or otherwise,
shall not constitute a defense to the enforcement of the foregoing restrictive
covenants, but shall be resolved by separate proceeding.
5.7.5 INJUNCTIVE RELIEF. Each party agrees that a remedy at law for
any breach of the foregoing shall be inadequate and any aggrieved party shall
be entitled to injunctive relief, in addition to any other remedy it might have.
5.8 NON-SOLICITATION. SMSC and IOTA will, for a period of three years
from the Closing Date, refrain from, either alone or in conjunction with any
other Person, or directly or indirectly through its present or future
subsidiaries employing, engaging or seeking to employ or engage any Person who
within the prior six (6) months had been an employee of the other party unless
such employee (A) resigns voluntarily (without any solicitation from the other
party or any of its Affiliates) or (B) is terminated by the other party or any
of its Affiliates after the Closing Date.
<PAGE>
5.9 IC PRODUCTS. IOTA will fill orders placed by SMSC prior to December
31, 1999, for commercially reasonable quantities of Integrated Circuit Products
wafers, of the same quality as heretofore furnished by the FBU to SMSC, at a
price per wafer of $300. IOTA may retain and use the SMSC Technical
Documentation identified in Schedule 4.10.3 as being currently used by the FBU
Business in the manufacturing and testing of the Integrated Circuit Products,
for the sole purpose of continuing to do so for SMSC as provided in this
Section 5.9. IOTA shall keep such Technical Documentation in confidence in
accordance with Section 8.2.
5.10 IOTA USE OF EXISTING MATERIALS, REMOVAL OF SIGNS. Upon the Closing,
IOTA shall cease using the names "Standard Microsystems Corporations" and/or
"Standard Microsystems" and/or the Mark "SMSC" on products, packaging, product
literature, and advertising that is not in existence or in process as of the
Closing Date, and shall not otherwise use either of such names or such Mark.
IOTA shall be entitled to exhaust supplies of such material in existence or in
process as of the Closing Date in the ordinary course of business, including,
without limitation, to resell such material returned on account of stock
rotation, warranty, RMAs, and like policies or commitments. IOTA shall remove
all signs bearing such names from the property subject to the Real Property
Lease within one year after the Closing Date.
5.11 COMPLIANCE WITH THIRD PARTY INFORMATION OBLIGATIONS AND RESTRICTIONS.
As used in this Section 5.11, "Third Party Information" means all processes,
designs, methodologies, computer programs (including all source codes) and
related documentation, technical information, manufacturing, engineering, and
technical drawings, know-how, pending patent applications, specifications, and
other information, documents, or materials of a proprietary or confidential
nature received by SMSC prior to the Closing pursuant to an agreement
("Confidentiality Agreement") and that is not owned by SMSC or IOTA. IOTA shall
use reasonable best efforts to not disclose Third Party Information directly or
indirectly to any Person to whom such disclosure is prohibited by any such
Confidentiality Agreement, and IOTA will not violate any Confidentiality
Agreement. With respect to any Third Party Information that comes into the
possession or control of IOTA pursuant to this Agreement, IOTA shall perform
and comply with all obligations and restrictions imposed on the recipient of
such Third Party Information by any Contracts or Other Agreements listed in
Schedule 1.25.3 or by any proprietary information agreement, nondisclosure
agreements, confidential disclosure agreements, Confidentiality Agreements,
evaluation agreements, development agreements, license agreements, or other
agreements copies of which are provided to IOTA concurrently with or prior to
IOTA's receipt of such Third Party Information and pursuant to which SMSC or
IOTA has received, or receives before or after Closing, such Third Party
Information. The parties shall cooperate in good faith as reasonably required
to enable SMSC to comply with all obligations of confidentiality,
nondisclosure, protection, and return or destruction of Third Party
Information, and all restrictions on the use, modification, copying,
distribution, or transfer of such Third Party Information, under any agreements
entered into by SMSC providing for confidentiality of Third Party Information.
SMSC represents, warrants and covenants that SMSC's and IOTA's compliance with
such obligations will not have a Material Adverse Effect.
5.12 REMITTANCE OF PAYMENTS; NOTICES. After the Closing, SMSC shall
promptly remit and pay over in kind to IOTA any and all payments respectively
received by SMSC in respect of Contracts or Other Agreements relating to any
FBU Assets or Assumed Obligations. SMSC will cooperate with IOTA, immediately
after the Closing, in notifying all customers and suppliers of the FBU Business
or other interested Persons of the consummation of the transactions
contemplated hereby.
5.13 UPDATE OF SCHEDULES. Between the date hereof and the Closing Date,
IOTA and SMSC shall cooperate in updating Schedules 2.2.1A, 2.2.1B, 3.5, 3.6,
4.5, and 4.6, to reflect changes therein as permitted hereby.
<PAGE>
ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
6.1 CONDITIONS TO IOTA'S OBLIGATION. The obligation of IOTA to
consummate the transactions contemplated herein shall be subject to the
fulfillment or waiver, at or before the Closing Date, of all of the conditions
set forth below in this Section 6.1.
6.1.1 REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF COVENANTS.
(a) The representations and warranties of SMSC in this Agreement shall be true
in all material respects on and as of the Closing Date with the same force and
effect as though made on and as of the Closing Date; (b) each obligation of
SMSC to be performed by the Closing Date shall have been timely performed; (c)
there shall not have occurred between the date hereof and the Closing Date any
act of God, war, or terrorism, fire, explosion, or other catastrophe reasonably
likely to have a Material Adverse Effect; (d) no action, suit or proceeding
shall have been instituted before any court or governmental body or instituted
or threatened by any governmental agency or body that might have a Material
Adverse Effect; and (e) SMSC shall have delivered to IOTA certificates to such
effect, to the knowledge of the officer signing the same, dated the Closing
Date and signed by the President or Chairman of such company.
6.1.2 THIRD PARTY CONSENTS. Each Approval or Permit and Third Party
Consent of parties listed in Schedule 6.1.2 shall have been obtained upon terms
and conditions reasonably satisfactory to IOTA.
6.1.3 NO ACTION OR ROCEEDING. No Authority shall have issued an
Order, temporary, preliminary, or otherwise restraining the transactions
contemplated herein.
6.1.4 DELIVERIES. SMSC shall have made all deliveries required to
be made to IOTA pursuant to Sections 2.7 and 2.8.
6.2 CONDITIONS TO SMSC'S OBLIGATION. The obligation of SMSC to
consummate the transactions contemplated herein shall be subject to the
fulfillment or waiver, at or before the Closing Date, of all the conditions
set forth below in this Section 6.2.
6.2.1 REPRESENTATIONS AND WARRANTIES. (a) The representations and
warranties of IOTA in this Agreement shall be true in all material respects on
and as of the Closing Date with the same force and effect as though made on and
as of the Closing Date; (b) each obligation of IOTA to be performed by the
Closing Date shall have been timely performed; (c) there shall not have
occurred between the date hereof and the Closing Date any act of God, war,
or terrorism, fire, explosion, or other catastrophe reasonably likely
to have a Material Adverse Effect; (d) no action, suit or proceeding
shall have been instituted before any court or governmental body or
instituted or threatened by any governmental agency or body that might
have a Material Adverse Effect; and (e) IOTA shall have delivered to
SMSC certificates to such effect, to the knowledge of the
officer signing the same, dated the Closing Date and signed by the President or
Chairman of such company.
<PAGE>
6.2.2 THIRD PARTY CONSENTS. Each Approval or Permit and Third Party
Consent of parties listed in Schedule 6.2.2 shall have been obtained upon
terms and conditions reasonably satisfactory to SMSC.
6.2.3 NO ACTION OR PROCEEDING. No Authority shall have issued an
Order, temporary, preliminary, or otherwise restraining the transactions
contemplated herein.
6.2.4 FINANCING COMMITMENTS. On or before May 27, 1999,
(a) Newlight Associates, L.P. and/or Newlight Associates (BVI), L.P.
(entities of which Robert M. Brill, a director of SMSC and of IOTA, is a
principal), and/or Young Technology Fund, Inc., shall have made a common stock
investment of at least $1,000,000, in immediately available funds (including
pursuant to the February 18, 1999 Agreement identified on Schedule 3.1.2), on
terms acceptable to SMSC in its reasonable discretion (which terms shall not
include registration rights, if any, that are superior to those granted to
SMSC);
(b) IOTA shall have received from and after May 10, 1999, additional
common stock investments of at least $800,000 in immediately available funds,
from qualified investors, on terms acceptable to SMSC in its reasonable
discretion (which terms shall not include registration rights, if any, that
are superior to those granted to SMSC); and
c) IOTA shall have received unconditional commitments from reputable
equipment leasing companies to consummate within 10 days after the Closing Date
equipment financing yielding net proceeds to IOTA of not less than $2,000,000.
6.2.5 DELIVERIES. IOTA shall have made all deliveries required to be
made to SMSC pursuant to Sections 2.6 and 2.8.
6.2.6 STOCKHOLDERS AGREEMENT. Newlight Associates, L.P., Newlight
Associates (BVI), L.P., Donald Weiss, Nicholas E. Ortyl, Stanley Young, Young
Technology Fund, L.L.P., Margot Muller and Henrik Muller shall have executed
the Stockholders Agreement.
6.2.7 EMPLOYMENT AGREEMENTS. IOTA shall have entered into new
employment agreements with Nicholas Ortyl and William Trimmer, on terms
reasonably acceptable to SMSC.
<PAGE>
ARTICLE VII
SURVIVAL AND INDEMNIFICATION
7.1 SURVIVAL. All representations and warranties, covenants, agreements,
and other undertakings of the parties contained in this Agreement or in any
writing delivered pursuant hereto, shall survive the Closing and shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any party hereto, for a period ending on December 31, 2000; provided,
however, that (i) all representations and warranties with respect to title in
or to any assets (Sections 3.10.1(a) and 4.10.2(a)) and Intangible Personal
Property (Sections 3.10.2, 3.10.2, 3.10.4, 4.10.3, 4.10.4 and 4.10.5) shall
survive without limitation, (ii) all representations and warranties with
respect to Taxes and compliance with Laws, including without limitation
compliance with Environmental Laws and Orders (Sections 3.8 and 4.8) and with
respect to ERISA claims and obligations (Sections 3.12.3 and 4.12.3) shall
survive so long as a claim may be made thereunder by an Authority or other
third party, and (iii) SMSC's indemnification obligations with respect to
Excluded Liabilities shall survive without limitation; and provided further,
that the expiration of any representation or warranty shall not affect any
claim made prior to the date of such expiration.
7.2 INDEMNIFICATION BY IOTA. Subject to the next sentence, from and after
the Closing, IOTA shall indemnify, defend and hold harmless SMSC and its
stockholders, directors, officers, employees, and agents from and against (a)
any Loss that may be incurred or suffered by any such party and arising out of
or resulting from any breach of any representation, warranty, covenant or
agreement of IOTA contained in this Agreement or any other Additional
Agreement; and (b) any Loss incurred in enforcing this indemnity. IOTA shall
have no liability under clause (a) of the preceding sentence, (i) except
insofar as the total amount of Losses referred to in such clause (suffered by
all parties having any indemnification claim under such clause) shall exceed
$375,000, or (ii) respecting any breach of representation or warranty or breach
of any covenant or agreement performance of which shall be due as of the
Closing Date, unless any party seeking indemnification for such breach shall
have given IOTA notice thereof or of any claim potentially giving rise thereto
within the relevant survival period as set forth in Section 7.1. In no event
shall IOTA's liability under clauses (a) and (b) of the first sentence of this
Section 7.2 exceed $3,000,000 in the aggregate.
7.3 INDEMNIFICATION BY SMSC. Subject to the next sentence, from and after
the Closing SMSC shall indemnify, defend and hold harmless IOTA and its
stockholders, directors, officers, employees, and agents from and against (a)
any Loss that may be incurred or suffered by any such party and arising out of
or resulting from any breach of any representation, warranty, covenant or
agreement of SMSC contained in this Agreement or any other Additional
Agreement; (b) any Loss that may be incurred or suffered by IOTA respecting
Continuing Warranties Obligations assumed by IOTA pursuant to Section 2.2.2
that arise from any Epidemic Failure of products sold by the FBU prior to the
Closing Date, (c) any Loss that may be incurred or suffered by IOTA arising out
of or resulting from any failure of the parties to comply with any bulk sales
law (including without limitation any such law requiring the filing of any
notices with any Authority), (d) any Loss that may be incurred or suffered by
IOTA arising out of any Excluded Liabilities, and (e) any Loss incurred in
enforcing this indemnity. SMSC shall have no liability under clause (a) of the
preceding sentence, (i) except insofar as the total amount of Losses referred
to in such clause (suffered by all parties having any indemnification claim
under such clause) shall exceed $375,000, or (ii) respecting any breach of
representation or warranty or breach of any covenant or agreement performance
of which shall be due as of the Closing Date, unless any party seeking
indemnification for such breach shall have given SMSC notice thereof or of any
claim potentially giving rise thereto within the relevant survival period as
set forth in Section 7.1. In no event shall SMSC's liability under clauses (a)
and (e) of the first sentence of this Section 7.3 exceed $3,000,000 in the
aggregate. "Epidemic Failure" shall mean product defects and failures resulting
in aggregate Losses from or arising out of Continuing Warranties Obligations to
the extent exceeding $250,000 during the twelve months following the Closing
Date; provided that claims arising out of Continuing Warranties Obligations
shall, to the extent reasonably practicable, be resolved by IOTA on a basis
consistent with the FBU's past practices; and provided further, that in no
event shall SMSC's liability under clause (b) of the first sentence of this
Section 7.3 exceed $2,000,000.
<PAGE>
7.4 NOTICE OF INDEMNIFICATION. Any Person entitled to indemnification
hereunder will (a) give prompt written notice to the indemnifying party of any
claim with respect to which it seeks indemnification and (b) unless in
such indemnified party's reasonable judgment a conflict of interest
may exist between such indemnified and indemnifying parties with
respect to such claim, permit such indemnifying party to assume
the defense of such claim with counsel reasonably satisfactory to
the indemnified party. Whether or not such defense is assumed by the
indemnifying party, the indemnifying party will not be subject to any
liability for any settlement made without its consent (but such consent will
not be unreasonably withheld). The failure of an indemnified party to give
notice pursuant to clause (a) above shall not relieve any indemnifying party of
its obligations hereunder except to the extent such indemnifying party shall
have been prejudiced thereby. An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless, in the reasonable
judgment of any indemnified party, a conflict of interest may exist between
such indemnified party and any other of such indemnified parties with respect
to such claim, in which event the indemnifying party shall be obligated to pay
the fees and expenses of such additional counsel or counsels. The indemnified
party shall cooperate in any defense assumed by the indemnifying party and may
participate in the defense of any claim.
ARTICLE VIII
MISCELLANEOUS
8.1 EXPENSES OF TRANSACTION. Each party shall bear its own direct and
indirect expenses incurred in connection with the negotiation and preparation
of this Agreement and the Additional Agreements and the consummation and
performance of the transactions contemplated herein or therein.
8.2 CONFIDENTIALITY. Subject to any obligation to comply with (i) any
Law (ii) any rule or regulation of any Authority or securities exchange or
(iii) any subpoena or other legal process to make information available to the
Persons entitled thereto, whether or not the transactions contemplated herein
shall be concluded, all information obtained by any party about any other and
all of the terms and conditions of this Agreement and the Additional Agreements
shall be kept in confidence by each party, and each party shall cause its
directors, officers, employees, agents and attorneys to hold such information
confidential; provided, however, that the foregoing shall not apply to (i) any
information obtained from a third Person that, to the knowledge of such party
after due inquiry, was not under any obligation to keep such information
confidential, (ii) any information obtained by such party that is generally
known to others engaged in the trade or business of IOTA or the FBU, (iii) any
information that is in the possession of such party at the time of its receipt
from the other party, or (iv) any information that is or becomes public not due
to a violation of this agreement by such party. If this Agreement shall be
terminated for any reason, each party shall return or cause to be returned to
the other all written data, information, files, records and copies of
documents, worksheets and other materials obtained by such party in connection
with the transactions contemplated herein.
<PAGE>
8.3 PUBLICITY. No publicity release or announcement concerning this
Agreement or the transactions contemplated herein shall be issued without
advance written approval of the form and substance thereof by IOTA and SMSC;
provided, however, that such restrictions shall not apply to any disclosure
required by regulatory Authorities, applicable Law or the rules of any
securities exchange which may be applicable, if the disclosing party shall
notify the other party as promptly as possible prior to such disclosure.
8.4 NOTICES. All notices, requests and other communications hereunder
shall be in writing and shall be delivered by courier or other means of
personal service (including by means of a nationally recognized courier service
or a professional messenger service), or sent by telex or telecopy or mailed
first class, postage prepaid, by certified mail, return receipt requested, in
all cases, addressed to:
SMSC:
Standard Microsystems Corporation
80 Arkay Drive
P.O. Box 18047
Hauppauge, New York 11788-8847
Telecopy: (516) 273-5550
Attention: Steven J. Bilodeau,
President and Chief Executive Officer
With copies to:
Standard Microsystems Corporation
80 Arkay Drive
P.O. Box 18047
Hauppauge, New York 11788-8847
Telecopy: (516) 273-5550
Attention: George W. Houseweart,
Senior Vice President and General Counsel
Loeb & Loeb LLP
345 Park Avenue
New York, New York 10154
Telecopy: (212) 407-4990
Attention: David C. Fischer, Esq.
IOTA:
Inertia Optical Technology Applications, Inc.
24 New England Executive Park
Burlington, Massachusetts 01803
Telecopy: (781) 229-6794
Attention: Nicholas E. Ortyl III,
President and Chief Executive Officer
With a copy to:
Morrison & Foerster LLP
1290 Avenue of the Americas
New York, New York 10104
Telecopy: (212) 468-7900
Attention: Charles B. Friedman, Esq.
<PAGE>
All notices, requests and other communications shall be deemed given on the
date of actual receipt or delivery as evidenced by written receipt,
acknowledgement or other evidence of actual receipt or delivery to the
addressee. In case of service by telecopy, a confirmation copy of such notice
shall be sent, on the date notice is given, by certified mail as set forth
above. Either party hereto may from time to time by notice in writing served as
set forth above designate a different address or a different or additional
person to which all such notices or communications thereafter are to be sent or
given.
8.5 TERMINATION.
8.5.1 This Agreement may be terminated at any time prior to the
Closing:
(i) By mutual consent of SMSC and IOTA;
(ii) By either SMSC or IOTA if, without fault of the terminating
party, the Closing shall not have occurred by June 8, 1999, which date may be
extended by mutual agreement of SMSC and IOTA; and
(iii) By SMSC or IOTA if any Authority shall have issued an order,
decree, or ruling or taken any other action restraining, enjoining, or
otherwise prohibiting the transactions contemplated hereby and such order,
decree, ruling, or other action shall have become final and nonappealable.
8.5.2 If this Agreement is terminated prior to the Closing, then
except for the obligations contained in provisions of this Agreement which
expressly provide for obligations to survive the termination of this Agreement,
all obligations of the parties hereto under this Agreement shall terminate as
of the date that this Agreement is so terminated, and there shall be no
liability, except liability for any breach of this Agreement occurring prior
to such termination, of either party to the other party.
8.6 FURTHER ASSURANCES. Each party shall use its reasonable and diligent
best efforts to proceed promptly with the transactions contemplated herein, to
fulfill or to cause to be fulfilled the covenants made by it or the conditions
precedent to the obligations of the other parties and to execute (before or
after the Closing) such further documents and other papers and perform such
further acts as may be reasonably required or desirable to carry out the
provisions hereof and the transactions contemplated herein. SMSC further agrees
that from time to time after the Closing it will execute and deliver to IOTA or
its designee such further conveyances, assignments, or other written assurance,
and take such further necessary actions, as IOTA may reasonably request to
perfect and protect IOTA's title to the FBU Assets and to secure to IOTA the
benefit of the FBU Business. In addition, SMSC agrees that after the Closing it
will cooperate with IOTA's reasonable requests for assistance in connection
with (i) any litigation, or asserted liability, relating to the FBU Business;
(ii) providing relevant information and data from any books or records relating
to the FBU Business which SMSC may have (including without limitation any
Employee Records retained by SMSC); and (iii) consulting with IOTA concerning
the operations of the FBU Business, including tax and financial matters that
occurred or existed prior to the Closing.
<PAGE>
8.7 MODIFICATIONS AND AMENDMENTS; WAIVERS AND CONSENTS. At any time
prior to the Closing Date or termination of this Agreement, the parties may,
by written agreement:
8.7.1 extend the time for the performance of any of the obligations
or other acts of the other side;
8.7.2 waive any inaccuracies in the representations and warranties
made by the other side contained in this Agreement or any other agreement or
document delivered pursuant to this Agreement; or
8.7.3 waive compliance with any of the covenants or agreements of the
other side contained in this Agreement. However, no such waiver shall operate
as a waiver of, or estoppel with respect to, any subsequent or other failure.
Whenever this Agreement requires or permits a waiver or consent by or on behalf
of any party hereto, such waiver or consent shall and may only be given in
writing.
8.8 ENTIRE AGREEMENT. This Agreement (including the exhibits hereto and
the Schedules), the Additional Agreements, and the documents and instruments to
be executed and delivered pursuant hereto or thereto are the final, complete,
and exclusive agreement among the parties with respect to the transactions
contemplated hereby; supersede all prior agreements, understandings and
representations written or oral, with respect thereto; and may not be
contradicted by evidence of any such prior or contemporaneous agreement,
understanding or representation, whether written or oral. No representation or
warranty has been made by either party respecting the transactions contemplated
hereby, except as expressly set forth herein.
8.9 GOVERNING LAW AND VENUE. This Agreement is to be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within such state. Any suit
brought hereon, any and all legal proceedings, to enforce this Agreement,
shall be brought in the New York state courts or Federal courts sitting
in New York. The parties hereto hereby waiving any claim or defense that
such forum is not convenient or proper. Each party hereby agrees that any
such court shall have in personam jurisdiction over it, consents to service
of process in any manner prescribed in Section 8.4 or in any other manner
authorized by Federal or New York law, and 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 specified
by Law.
8.10 BINDING EFFECT. This Agreement and the rights, covenants, conditions
and obligations of the respective parties hereto and any instrument or agreement
executed pursuant hereto shall be binding upon the parties and their respective
successors, assigns, and legal representatives. Neither this Agreement, nor any
rights or obligations of any party hereunder, may be delegated or assigned by a
party without the prior written consent of the other parties.
<PAGE>
8.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. In making proof of this
Agreement it shall not be necessary to produce or account for more than one
complete set of counterparts.
8.12 SECTION HEADINGS. The section headings of this Agreement are for
convenience of reference only and shall not be deemed to alter or affect any
provision hereof.
8.13 GENDER; TENSE, ETC. Where the context or construction requires, all
words applied in the plural shall be deemed to have been used in the singular,
and vice versa; the masculine shall include the feminine and neuter, and vice
versa; and the present tense shall include the past and future tense, and vice
versa.
8.14 WAIVER OF JURY TRIAL; EXEMPLARY DAMAGES. ALL PARTIES HEREBY WAIVE
THEIR RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS
AGREEMENT OR ANY Additional Agreement. No party shall be awarded punitive or
other exemplary damages respecting any dispute arising under this Agreement or
any Additional Agreement.
8.15 ATTORNEYS' FEES. The unsuccessful party to any court or other
proceeding arising out of this Agreement shall pay to the prevailing party all
reasonable attorneys' fees and costs actually incurred by the prevailing party,
in addition to any other relief to which it may be entitled.
8.16 NO THIRD PARTY RIGHTS. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of
this Agreement on any Person other than the parties hereto, and their
respective successors and assigns, nor is anything in this Agreement intended
to relieve or discharge the obligation or liability of any third Person to any
party to this Agreement, nor shall any provision give any third Person any
right of subrogation or action over against any party to this Agreement.
Without limiting the generality of the foregoing, nothing in this Agreement,
whether express or implied, is intended to confer upon any past, present or
future employee of SMSC or IOTA, or any other person (other than the parties
hereto), any rights to employment or employee benefits, or any other rights or
remedies.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the day and year first above written.
INERTIA OPTICAL TECHNOLOGY APPLICATIONS, INC.
By:___________________________
Nicholas E. Ortyl III
President and Chief Executive Officer
STANDARD MICROSYSTEMS
CORPORATION
By:___________________________
Steven J. Bilodeau
President and Chief Executive Officer
<PAGE>
ASSET PURCHASE AGREEMENT
Between
INERTIA OPTICAL TECHNOLOGY APPLICATIONS, INC.
And
STANDARD MICROSYSTEMS CORPORATION
Dated:
May 27, 1999
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS......................................................1
ARTICLE II PURCHASE AND SALE OF ASSETS; THE CLOSING.........................8
2.1 Assets to be Transferred.........................................8
2.2 Assumed Liabilities and Obligations..............................8
2.3 No Other Liabilities or Obligations Assumed......................9
2.4 Issuance of Common Stock.........................................9
2.5 Closing..........................................................9
2.6 IOTA Deliveries at Closing.......................................9
2.7 SMSC Deliveries at Closing......................................10
2.8 Additional Agreements to be executed at Closing.................11
2.9 Payment of Taxes................................................11
2.10 Valuation and Allocation of Purchase Price......................11
2.11 Non-Assignable Instruments......................................11
2.12 Interdependence.................................................12
ARTICLE III REPRESENTATIONS AND WARRANTIES OF IOTA..........................12
3.1 Organization; Capitalization; Authority; Due Authorization......12
3.2 No Violation....................................................13
3.3 Regulatory Approvals and Other Consents.........................13
3.4 Financial Information...........................................14
3.5 Inventories.....................................................14
3.6 Accounts Receivable.............................................14
3.7 Material Adverse Changes........................................14
3.8 Taxes; Compliance with Laws; Governmental Matters...............14
3.9 Litigation......................................................16
3.10 Assets..........................................................17
3.11 Agreements......................................................18
3.12 Labor and Employment Matters....................................19
3.13 Customers and Suppliers.........................................20
3.14 Warranties......................................................21
3.15 Product Quality.................................................21
3.16 Full Disclosure.................................................21
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SMSC..........................21
4.1 Organization; Authority; Due Authorization......................21
4.2 No Violation....................................................22
4.3 Regulatory Approvals and Other Consents.........................22
4.4 Financial Information...........................................22
4.5 Inventories.....................................................23
4.6 Accounts Receivable.............................................23
4.7 Material Adverse Changes........................................23
4.8 Taxes; Compliance with Laws; Governmental Matters...............23
4.9 Litigation......................................................25
4.10 Assets..........................................................25
4.11 Agreements......................................................28
4.12 Labor and Employment Matters....................................29
4.13 Customers and Suppliers.........................................30
4.14 Warranties......................................................30
4.15 Product Quality.................................................31
4.16 Full Disclosure.................................................31
4.17 Investment Representations......................................31
ARTICLE V CERTAIN COVENANTS...............................................32
5.1 Business Examinations and Physical Investigations of Assets.....32
5.2 Conduct of Business.............................................32
5.3 Litigation......................................................33
5.4 Arrangements with Employees.....................................33
5.5 No Solicitation or Negotiation..................................33
5.6 Books and Records...............................................33
5.7 Covenants Not to Compete........................................34
5.8 Non-Solicitation................................................34
5.9 IC Products; Cooperation re Excluded Contracts..................34
5.10 IOTA Use of Existing Materials, Removal of Signs................35
5.11 Compliance with Third Party Information Obligations and
Restrictions....................................................35
5.12 Remittance of Payments; Notices.................................35
5.13 Update of Schedules...................................... ......36
ARTICLE VI CONDITIONS PRECEDENT TO CLOSING.................................36
6.1 Conditions to IOTA's Obligation.................................36
6.2 Conditions to SMSC's Obligation.................................36
ARTICLE VII SURVIVAL AND INDEMNIFICATION....................................37
7.1 Survival .......................................................37
7.2 Indemnification by IOTA.........................................38
7.3 Indemnification by SMSC.........................................38
7.4 Notice of Indemnification.......................................39
ARTICLE VIII MISCELLANEOUS.................................................. 39
8.1 Expenses of Transaction.........................................39
8.2 Confidentiality.................................................39
8.3 Publicity.......................................................40
8.4 Notices.........................................................40
8.5 Termination.....................................................41
8.6 Further Assurances..............................................41
8.7 Modifications and Amendments; Waivers and Consents..............42
8.8 Entire Agreement................................................42
8.9 Governing Law and Venue.........................................42
8.10 Binding Effect..................................................42
8.11 Counterparts....................................................43
8.12 Section Headings................................................43
8.13 Gender; Tense, Etc................................. ............43
8.14 WAIVER OF JURY TRIAL; EXEMPLARY DAMAGES.........................43
8.15 Attorneys'Fees..................................................43
8.16 No Third Party Rights...........................................43
<PAGE>
Schedules
1.25.3 Contracts or Other Agreements of FBU
1.25.10 Claims or Choses in Action of FBU
1.29 FBU Excluded Assets
1.32 Integrated Circuit Products
2.2.1A Obligations of SMSC to Accept and Pay for Goods or Services
2.2.1B Obligations of SMSC to Deliver Goods or Services
3.1.1 Subsidiaries of IOTA
3.1.2 Capitalization of IOTA
3.3 Regulatory Approvals and Third Party Consents
3.4 Financial Statements
3.5 Exceptions to Inventories
3.6 Exceptions to Accounts Receivable
3.8.2 Approvals or Permits
3.8.3 Violation of Environmental Laws or Orders
3.9 Litigation
3.10.1 Exceptions to Tangible Personal Property
3.10.2 Intangible Personal Property
3.10.3 Exceptions to Intangible Personal Property
3.10.3(f) List of Employees with Confidentiality and Nondisclosure
Agreements
3.10.4 Use Restrictions on Property
3.11 Contracts or other Agreements
3.12.1 Labor Agreements
3.12.2 Violation of Labor Agreements or Applicable Laws and Orders
3.12.3 Employee Benefit Plans
3.12.3(b) Material Loss or Liability under Employee Benefit Plans
3.13.1 Customers
3.13.2 Suppliers
3.14 Warranties
3.15.1 Product Quality Claims
4.3 Regulatory Approvals and Third Party Consents
4.4 Net Assets and Liabilities
4.5 Exceptions to Inventories
4.6 Exceptions to Accounts Receivable
4.8.2 Approval or Permits
4.8.3 Violation of Environmental Laws or Orders
4.9 Litigation
4.10.1 Tangible Personal Property
4.10.3 Intangible Personal Property
4.10.4(f) Form of Employee Confidentiality Agreement
4.10.5 Use Restrictions on Property
4.11A Contracts or Other Agreements
4.11B Pending Contracts
4.12.1 Labor Agreements
4.12.2 Violation of Labor Agreements or Applicable Laws and Orders
4.12.3 Employment Benefit Plans; Amount of Severance Liability
4.12.3(b) Material Loss or Liability Under Employment Benefit Plans
4.13.1 Customers
4.13.2 Suppliers
4.13.3 Exceptions to Continuation of Relationships
4.14 Warranties
4.15.1 Product Quality Claims
5.4.1 List of SMSC Employees to be Offered Employment by IOTA
6.1.2 Requisite Approval or Permit and Third Party Consent of SMSC
6.2.2 Requisite Approval or Permit and Third Party Consent of IOTA
or IOTA Sub
Exhibits
1.49 Real Property Lease
1.52 Shared Technical Documentation and Trade Secrets Agreement
1.54 Stockholders Agreement
1.62 Transition Services Agreement
2.6.1(e) Morrison & Foerster LLP Opinion
2.7.1(b) Bill of Sale re FBU Assets
2.7.1(g) Loeb & Loeb LLP Opinion 2.10 Valuation of FBU Assets
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT dated as of June 1, 1999 by and
between INERTIA OPTICAL TECHNOLOGY APPLICATIONS, INC., a Delaware corporation
("Company") and STANDARD MICROSYSTEMS CORPORATION ("SMSC"), and the other
stockholders of Company listed on the signature page hereof (together with SMSC
to be referred to collectively as the "Stockholders").
The parties agree as follows:
1. Voting.
a. Until SMSC shall own less than 10% of Company's outstanding
Common Stock, Stockholders agree that they shall at all times vote their
Company stock such that the number of directors constituting Company's entire
board of directors shall be not more than seven and to elect as directors two
individuals nominated by SMSC ("SMSC Nominees"); and thereafter, until SMSC
shall own less than 5% of Company's outstanding Common Stock, Stockholders
agree that they shall at all times vote their Company stock such that the
number of directors constituting Company's entire board of directors shall be
not more than seven and to elect as a director one individuals nominated by
SMSC ("SMSC Nominees").
b. So long as SMSC shall have the right hereunder to nominate
one or more directors, the right of the "Principal Common Stockholders" (as
defined in the Stockholders Agreement dated as of March 10, 1999, by and among
Company and certain of its stockholders (the "March 10 Agreement")) to nominate
directors shall instead be exercised (to the extent of SMSC's right to nominate
directors as provided in Section 1(a) hereof) by SMSC.
2. TRANSFER RESTRICTIONS. SMSC agrees that it will not,
directly or indirectly, sell, give a security interest in, or otherwise
transfer any share of Company Common Stock or any interest in any share of
Company Common Stock (any such transaction to be referred to as "sell" or term
of like import) any of its Company Common Stock, except as expressly permitted
by, and in accordance with, this Agreement.
a. If SMSC shall receive from a financially responsible
unaffiliated person (the "Offeror") a written, binding bona fide offer (the
"Bona Fide Offer") to purchase for cash any of SMSC's Company Common Stock,
("Offered Stock"), other than in a public offering, which Bona Fide Offer
otherwise shall be in accordance with this Agreement and which SMSC shall
desire to accept, SMSC shall give written notice (the "Notice") to such effect
to Company and the other Stockholders. The Notice shall also set forth the name
and address of the Offeror, the price and other terms of the Bona Fide Offer,
and shall contain an offer (the "Notice Offer"), irrevocable during the Option
Period (as defined in Section 2.b) to Sell the Offered Shares to Company
at the price and on the other terms contained in the Bona Fide Offer
and pursuant to the other provisions of this Agreement. The Notice shall
be accompanied by a copy of the Bona Fide Offer. SMSC agrees reasonably to
consult with Company regarding the Bona Fide Offer.
b. Company shall have the option to accept the Notice Offer
with respect to all, but not less than all, of the Offered Stock, exercisable
by delivery to SMSC of a written notice of acceptance within 15 days after
delivery of the Notice ("Option Period"). If Company shall fail to exercise
its option, SMSC shall be entitled, for a period of ten days following the
expiration of the Option Period, to close the sale of all, but not less
than all, of the Offered Stock to the Offeror on the terms and conditions
set forth in the Bona Fide Offer.
c. Without limiting the generality of the foregoing
provisions of this Section 2, SMSC agrees that it shall not, without the
prior written consent of Company (to be given or withheld at Company's
discretion), sell its Company Common Stock to any person or entity that is a
competitor or Company.
3. LEGEND. SMSC agrees that any certificate evidencing its
ownership of Company stock shall bear a legend to the effect that such stock is
subject to this Agreement.
4. Registration of SMSC Company Stock. SMSC and each of up to
two direct transferees of SMSC's Company stock shall have the right to sell its
Company stock in any public offering by Company of any of its capital stock on
terms substantially equivalent to those of the Company stockholder having the
most favorable (as determined by SMSC in its sole discretion) registration
rights applicable to such public offering. IOTA represents and warrants to SMSC
that IOTA is not bound by, and IOTA covenants with SMSC that IOTA will not
grant to any person, registration rights preferential to those granted in the
preceding sentence.
5. Miscellaneous.
a. All notices, requests and other communications hereunder
shall be in writing and shall be delivered by courier or other means of
personal service (including by means of a nationally recognized courier
service or a professional messenger service), or sent by telex or telecopy
or mailed first class, postage prepaid, by certified mail, return receipt
requested, in all cases, addressed to:
SMSC:
Standard Microsystems Corporation
80 Arkay Drive
P.O. Box 18047
Hauppauge, New York 11788-8847
Telecopy: (516) 273-5550
Attention: Steven J. Bilodeau, President and
Chief Executive Officer
With copies to:
Standard Microsystems Corporation
80 Arkay Drive
P.O. Box 18047
Hauppauge, New York 11788-8847
Telecopy: (516) 273-5550
Attention: George W. Houseweart, Senior Vice President
and General Counsel
<PAGE>
Loeb & Loeb LLP
345 Park Avenue
New York, New York 10154
Telecopy: (212) 407-4990
Attention: David C. Fischer, Esq.
Company:
Inertia Optical Technology Applications, Inc.
24 New England Executive Park
Burlington, Massachusetts 01803
Telecopy: (781) 229-6794
Attention: Nicholas E. Ortyl III
With a copy to:
Morrison & Foerster LLP
1290 Avenue of the Americas
New York, New York 10104
Telecopy: (212) 468-7900
Attention: Charles B. Friedman, Esq.
Any Stockholder other than SMSC:
The address(s) specified on the signature page hereof.
All notices, requests and other communications shall be deemed given on the
date of actual receipt or delivery as evidenced by written receipt,
acknowledgement or other evidence of actual receipt or delivery to the
addressee. In case of service by telecopy, a confirmation copy of such notice
shall be sent, on the date notice is given, by certified mail as set forth
above. Either party hereto may from time to time by notice in writing served as
set forth above designate a different address or a different or additional
person to which all such notices or communications thereafter are to be sent or
given.
b. This Agreement sets forth the parties' entire
agreement with respect to the subject matter hereof, superseding all prior
or contemporaneous agreements, understandings, or discussions, other than
the March 10 Agreement, which except as expressly provided in Section 1(b)
hereof, shall remain in full force and effect.
c. This agreement may be amended, and any provision hereof
may be waived or otherwise modified, only by a writing signed by each party.
d. This agreement shall be governed by the laws of the state
of Delaware.
e. Each party consents to specific performance of this
Agreement.
f. The losing party in any court proceeding hereunder shall
pay to the prevailing party the prevailing party's legal fees and expenses
incurred in connection with such proceeding.
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first written above.
STANDARD MICROSYSTEMS
INCORPORATED
By:
Steven J. Bilodeau
President and Chief Executive Officer
INERTIA OPTICAL TECHNOLOGY
APPLICATIONS, INC.
By:
Nicholas E. Ortyl III
President and Chief Executive Officer
Donald Weiss:
Address:
Nicholas E. Ortyl
Address:
Stanley Young
Address:
<PAGE>
YOUNG TECHNOLOGY FUND, L.L.P.
By:
Name:
Title:
Margot Muller
Address:
Henrik Muller
Address:
NEWLIGHT ASSOCIATES, L.P.
By: Newlight Partners, LLC
By:
NEWLIGHT ASSOCIATES (BVI), L.P.
By: Newlight Partners, Ltd.
By:
TRANSITION SERVICES AGREEMENT
by and between
STANDARD MICROSYSTEMS CORPORATION
and
INERTIA OPTICAL TECHNOLOGY APPLICATIONS, INC.
Dated as of: June 1, 1999
<PAGE>
TABLE OF CONTENTS
ARTICLE 1. SERVICES
ARTICLE 2. FEES
ARTICLE 3. CONFIDENTIALITY
ARTICLE 4. TERMINATION
4.01. For Default
4.02. For Convenience
4.03. Effect of Termination
ARTICLE 5. WARRANTY AND LIABILITY OF SMSC
5.01. Disclaimer of Warranty; Standard for
Performance
5.02. Force Majeure
5.03. Limitation of Liability
ARTICLE 6. MISCELLANEOUS PROVISIONS
6.01. Waiver, Remedies Cumulative
6.02. Invalid Provisions
6.03. Headings
6.04. Exhibits
6.05. Notices
6.06. Relationship
6.07. Governing Law
6.08. Covenant of Further Assurances
6.09. Entire Understanding
6.10. Assignment
6.11. Amendments
6.12. Survival
6.13. Counterparts
6.14. Third Party Beneficiaries
6.15. Consents, Approvals and Requests
EXHIBIT A - Services (other than Information Technology Services)
EXHIBIT B - Information Technology Services
EXHIBIT C - Fees
<PAGE>
TRANSITION SERVICES AGREEMENT (this "Agreement"), dated as of
June 1, 1999 (the "Agreement Date") by and between STANDARD MICROSYSTEMS
CORPORATION, a Delaware corporation ("SMSC") and INERTIA OPTICAL TECHNOLOGY
APPLICATIONS, INC., a Delaware corporation (the "Company").
WITNESSETH:
WHEREAS, SMSC and the Company are parties to an Asset
Purchase Agreement, dated as of May __, 1999 (the "Asset Purchase Agreement"),
pursuant to which, among other things, SMSC has agreed to transfer to the
Company certain of the assets relating to the operation of its FBU Business and
the Company has agreed to assume certain of the liabilities relating to that
Business (capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Asset Purchase Agreement);
WHEREAS, in order to facilitate the orderly continuation of
the FBU Business for a transitional period after the Closing, SMSC has agreed
to provide certain administrative and other transition services to the Company;
NOW, THEREFORE, in consideration of the agreements of SMSC
and the Company set forth below, SMSC and the Company agree as follows:
ARTICLE 1. SERVICES.
SMSC shall provide to the Company the administrative and
other transition services described in Exhibit A for the time period(s)
indicated in Exhibit A, and the information technology services described in
Exhibit B for the time period(s) indicated in Exhibit A (collectively, the
"Services"; each a "Service").
ARTICLE 2. FEES.
(a) The Company shall pay to SMSC the fees set forth in
Exhibit C (the "Fees") in respect of the Services according to the payment
schedule set forth in Exhibit C.
(b) Not later than the close of business on the tenth day of
every month (or if such day is not a business day, the first business day
thereafter) in which Services were provided pursuant to this Agreement in the
previous month, SMSC shall deliver an invoice to the Company setting forth the
Fees payable by the Company for the Services provided by SMSC in such previous
month (the "Fee Invoice"). The Company shall pay in full the Fees set forth in
the Fee Invoice by wire transfer of immediately available funds to an account
designated in writing by SMSC not later than the close of business on the
ninetieth (90th) day following the date on which the Fee Invoice is received by
the Company; provided, however, that in the event the Company disputes any Fees
set forth on the Fee Invoice, the Company may withhold payment of any disputed
amounts pending resolution of the dispute and shall pay the disputed amounts in
the foregoing manner not later than the close of business on the fifth business
day following the date on which the dispute is resolved.
<PAGE>
ARTICLE 3. CONFIDENTIALITY.
All confidential or proprietary information and documentation
("the Confidential Information") relating to either party shall be held in
strict confidence by the other party (including its Affiliates). Neither party
shall disclose, publish, release, transfer or otherwise make available
Confidential Information of the other party in any form to, or for the use or
benefit of, any person or entity without the other party's prior approval. The
obligations in this Article 3 shall not (a) restrict any disclosure by either
party if it is compelled to disclose pursuant to any applicable Law, or by
order of any Authority (provided that the disclosing party shall give prompt
notice to the non-disclosing party of such order) and (b) apply with respect to
information that (i) is independently developed by the other party without
reference to any Confidential Information, (ii) becomes part of the public
domain (other than through unauthorized disclosure), (iii) is later acquired by
the receiving party from another source if the receiving party is not aware
that such source is under an obligation to the other party hereto to keep such
documents and information confidential or (iv) previously known by the party
receiving such documents or information.
ARTICLE 4. TERMINATION.
4.01. FOR DEFAULT. In the event that either party fails to
perform, in any material respect, any of its duties or obligations pursuant to
this Agreement and such failure is not cured within 30 days after written
notice to such party specifying the nature of such failure, the other party may
terminate this Agreement immediately upon further notice to the defaulting
party.
4.02. FOR CONVENIENCE. Either party may terminate this
Agreement in respect of any or all of the Services as set forth in the Exhibits
(including with respect to the notice provisions set forth therein).
4.03. EFFECT OF TERMINATION. Upon (a) the termination of this
Agreement pursuant to Section 4.01 or (b) the termination of all of the
Services pursuant to Section 4.02, all Fees owed by the Company to SMSC for
Services provided through the date of such expiration or termination shall be
paid promptly after the date of such termination.
<PAGE>
ARTICLE 5. WARRANTY AND LIABILITY OF SMSC.
5.01. DISCLAIMER OF WARRANTY; STANDARD FOR PERFORMANCE. SMSC
MAKES NO WARRANTY REGARDING THE MERCHANTABILITY OF THE SERVICES OR THE FITNESS
OF THE SERVICES FOR ANY PARTICULAR PURPOSE. SMSC shall provide the Services in
substantially the same manner as the activities constituting the Services
heretofore were conducted in the ordinary course for SMSC's own account and
shall use the same degree of care in providing Services to the Company as SMSC
hereafter shall use in the ordinary course in conducting the same or comparable
activities for its own account. SMSC shall have no liability to the Company or
any other person with respect to provision of or failure to provide any of the
Services so long as SMSC performs its obligations hereunder in conformity with
the standards set forth in the preceding sentence.
5.02. FORCE MAJEURE. In no event shall SMSC have any
liability under this Transition Services Agreement for any failure to provide
or delay, interruption, or error in providing any of the Services that results
directly or indirectly from the following circumstances (or similar force
majeure events): inclement weather, fire, flood, earthquake, or other
catastrophe, strike, civil disturbance or war or failure of any of SMSC's
vendors to deliver any goods or render any services.
5.03. LIMITATION OF LIABILITY. IN NO EVENT SHALL SMSC BE
LIABLE UNDER THIS TRANSACTION SERVICES AGREEMENT FOR SPECIAL, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES. SMSC's liability for any failure
to provide or delay, interruption, or error in providing any Service shall not
exceed the fair market value of the Service (or portion thereof) in question.
ARTICLE 6. MISCELLANEOUS PROVISIONS.
6.01. WAIVER, REMEDIES CUMULATIVE. Any term or condition of
this Agreement may be waived at any time by the party that is entitled to the
benefit thereof, but no such waiver shall be effective unless set forth in a
written instrument duly executed by or on behalf of the party waiving such term
or condition. No waiver by any party of any term or condition of this
Agreement, in any one or more instances, shall be deemed to be or construed as
a waiver of the same or any other term or condition of this Agreement on any
future occasion. All remedies, either under this Agreement or by Law or
otherwise afforded, will be cumulative and not alternative.
6.02. INVALID PROVISIONS. If any provision of this Agreement
is held to be illegal, invalid or unenforceable under any present or future
Law, and if the rights or obligations of any party hereto under this Agreement
will not be materially and adversely affected thereby, (a) such provision will
be fully severable, (b) this Agreement will be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part
hereof and (c) the remaining provisions of this Agreement will remain in full
force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom.
6.03. HEADINGS. The headings used in this Agreement have been
inserted for convenience of reference only and do not define, limit or
otherwise in any way affect the provisions hereof.
6.04. EXHIBITS. The Exhibits attached hereto are incorporated
herein by reference as an integral part of this Agreement. In the event of any
inconsistency between the terms contained in the Exhibits and the terms
contained herein, the terms in the Exhibits shall govern.
6.05. NOTICES. Except as otherwise specified in this
Agreement, all notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally
or by facsimile transmission or mailed (first class postage prepaid) to the
parties at the following addresses or facsimile numbers:
SMSC:
Standard Microsystems Corporation
80 Arkay Drive, P.O. Box 18047
Hauppauge, New York 11788-8847
Telecopy: (516) 273-5550
Attention: Steven J. Bilodeau, President and
Chief Executive Officer
With copies to:
Standard Microsystems Corporation
80 Arkay Drive, P.O. Box 18047
Hauppauge, New York 11788-8847
Telecopy: (516) 273-5550
Attention: George W. Houseweart, Senior Vice
President and General Counsel
Loeb & Loeb LLP
345 Park Avenue
New York, New York 10154
Telecopy: (212) 407-4990
Attention: David C. Fischer, Esq.
IOTA:
Inertia Optical Technology Applications, Inc.
24 New England Executive Park
Burlington, Massachusetts 01803
Telecopy: (781) 229-6794
Attention: Nicholas E. Ortyl III, President and
Chief Executive Officer
<PAGE>
With a copy to:
Morrison & Foerster LLP
1290 Avenue of the Americas
New York, New York 10104
Telecopy: (212) 468-7900
Attention: Charles B. Friedman, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other Person to whom
a copy of such notice, request or other communication is to be delivered
pursuant to this Section). Any party from time to time may change its address,
facsimile number or other information for the purpose of notices to that party
by giving notice specifying such change to the other parties hereto.
6.06. RELATIONSHIP. The performance by SMSC of its duties and
obligations under this Agreement shall be that of an independent contractor and
nothing herein contained shall create or imply an agency relationship between
the parties, nor shall this Agreement be deemed to constitute a joint venture
or partnership between the parties.
6.07. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the Laws of the State of New York applicable to a
contract executed and performed therein, without giving effect to the conflicts
of laws principles thereof.
6.08. COVENANT OF FURTHER ASSURANCES. The parties covenant
and agree that, subsequent to the execution and delivery of this Agreement and
without any additional consideration, each of the parties will execute and
deliver, or cause appropriate Affiliates to execute and deliver, any further
legal instruments and perform any acts which are or may become reasonably
necessary to effectuate this Agreement.
6.09. ENTIRE UNDERSTANDING. This Agreement represents the
entire understanding of the parties with respect to the Services and supersedes
all previous writings, correspondence and memoranda with respect thereto, and
no representations, warranties, agreements or covenants, express or implied, of
any kind or character whatsoever with respect to such subject matter have been
made by either party to the other, except as herein expressly set forth.
6.10. ASSIGNMENT. Neither this Agreement nor any right,
interest or obligation hereunder may be assigned by any party hereto without
the prior written consent of the other party hereto and any attempt to do so
will be void. Subject to the restrictions on assignment set forth in the
immediately preceding sentence, this Agreement shall be binding upon and inure
to the benefit of and be enforceable against the parties hereto and their
respective successors and assigns.
<PAGE>
6.11. AMENDMENTS. This Agreement may be amended,
supplemented or modified only by a written amendment executed by both parties
hereto.
6.12. SURVIVAL. The provisions of Article 3, Section 4.03,
Article 5, Section 6.07 and this Section 6.12, shall survive the expiration or
the termination of this Agreement.
6.13. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
6.14. THIRD PARTY BENEFICIARIES. The terms and provisions of
this Agreement are intended solely for the benefit of each party hereto and
their respective successors or permitted assigns, and it is not the intention
of the parties hereto to confer third-party beneficiary rights upon any other
Person.
6.15. CONSENTS, APPROVALS AND REQUESTS. All consents and
approvals to be given by either party under this Agreement shall not be
unreasonably withheld or delayed and all requests made by a party under this
Agreement shall be reasonable.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers as of the date first
above written.
STANDARD MICROSYSTEMS CORPORATION
By: _______________________________________
Steven J. Bilodeau
President and Chief Executive Officer
and
INERTIA OPTICAL TECHNOLOGY APPLICATIONS, INC.
By: ________________________________________
Nicholas E. Ortyl III
President and Chief Executive Officer
<PAGE>
EXHIBIT A - Services (other than Information
Technology Services)
EXHIBIT B - Information Technology Services
EXHIBIT C - Fees
