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If Lender requests compensation under this Section 2.8.1 , Lender shall, if requested by notice by Borrower to Lender, furnish to Borrower a statement setting forth the basis for requesting such compensation and the method for determining the amount thereof. | increased costs | Given the provision, provide with the correct label for the given provision |
Notwithstanding anything (including any provision of the Agreement or Plan) to the contrary, if the Director becomes a specified employee (as defined in Section 409A of the Code), to the extent required to comply with Section 409A of the Code, payment to the Director of any deferred compensation subject to Section 409A of the Code on account of a Separation from Service (within the meaning of Section 409A of the Code) shall, in accordance with Treasury Regulation Section 1.409A-3(i)(2), be made to the Director on the earlier of (i) the Director’s death or (ii) the first business day (or within 30 days after such first business day) that is more than six months after the date of Separation from Service. | specified employees | Given the provision, provide with the correct label for the given provision |
Except as otherwise expressly provided herein, no failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder, or otherwise available in respect hereof at Law or in equity, shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof, or the exercise of any other right, power or remedy. | waivers | Given the provision, provide with the correct label for the given provision |
This Guaranty shall terminate upon the earlier of (i) the date that the Debt has been indefeasibly paid in full, and there has expired the maximum possible period thereafter during which any payment made by Borrower or others to Lender with respect to the Loan could be deemed a preference under the Bankruptcy Code and (ii) the date when the Remaining Unfunded Obligations have been reduced to zero. | terminations | Given the provision, provide with the correct label for the given provision |
Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon demand each Agent-Related Person (to the extent not reimbursed by or on behalf of any Loan Party and without limiting the obligation of any Loan Party to do so), pro rata, and hold harmless each Agent-Related Person from and against any and all Indemnified Liabilities incurred by it; provided that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities resulting from such Agent-Related Person’s own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction; provided that no action taken in accordance with the directions of the Required Lenders (or such other number or percentage of the Lenders as shall be required by the Loan Documents) shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 9.07. | indemnification of agents | Given the provision, provide with the correct label for the given provision |
Regardless of any action the Company or any Subsidiary employing the Participant (the “Employer”) takes with respect to any or all federal, state, local or foreign income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax related items (“Tax Related Items”), the Participant acknowledges that the ultimate liability for all Tax Related Items associated with the RSUs is and remains the Participant’s responsibility and may exceed the amount actually withheld by the Company or the Employer and that the Company and the Employer (i) make no representations or undertakings regarding the treatment of any Tax Related Items in connection with any aspect of the RSUs, including, but not limited to, the grant or vesting of the RSUs, the delivery of the Shares, the subsequent sale of Shares acquired at vesting and the receipt of any dividends; and (ii) do not commit to structure the terms of the grant or any aspect of the RSUs to reduce or eliminate the Participant’s liability for Tax Related Items. | withholding taxes | Given the provision, provide with the correct label for the given provision |
If either party shall commence an action or proceeding to enforce any provisions of the Transaction Documents, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding. | governing laws | Given the provision, provide with the correct label for the given provision |
Align shall have an ongoing Right of First Refusal (“ ROFR ”) to lease or purchase any portion of the Building 2 (adjacent building to the Building 1). | right of first refusal | Given the provision, provide with the correct label for the given provision |
Further, the Company shall not make any payment of principal or interest on the Notes in amounts which are disproportionate to the respective principal amounts outstanding on the Notes at any applicable time. | equal treatment of purchasers | Given the provision, provide with the correct label for the given provision |
The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Fee Letter. | headings | Given the provision, provide with the correct label for the given provision |
Thereafter during the term of the Loan, each Interest Period shall commence on the fifteenth (15 th ) day of the calendar month preceding the calendar month in which the related Payment Date occurs and shall end on and include the fourteenth (14 th ) day of the calendar month in which the related Payment Date occurs. | payments generally | Given the provision, provide with the correct label for the given provision |
This Plan shall be deemed to be made in Michigan, and, to the extent not preempted by ERISA or other federal law, the validity, interpretation, construction and performance of this plan in all respects shall be governed by the laws of Michigan without regard to its principles of conflicts of law. | choice of laws | Given the provision, provide with the correct label for the given provision |
This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. | counterparts | Given the provision, provide with the correct label for the given provision |
As soon as reasonably practicable following the execution of the Merger Agreement, the Equity Investor shall use reasonable best efforts, in collaboration with Parent, to syndicate at least $600 million of the Equity Commitment by obtaining commitments from one or more entities reasonably similar to the Other Equity Investors with respect to their creditworthiness; provided that (a) each such entity shall execute an Equity Commitment Letter and a Limited Guaranty similar in all material respects to (with terms not less favorable in any material respect to Parent or the Company than) those executed by the Equity Investor, (b) Equity Investor shall remain liable as a primary obligor under the Equity Commitment to the extent any such entity shall fail to perform any obligation that it has assumed pursuant to the transactions contemplated by this Section 4, and (c) such transaction with such entity would not be reasonably expected to prevent, materially delay or materially impair the ability of any of the parties to the Merger Agreement to consummate the Merger or the other transactions contemplated by the Merger Agreement. | commitment reductions | Given the provision, provide with the correct label for the given provision |
Neither the Company nor any Subsidiary is obligated by or as a result of the Plan or this Agreement to continue the Optionee in a service relationship with the Company or any Subsidiary and neither the Plan nor this Agreement shall interfere in any way with the right of the Company or any Subsidiary to terminate the service relationship of the Optionee with the Company or any Subsidiary at any time. | no obligation to continue service | Given the provision, provide with the correct label for the given provision |
A Participant or his authorized representative may file a claim for benefits under the Plan. | filing a claim | Given the provision, provide with the correct label for the given provision |
TTC will be responsible to reimburse Employee for eighty percent (80%) of the Loss, not to exceed five hundred thousand dollars ($500,000). | payments | Given the provision, provide with the correct label for the given provision |
As soon as practicable after the date as of which the applicable tranche vests (but in no event later than March 15 of the year following such date), a number of shares of Stock represented by the PSUs that have become vested with respect to such tranche shall be issued to the Executive, subject to any withholding for taxes; provided however , that in the event of a Change in Control, PSUs shall either ( i ) be paid in shares of Stock or (ii) be cancelled in exchange for an immediate payment in cash of an amount based upon the Change in Control Price, in the discretion of the Committee. | payments | Given the provision, provide with the correct label for the given provision |
Performance Awards may be granted in the form of a cash bonus or Performance Shares or Performance Units. | performance awards | Given the provision, provide with the correct label for the given provision |
Any of the foregoing shall not, in any manner, affect the terms hereof or impair the obligations of the Second Lien Secured Parties hereunder. | waivers | Given the provision, provide with the correct label for the given provision |
The Borrower is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of any extension of credit hereunder will be used to buy or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. | use of credit | Given the provision, provide with the correct label for the given provision |
The Participant hereby acknowledges and agrees that the Bank makes no representations or warranties regarding the tax treatment or tax consequences of any compensation, benefits or other payments under the Plan, or under any statute, or regulation or guidance thereunder, or under any successor statute, regulation and guidance thereunder. | taxes | Given the provision, provide with the correct label for the given provision |
In determining whether the interest contracted for, charged or received by Administrative Agent or any Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate and spread, in equal or unequal parts, the total amount of interest throughout the contemplated term of the Obligations. | usury | Given the provision, provide with the correct label for the given provision |
The Recipient acknowledges and agrees that the Restricted Stock shall vest only through continued service to the Company as a director or, through a Change of Control of the Company as defined in Section 9. | no guarantee of continued service | Given the provision, provide with the correct label for the given provision |
Executive shall present from time to time itemized accounts and receipts of any such expenses as required by Employer, subject to any limits of company policy and the rules and regulations of the Internal Revenue Service, including the Internal Revenue Code, (referred to throughout this Agreement as “IRC” or the “Code”). | expenses | Given the provision, provide with the correct label for the given provision |
To the fullest extent permitted by applicable law, no Indemnitee or any Loan Party shall have any liability, and none of such parties hereto shall assert, and each hereby waives, any claim against any other party hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof; provided that the foregoing shall not in any way limit the indemnification and expense reimbursement obligations of the Loan Parties under this Agreement. | waiver of consequential damages | Given the provision, provide with the correct label for the given provision |
Each of Buyer and Parent is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada, with all requisite power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted and is duly licensed, authorized and qualified to do business and in good standing in the State of Nevada, except where the failure to be so qualified or be so licensed would not have a material adverse effect on the ability of Buyer or Parent to consummate the transactions contemplated by, and discharge their respective obligations under, this Agreement and the Ancillary Documents to which Buyer or Parent, as applicable, is a party (a “ Buyer Material Adverse Effect ”). | organizations | Given the provision, provide with the correct label for the given provision |
You understand that the Company is under no obligation to register or qualify the Common Stock with any state, federal or foreign securities commission or to seek approval or clearance from any governmental authority for the issuance or sale of the Shares. | compliance with laws and regulations | Given the provision, provide with the correct label for the given provision |
Without limiting the generality of the foregoing, and in the case of Licenses, except for restrictions that are unenforceable under Division 9 of the UCC, Borrower has the right, to the extent required to operate Borrower’s business, to freely transfer, license (except as restricted by (i) intellectual property licenses existing on the Closing Date and (ii) Permitted Intellectual Property Licenses) or assign Intellectual Property without condition, restriction or payment of any kind (other than license payments in the ordinary course of business) to any third party, and Borrower owns or has the right to use, pursuant to valid licenses, all software development tools, library functions, compilers and all other third-party software and other items that are used in the design, development, promotion, sale, license, manufacture, import, export, use or distribution of Borrower Products. | intellectual property | Given the provision, provide with the correct label for the given provision |
All of such financial statements (including in each case the related schedules and notes) fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the respective dates specified in such Schedule and the consolidated results of their operations and cash flows for the respective periods so specified and have been prepared in accordance with GAAP consistently applied throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year‑end adjustments). | material liabilities | Given the provision, provide with the correct label for the given provision |
The waiver and release are part of the consideration for issuance of the Notes. | no recourse against others | Given the provision, provide with the correct label for the given provision |
Tenant shall protect, indemnify and hold harmless Landlord and each Facility Mortgagee, their trustees, officers, agents, employees and beneficiaries, and any of their respective successors or assigns with respect to this Agreement (collectively, the “ Indemnitees ” and, individually, an “ Indemnitee ”) for, from and against any and all debts, liens, claims, causes of action, administrative orders or notices, costs, fines, penalties or expenses (including, without limitation, reasonable attorney’s fees and expenses) imposed upon, incurred by or asserted against any Indemnitee resulting from, either directly or indirectly, the presence in, upon or under the soil or ground water of any Property or any properties surrounding such Property of any Hazardous Substances in violation of any Applicable Laws, except to the extent the same arise from the acts or omissions of Landlord or any other Indemnitee or during any period that Landlord or a Person designated by Landlord (other than Tenant) is in possession of such Property from and after the Commencement Date for such Property. | indemnitees | Given the provision, provide with the correct label for the given provision |
The Borrower may make a maximum of three such requests. | borrower requests | Given the provision, provide with the correct label for the given provision |
All amounts due under this Section shall be payable not later than ten (10) Business Days after written demand therefor. | payments | Given the provision, provide with the correct label for the given provision |
In addition, any Lender, if required by applicable law or as reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. | status of lenders | Given the provision, provide with the correct label for the given provision |
Context:
Exhibit 10.12.1
Confidential Execution Version
[***] Certain information in this document has been excluded because it both (i) is not material and (ii) would likely cause competitive harm to the registrant if publicly disclosed.
JOINT VENTURE AGREEMENT
by and among
Aizu Fujitsu Semiconductor Limited
Fujitsu Semiconductor Limited
and
Transphorm, Inc.
Date
May 23, 2017
Confidential Execution Version
TABLE OF CONTENTS
Page Article I Definitions 1
Article II Representations and Warranties of the Parties 4
2.1 Representations and Warranties of AFSL and FSL 4 2.2 Representations and Warranties of TPH-A and TPH 6
Article III Operation of the Company 7
3.1 Activities 7 3.2 Cash Requirement of the Company 7 3.3 Business Plan 7 3.4 Independent Entity 8
Article IV Management of the Company 8
4.1 Board 8 4.2 Composition of the Board 8 4.3 Board Observers 9 4.4 Meetings; Quorum 9 4.5 Personnel; Representative Director 9 4.6 Statutory Auditors 9 4.7 Actions Requiring Unanimous Board Approval 9 4.8 Agreement Regarding Board 12 4.9 Procedure in the Event of Failure to Agree 12
Article V Covenants 13
5.1 Capital Accounts 13 5.2 Provision of Support Services 13 5.3 GaN Equipment 13 5.4 Ancillary Agreements 13 5.5 Other Existing Agreements 14 5.6 Ownership of IP 14 5.7 Sufficiency of IP 14 5.8 Cooperation 14 5.9 Delivery of Financial Statements; Inspection Rights 14 5.10 TPH' s Stockholder Approval 15
Article VI Rights and Obligations of FSL, TPH AND TPH-A 15
6.1 FSL 15 6.2 TPH 15 6.3 TPH-A 15
Article VII Term and Termination 15
7.1 Termination Prior to the Effective Date 15
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TABLE OF CONTENTS (continued)
Page 7.2 Effect of Termination Prior to the Effective Date 16 7.3 Termination After the Effective Date 16 7.4 Dissolution and Winding-up 17 7.5 Shareholder Calls Upon Breach 17 7.6 Shareholder Calls Upon Bankruptcy After the Effective Date 18 7.7 Survival of Provisions After the Effective Date 19 7.8 Cooperation 19
Article VIII Transfer Restrictions 19
8.1 Restrictions on Transfers 19 8.2 Permissible Transfers 19
Article IX Put Option and Call Option 19
9.1 AFSL's Right to Require the Purchase of the Shares by TPH or TPH-A 19 9.2 TPH-A's Right to Require the Purchase of the Shares from FSL or AFSL 20 9.3 Conditions to Put Option or Call Option Closing 21 9.4 Other Obligations 22
Article X Treatment of Employees 22
10.1 New Terms and Conditions for Employment 22 10.2 Representations and Warranties Regarding Employment 22
Article XI Miscellaneous 23
11.1 No Partnership 23 11.2 Limitations on Parties' Authority 23 11.3 Indemnification 23 11.4 Confidentiality 24 11.5 Access to Company Information After the Put Closing Date or the Call Closing Date 24 11.6 Expenses 24 11.7 Notices 25 11.8 Successors and Assigns 26 11.9 Waiver 26 11.10 Announcements 26 11.11 Entire Agreement 26 11.12 Amendments 26 11.13 Limitations on Rights of Third Persons 26 11.14 Governing Law; Language 26 11.15 Resolution of Disputes 26 11.16 Severability 27 11.17 Execution in Counterparts 28 11.18 Titles and Headings 28 11.19 Counsel only to TPH and TPH-A 28
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JOINT VENTURE AGREEMENT
THIS JOINT VENTURE AGREEMENT ("Agreement") is made as of this 23rd day of May, 2017 by and among Aizu Fujitsu Semiconductor Limited ("AFSL"), a kabushiki kaisha incorporated in Japan, with an address at No.4 Kogyo Danchi, Monden-Machi, Aizu Wakamatsu, Fukushima, Japan, Fujitsu Semiconductor Limited ("FSL"), a kabushiki kaisha incorporated in Japan, with an address at Shin-Yokohama Chuo Building, 2-100-45, Shin-Yokohama, Kohoku-Ku, Yokohama, Kanagawa, Japan, as a one hundred percent (100%) shareholder of AFSL, and Transphorm, Inc. ("TPH"), a corporation incorporated in Delaware, with an address at 75 Castilian Drive, Goleta, California 93117, U.S.A. (collectively referred to as the "Parties" and individually, a "Party").
W I T N E S S E T H:
WHEREAS, Aizu Fujitsu Semiconductor Wafer Solution Limited ("AFSW" or the "Company"), a kabushiki kaisha incorporated in Japan, with an address at No.3 Kogyo Danchi, Monden-Machi, Aizu Wakamatsu, Fukushima, Japan has been engaged with the business of 150mm wafer foundry services and other services related thereto (the "Business").
WHEREAS, prior to the Effective Date (as defined below), TPH intends to incorporate a new wholly-owned subsidiary ("TPH-A") and make it a Party hereto.
WHEREAS, with the consent of the Parties and the board of directors of the Company, AFSL has entered into the Shares Purchase Agreement dated May 23, 2017 (the "SPA"), by and among the Parties hereof, pursuant to which AFSL will sell and transfer [***] shares of the issued and outstanding shares in the Company (representing [***] of the issued and outstanding shares in the Company) to TPH-A; and
WHEREAS, the Parties intend to regulate and agree upon the organization and operation of the Company and each Party's rights and obligations and other matters regarding the Company; and
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
ARTICLE I DEFINITIONS
As used in this Agreement, the following terms shall have the following meanings:
1.1 "Affiliate" of AFSL, FSL, TPH-A or TPH, as the case may be, means a Person or group of Persons: (a) which owns or Controls, directly or indirectly, AFSL, FSL, TPH-A or TPH; (b) which is owned or Controlled, directly or indirectly, by AFSL, FSL, TPH-A or TPH; or (c) which is owned or Controlled, directly or indirectly, by any Person described in Section 1.1(a) or (b).
1.2 "AFSW Secondment Agreement" has the meaning ascribed to that term in the SPA.
Confidential Execution Version
1.3 "Amended Process Development Agreement" has the meaning ascribed to that term in Section 2.1.7.
1.4 "Ancillary Agreements" means the SPA, the AFSW Secondment Agreement, the TPH-J Secondment Agreement, the Wafer Supply Agreement, the Joinder Agreement, the Process Development Amendment and the Services Agreement Amendment.
1.6 "Board" means the board of directors of the Company.
1.7 "Business" has the meaning ascribed to that term in the Recitals.
1.8 "Business Day" means any day other than a Saturday, Sunday or public holiday under the laws of Japan, or any other day on which banking institutions are authorized to close in Tokyo, Japan or in New York, New York, USA.
1.9 "Business Plan" has the meaning ascribed to that term in Section 3.3.1.
1.10 "Call Shares" means any and all Shares held by AFSL or FSL or any other Person Controlled by AFSL or FSL, as the case may be, on the date of the Call Exercise Notice.
1.11 "Change of Control Transaction" means either (a) the acquisition of the Company by an entity not affiliated with FSL or TPH by means of any transaction or series of related transactions (including, without limitation, any stock acquisition, merger, demerger or share exchange but excluding any sale of stock for capital raising purposes) other than a transaction or series of related transactions in which the holders of the voting securities of the Company outstanding immediately prior to such transaction or series of related transactions retain, immediately after such transaction or series of related transactions, as a result of shares in the Company held by such holders prior to such transaction or series of related transactions, at least a majority of the total voting power represented by the outstanding voting securities of the Company or such other surviving or resulting entity (or if the Company or such other surviving or resulting entity is a wholly-owned Subsidiary (hereinafter defined) immediately following such acquisition, its parent); or (b) a sale, lease, transfer, exclusive license or other disposition of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole by means of any transaction or series of related transactions with a party other than FSL or its Affiliates or TPH or its Affiliates, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned Subsidiary of the Company.
1.12 "Company Assets" has the meaning ascribed to that term in the SPA.
1.13 "Control" means the power, right or authority to direct or cause the direction of the management or policies of a Person, or to elect a majority of the board of directors or similar governing body of a Person, whether through the ownership of securities or similar ownership interest, by contract or otherwise, and references to "change of control" include the transfer, disposition or relinquishment, whether directly or indirectly, of Control.
1.14 "Designated Individuals" has the meaning ascribed to that term in Section 4.9.
1.15 "Designated Nuclear Waste" has the meaning ascribed to that term in the SPA.
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1.16 "Director" has the meaning ascribed to that term in Section 4.2.
1.17 "Effective Date" means the date that the Initial Closing occurs.
1.18 "Encumbrance" has the meaning ascribed to that term in the SPA.
1.19 "Funded Work" has the meaning ascribed to that term in Section 2.1.7.
1.20 "GaN Equipment" has the meaning ascribed to that term in Section 5.3.
1.21 "GaN Wafers" has the meaning ascribed to that term in the Amended Process Development Agreement.
1.22 "Governmental Authority" means any government, state (or any subunit thereof), political subdivision or regulatory authority, whether domestic, foreign or multinational, or any agency, authority, bureau, commission, department, or court of any government state, political subdivision or regulatory authority or similar body or instrumentality thereof, or any federal state, local, governmental, foreign or arbitral tribunal.
1.23 "Governmental Approvals" mean all consents, approvals, orders, permits or authorizations of, and registrations, declarations and filings with, and expirations of waiting periods imposed by, any court, legislative body, administrative agency, commission or other Governmental Authority and required in connection with the transactions contemplated herein.
1.24 "Harmful Materials" has the meaning ascribed to that term in the SPA.
1.25 "Initial Closing" has the meaning ascribed to that term in the SPA.
1.26 "Intellectual Property Rights" has the meaning ascribed to that term in the SPA.
1.27 "Japanese GAAP" means generally accepted accounting principles in Japan.
1.28 "Joinder Agreement" has the meaning ascribed to that term in Section 6.3.
1.29 "Joint Venture" means the operation of the Company pursuant to this Agreement from the Effective Date to the earliest to occur of: (i) the Put Closing Date (hereinafter defined), (ii) the Call Closing Date (hereinafter defined), or (iii) termination of this Agreement pursuant to Article VII hereof.
1.30 "Laws" means laws, statutes, ordinances, rules requirements, decrees, orders or regulations.
1.31 "Net Book Value" has the meaning ascribed to that term in the SPA.
1.32 "Option Starting Date" means February 1, 2020.
1.33 "Person" includes any individual, company, corporation, firm, partnership, joint venture, association, organization or trust in each case whether or not having a separate legal identity.
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1.34 "Pro Rata Ownership" means for any Shareholder, the ratio equal to the total number of Shares held by such Shareholder at any given time to the total number of outstanding Shares at such time.
1.35 "Process Development Amendment" has the meaning ascribed to that term in the SPA.
1.36 "Put Shares" means any and all Shares held by AFSL or FSL or any other Person Controlled by AFSL or FSL, as the case may be, on the date of the Put Exercise Notice.
1.37 "Sale Shares" has the meaning ascribed to that term in the SPA.
1.38 "Section" means a section of this Agreement.
1.39 "Seller Disclosure Schedule" has the meaning ascribed to that term in the SPA.
1.40 "Services Agreement Amendment" has the meaning ascribed to that term in the SPA.
1.41 "Shareholder" means each Person that holds Shares.
1.42 "Shares" means the shares of authorized and outstanding capital of the Company.
1.43 "Shares Purchase Price" has the meaning ascribed to that term in the SPA.
1.44 "SPA" has the meaning ascribed to that term in the Recitals.
1.45 "Subsidiary" means a Person in which a Party hereto beneficially owns at least fifty percent (50%) of the equity interest or voting power of such Person.
1.46 "Tax" has the meaning ascribed to that term in the SPA.
1.47 "Tax Return" has the meaning ascribed to that term in the SPA.
1.48 "TPH-J" means Transphorm Japan, Inc., a kabushiki kaisha incorporated in Japan, which is a wholly-owned Subsidiary of TPH.
1.49 "TPH-J Secondment Agreement" has the meaning ascribed to that term in the SPA.
1.50 "Wafer Supply Agreement" has the meaning ascribed to that term in the SPA.
Unless the context clearly requires otherwise, reference to the singular shall include the plural, reference to the plural shall include the singular and reference to a gender shall include all genders.
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE PARTIES
2.1 Representations and Warranties of AFSL and FSL. AFSL and FSL hereby represent and warrant to TPH-A and TPH as of the date hereof and as of the Effective Date as follows:
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2.1.1 Organization. Each of AFSL and FSL is a kabushiki kaisha, duly organized, validly existing and in good standing under the laws of Japan, and has the corporate power and authority to execute, deliver and perform its obligations under this Agreement.
2.1.2 Authorization; Execution and Delivery; Enforceability. All corporate action on the part of AFSL and FSL necessary for the authorization, execution and delivery of this Agreement and for the performance of all of their respective obligations hereunder has been taken. This Agreement has been duly executed and delivered by each of AFSL and FSL and constitutes a valid and legally binding obligation of each of them.
2.1.3 Government and Other Consents. No consent, authorization, license, permit, registration or approval of, or exemption or other action by, any Governmental Authority, or any other Person, is required in connection with AFSL's or FSL's execution, delivery and performance of this Agreement.
2.1.4 Effect of Agreement. Except as set forth in Section 3.2.3 of the Seller Disclosure Schedule, each of AFSL's and FSL's execution, delivery and performance of this Agreement will not (i) violate the Articles of Incorporation of either of them or any provision of Law, (ii) violate any judgment, order, writ, injunction or decree of any court applicable to AFSL, FSL or the Company, (iii) result in the breach of, give rise to a right of termination, cancellation or acceleration of any obligation with respect to (presently or with the giving of notice, the passage of time or both), or otherwise be in conflict with any term of, or affect the validity or enforceability of, any agreement or other commitment to which AFSL, FSL or the Company is a party and which would materially and adversely affect either of them or the Company, or (iv) result in the creation of any lien, pledge, mortgage, claim, charge or encumbrance upon any assets of AFSL, FSL or the Company.
2.1.5 Litigation. There are no actions, suits or proceedings pending or, to either AFSL's or FSL's knowledge, threatened, against AFSL or FSL before any Governmental Authority which question AFSL's or FSL's right to enter into or perform this Agreement, or which question the validity of this Agreement.
2.1.6 Equipment. FSL (as of the date hereof) and the Company (as of the Effective Date) have valid and perfected ownership of all GaN Equipment, free and clear of any Encumbrances. There are no third party agreements or licenses with respect to any software or firmware required to operate any GaN Equipment.
2.1.7 Sufficiency of IP. As of the Effective Date, the Intellectual Property Rights owned by the Company, together with the Intellectual Property Rights licensed to TPH pursuant to (i) that certain Process Technology Development Services Agreement, dated as of November 28, 2013, by and between FSL and TPH, and (ii) the Process Development Amendment ((i) and (ii) collectively, the "Amended Process Development Agreement"), shall constitute all Intellectual Property Rights owned by FSL, AFSL, Fujitsu Limited or their Affiliates that are or will be necessary for the continued operation of the Business for GaN Wafers following the Effective Date in the manner conducted as of the Effective Date. For the avoidance of doubt, the Business does not include the Company's performance of the GaN work commissioned and funded by Fujitsu Limited and its Affiliates
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(including Fujitsu Laboratories Ltd., but excluding FSL and AFSL) to the Company (such work, the "Funded Work").
2.2 Representations and Warranties of TPH-A and TPH.
2.2.1 TPH hereby represents and warrants to AFSL and FSL as of the date hereof and as of the Effective Date as follows:
(i) Organization. TPH is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware, and has the corporate power and authority to execute, deliver and perform its obligations under this Agreement.
(ii) Authorization; Execution and Delivery; Enforceability. All corporate action on the part of TPH necessary for the authorization, execution and delivery of this Agreement and for the performance of all its obligations hereunder has been taken. This Agreement has been duly executed and delivered by TPH and constitutes a valid and legally binding obligation of TPH.
(iii) Government and Other Consents. No consent, authorization, license, permit, registration or approval of, or exemption or other action by, any Governmental Authority, or any other Person, is required in connection with TPH's execution, delivery and performance of this Agreement.
(iv) Effect of Agreement. TPH's execution, delivery and performance of this Agreement will not (i) violate the Certificate of Incorporation or Bylaws of TPH, or any provision of Law, (ii) violate any judgment, order, writ, injunction or decree of any court applicable to TPH, (iii) result in the breach of, give rise to a right of termination, cancellation or acceleration of any obligation with respect to (presently or with the giving of notice, the passage of time or both), or otherwise be in conflict with any term of, or affect the validity or enforceability of, any agreement or other commitment to which TPH is a party and which would materially and adversely affect it or the Company, or (iv) result in the creation of any lien, pledge, mortgage, claim, charge or encumbrance upon any assets of TPH.
(v) Litigation. There are no actions, suits or proceedings pending or, to TPH's knowledge, threatened, against TPH before any Governmental Authority which question TPH's right to enter into or perform this Agreement, or which question the validity of this Agreement.
2.2.2 TPH-A hereby represents and warrants to AFSL and FSL as of the date of the Joinder Agreement and as of the Effective Date as follows:
(i) Organization. TPH-A is a kabushiki kaisha, duly organized, validly existing and in good standing under the laws of Japan, and has the corporate power and authority to execute, deliver and perform its obligations under this Agreement.
(ii) Authorization; Execution and Delivery; Enforceability. All corporate action on the part of TPH-A necessary for the authorization, execution and delivery of the Joinder Agreement, and for the performance of all its obligations thereunder and hereunder has been taken.
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The Joinder Agreement has been duly executed and delivered by TPH-A and constitutes a valid and legally binding obligation of TPH-A.
(iii) Government and Other Consents. No consent, authorization, license, permit, registration or approval of, or exemption or other action by, any Governmental Authority, or any other Person, is required in connection with TPH-A's execution, delivery and performance of the Joinder Agreement and this Agreement.
(iv) Effect of Agreement. TPH-A's execution, delivery and performance of the Joinder Agreement and this Agreement, as applicable, will not (i) violate the Articles of Incorporation of TPH-A, or any provision of Law, (ii) violate any judgment, order, writ, injunction or decree of any court applicable to TPH-A, (iii) result in the breach of, give rise to a right of termination, cancellation or acceleration of any obligation with respect to (presently or with the giving of notice, the passage of time or both), or otherwise be in conflict with any term of, or affect the validity or enforceability of, any agreement or other commitment to which TPH-A is a party and which would materially and adversely affect it or the Company, or (iv) result in the creation of any lien, pledge, mortgage, claim, charge or encumbrance upon any assets of TPH-A.
(v) Litigation. There are no actions, suits or proceedings pending or, to TPH-A's knowledge, threatened, against TPH-A before any Governmental Authority which question TPH-A's right to enter into or perform this Agreement and the Joinder Agreement, or which question the validity of this Agreement and the Joinder Agreement.
ARTICLE III OPERATION OF THE COMPANY
3.1 Activities. The Company shall manufacture the semiconductor products for which AFSL/FSL or TPH-A/TPH-J/TPH places an order to the Company from time to time during the term of this Agreement, using the technologies made available by AFSL/FSL and TPH-A/TPH-J/TPH, respectively. With the consent of the Board in compliance with Section 4.7, the Company may manufacture semiconductor products directly for Persons who are not parties to this Agreement.
3.2 Cash Requirement of the Company. All cash requirements of the Company shall be satisfied from cash generated by the operations of the Company, from external financing (on a non-recourse basis and without guarantees of the Shareholders or their Affiliates) procured by the Company in its own name, from financing by the Shareholders (the burden of such financing shall be allocated to a Shareholder based on Pro Rata Ownership) and from the initial capitalization.
3.3 Business Plan.
3.3.1 Conduct of Business. The Company shall conduct its Business in conformity with a business plan jointly prepared and agreed to by the Parties on or prior to the Effective Date, as may be amended from time to time after the Effective Date with the unanimous approval of the Board (the "Business Plan"). In case where the Parties have not agreed on the Business Plan as of the date hereof, then the Parties shall continue to discuss in good faith immediately following the execution of this Agreement and agree on the Business Plan prior to the Effective Date.
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3.3.2 Treatment of the Business Plan. The Parties expect the Company to comply with the Business Plan; provided, however, deviations from the Business Plan that result in an increase or decrease of less than twenty percent (20%) of the original cost or revenue to the Company attributable to such item as set forth in the Business Plan shall not require the consent of the Parties, so long as all such deviations in any given quarter do not represent a deviation of more than ten percent (10%) of total revenue or total expense, as the case may be, in the aggregate for the quarter in which the deviation occurs. No Party shall, however, have any assurance that the Company will achieve the Business Plan, except as to the number of wafers that each of FSL/AFSL and TPH/TPH-A commits to purchase in the Business Plan. In the event that FSL/AFSL or TPH/TPH-A, as applicable, has failed to purchase its applicable number of wafers in accordance with the Business Plan, then such Party shall compensate the Company for the shortfalls in the actual revenue of the Company attributable to its failure to purchase such wafers versus its share of the planned revenue set forth in the Business Plan. As soon as it becomes practicable after the end of each quarter, but not later than thirty (30) days thereafter, the Parties shall review the actual revenue of the Company versus the Business Plan based on the wafer loading by each of FSL/AFSL and TPH/TPH-A for the previous quarter, and if there are any shortfalls in revenue from the Business Plan in such quarter, the compensation for such shortfalls shall be made by a Party who caused such shortfalls to the Company within sixty (60) days after the end of the fiscal year of the Company where such quarter resides. For the avoidance of doubt, (i) if a Party, its Affiliate or another third party purchases such Party's committed number of wafers in the Business Plan, such Party shall not be deemed to have caused a shortfall in the revenue of the Company and (ii) the revenue attributable to a Party's failure to purchase its number of wafers in accordance with the Business Plan shall equal (A) the number of wafers not purchased, multiplied by (B) the agreed price (as set forth in the Business Plan) per wafer.
3.3.3 Revised Budget. The budget of the Company shall be reviewed quarterly and may be revised by the Company with the unanimous approval of the Board. Such revised budget shall be deemed as the then-current Business Plan.
3.4 Independent Entity. The Company shall be operated as an independent business entity, even though the Parties may provide products, personnel and services.
ARTICLE IV MANAGEMENT OF THE COMPANY
4.1 Board. Except where the approval of the Shareholders is required by applicable Laws, the Articles of Incorporation or this Agreement, the business and affairs of the Company shall be managed by the Board.
4.2 Composition of the Board. The Board shall consist of five (5) members (each, a "Director"), three (3) of whom shall be nominated by AFSL and two (2) of whom shall be nominated by TPH-A, and each Shareholder shall vote all of its Shares in favor of the election of the Directors nominated by the other. Each of AFSL and TPH-A shall have the right to nominate a replacement for any Director previously nominated by it, and each shall vote all of its Shares in favor of the election of such replacement. A Director nominated by AFSL shall be a Chairman of the Board for all meetings. In the event that a Shareholder who is entitled to nominate a Director seeks to remove such
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Director by written notice to the Company, all Shareholders shall be obligated to vote their Shares in favor of such removal.
4.3 Board Observers. Representatives of TPH and FSL may attend and participate in any meeting of the Board, but shall in all other respects be a nonvoting observer.
4.4 Meetings; Quorum.
4.4.1 Regular meetings of the Board shall be held at least once per three (3) months at such place and time as set forth in notices provided to the Directors at least ten (10) Business Days in advance of such meeting. Special meetings of the Board shall be held upon notice of not less than three (3) Business Days setting forth an agenda or purpose for the meeting; provided, however, that any Director may waive compliance with such notice requirement before or after the meeting. Special meetings of the Board may be called by at least two (2) Directors upon three (3) Business Days' notice to the Chairman, which notice shall include an agenda for such meeting.
4.4.2 Any Director may propose items for the agendas of any meeting of the Board whether in advance or at such meeting.
4.4.3 A quorum shall be deemed to exist for purposes of Board actions so long as at least a majority of the total number of Directors then in office are present, provided that proper notice of such Board meeting has been given, in accordance with Section 4.4.1, to each of the Directors then in office. Directors may participate in Board meetings in person or electronically (including video or audio conference) in accordance with the Japanese Companies Act.
4.4.4 Proceedings of Board meetings shall be in Japanese/English, as the case may be, and a record of each Board meeting shall be made in Japanese and English, and sent promptly to each Shareholder. In the event of a conflict between the English and Japanese versions, the Japanese version shall control.
4.4.5 Minutes of the meetings of the Board shall be placed and duly maintained at the office of the Company.
4.4.6 Any action that may be taken at a meeting of the Board may be taken in writing in accordance with the Company's Articles of Incorporation.
4.5 Personnel; Representative Director. One of the Directors to be nominated by AFSL shall be the manager of the Company, who shall also be the Representative Director (as defined under the Japanese Companies Act).
4.6 Statutory Auditors. The Company shall have one (1) statutory auditor. The statutory auditor shall be appointed by AFSL, subject to the approval of TPH-A, which approval shall not be unreasonably withheld.
4.7 Actions Requiring Unanimous Board Approval. The Parties agree that the following matters require the unanimous approval of the Directors present at a properly-noticed Board meeting,
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and no Shareholder shall convene a shareholders meeting with respect to the following matters without the prior written consent of the other Shareholder:
4.7.1 revising the budget or Business Plan of the Company;
4.7.2 making any capital contribution in excess of the capital required pursuant to the Business Plan;
4.7.3 manufacturing semiconductor products directly for Persons who are not parties to this Agreement;
4.7.4 selling, transferring, leasing, assigning or otherwise disposing of the property or assets of the Company, or contracting to do so, whether in a single transaction or series of related transactions;
4.7.5 consummating a Change of Control Transaction including without limitation merger, demerger, share exchange, liquidating or dissolving the Company, the entering into of a composition with creditors or the authorization of any filing for bankruptcy by the Company or the transformation of the Company into another type of legal entity;
4.7.6 entering into any agreement to effect a Change of Control Transaction or undertaking any action which effects a Change of Control Transaction, except pursuant to the exercise of the Put Option or Call Option, calls pursuant to Sections 7.5 and 7.6 and transfers permitted pursuant to Sections 8.1 and 8.2;
4.7.7 issuing any shares of the authorized capital of the Company or the authorization or issuance of any new class or series of capital of the Company or any securities convertible into or exchangeable for any class or series of capital of the Company;
4.7.8 recapitalizing, reclassifying, consolidating, subdividing or converting, or altering of any rights attaching to, any class or series of authorized capital of the Company;
4.7.9 entering into any joint venture, partnership or profit-sharing agreement with any third party;
4.7.10 purchasing or otherwise acquiring, or agreeing to purchase or otherwise acquire material assets of any other Person or any shares of capital stock of, or similar interest in, any other Person, or any other asset or group of assets, in a single transaction or series of related transactions;
4.7.11 removing any Director during his/her term of office, unless such Director was requested to be removed by the Shareholder that nominated him/her;
4.7.12 amending or repealing any provision of the Articles of Incorporation or other constituent documents of the Company, including, without limitation, the changing of the business purpose of the Company;
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4.7.13 declaring or paying any dividend or distribution;
4.7.14 adopting or changing a significant tax or accounting practice or principle of the Company or making any significant tax or accounting election by the Company;
4.7.15 making or changing any election in respect of Taxes, filing any amendment to a Tax Return, entering into any agreement in respect of Taxes, settling, responding to, or making any filing or submission in respect of any audit, claim or assessment in respect of Taxes, or consenting to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, other than those approved by the Directors nominated by TPH-A as immaterial or in the ordinary course of the Business, such approval not to be unreasonably withheld;
4.7.16 settling or abandoning, on the part of the Company or any Party or Affiliate of any Party, any legal action that is in the name of the Company or that directly affects the Company, which legal action (A) involves a claim or claims for monetary damages, (B) involves a claim or claims by or against any Governmental Authority, (C) involves any claims raising antitrust issues, or (D) involves a request for injunctive relief;
4.7.17 instituting or determining the strategy of any legal action in the name of the Company that (A) involves a claim or claims for monetary damages, (B) involves a claim or claims by or against any Governmental Authority, (C) involves any claims raising antitrust issues, or (D) involves a request for injunctive relief;
4.7.18 entering into or amending an agreement between the Company and a Party or its Affiliates, other than (A) as expressly contemplated by this Agreement or the SPA, or (B) such amendments that result in an increase or decrease of less than 20% of the original cost or revenue to the Company attributable to such agreement as set forth in the Business Plan, so long as all such deviations in any given quarter do not represent a deviation of more than 10% of total revenue or total expense, as the case may be, in the aggregate for the quarter in which the deviation occurs;
4.7.19 incorporating, liquidating, acquiring or transferring any legal entities;
4.7.20 carrying on any business other than the Business and the businesses currently conducted by the Company as of the Effective Date;
4.7.21 creating, incurring, assuming or permitting to exist any indebtedness, except to the extent consistent with the then-current Business Plan;
4.7.22 creating, incurring, assuming or permitting to exist, directly or indirectly, any lien or other encumbrance upon any property, now owned or hereafter acquired, other than incidental liens or liens to secure indebtedness authorized pursuant to Section 4.7.21;
4.7.23 making any loan or advance or the giving of any credit by the Company (other than normal trade credit) to any Person or the giving of any guarantee or indemnity to secure the liabilities or obligations of any Person or the creation of any mortgage, claim, charge, lien, security interest, easement, right of way, pledge or other encumbrance over the whole or any part of the property or assets of the Company;
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4.7.24 entering into any contract, agreement, commitment, transaction or series of transactions requiring the expenditure by the Company, or the making of any investment, which would exceed thirty million Japanese Yen (¥30,000,000) in the aggregate, except for operational expenditures approved in the Business Plan;
4.7.25 making any material change in (A) the role and responsibility of certain Company employees specified as "Key Employees" in the Appendix 1 attached hereto or (B) the Company's organization;
4.7.26 adopting, materially amending or terminating any Employee Plan, entering into any change in control, severance or similar agreement or any retention or similar agreement with any officer, employee, director or consultant of the Company (including seconded employees), or hiring or making an offer to hire any new employee;
4.7.27 increasing or making any other change that would result in increased cost to the Company to the salary, wage rate, incentive compensation opportunity, employment status, title of other compensation payable or to be become payable to any current or former employee, officer, director, or consultant of the Company (including seconded employees);
4.7.28 entering into, amending or terminating any collective bargaining agreement, labor union contract, works council agreement or other contract with any labor organization or union;
4.7.29 using any Company Assets for (A) the storage, manufacture, processing or disposal of any Harmful Materials, except for the storage of the Designated Nuclear Waste to the extent and in the manner set forth in Article 3.18 of the SPA, or (B) the processing or disposal of industrial waste; or
4.7.30 increasing or decreasing the size of the Board.
Notwithstanding the above, at the request of TPH or TPH-A, the Board shall, without following the procedures set forth in this subsection, approve and direct management to make operational changes to portions of the Company that (i) are specific solely to GaN operation or GaN Equipment and (ii) do not have a material and adverse effect on the Company's profit and loss.
4.8 Agreement Regarding Board. Each Shareholder shall take all actions necessary to cause the Directors nominated by it to abide by and implement all of the provisions of this Agreement.
4.9 Procedure in the Event of Failure to Agree. In the event that the Board has been unable to resolve any matter set forth in Section 4.7 within thirty (30) Business Days after such matter was referred to the Board, then any Party may bring the matter to the attention of the Chief Executive Officer of FSL and the Chief Executive Officer of TPH (the "Designated Individuals") for a decision, which joint decision of the Designated Individuals shall be final and binding on the Company, and the Parties shall direct the Directors nominated by them to exercise their voting rights and take all other necessary steps to ensure that such resolution is fully and promptly carried into effect. Should no solution be agreed upon within sixty (60) days after submission of the matter to the Designated Individuals, then any Party may refer the matter for resolution in accordance with the dispute resolution procedure set forth in Section 11.15.
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ARTICLE V COVENANTS
5.1 Capital Accounts. The capital accounts of each Shareholder shall be updated in proportion to such Shareholder's Pro Rata Ownership.
5.2 Provision of Support Services.
5.2.1 AFSL shall provide support services agreed upon by AFSL/FSL and the Company to the Company, with adequate consideration to FSL/AFSL and/or FSL's/AFSL's designees, the detailed terms and conditions of which services shall be the same as already have been provided in the applicable agreement(s) by and between AFSL/FSL and the Company (if any) or shall be discussed and determined by the Parties.
5.2.2 TPH and TPH-A shall cause the Company to provide support services agreed upon by AFSL/FSL and the Company to FSL/AFSL and/or FSL's/AFSL's designees, with adequate consideration to the Company, the detailed terms and conditions of which services shall be the same as already have been provided in the applicable agreement(s) by and between AFSL/FSL and the Company (if any) or shall be discussed and determined by the Parties.
5.3 GaN Equipment. During the term of this Agreement, TPH-A/TPH shall be responsible for the costs and expenses agreed by the Parties to maintain and/or procure the equipment for wafer processing specified in the Appendix 2 attached hereto and as amended from time to time upon the mutual agreement of the Parties (the "GaN Equipment"). At TPH's sole option, TPH or TPH-A may purchase the GaN Equipment by completion of payment of the purchase price or depreciation cost for such equipment as set forth in Appendix 2. In such case: (i) TPH-A or TPH, as the case may be, shall acquire sole and exclusive title to the GaN Equipment, free and clear of all Encumbrances, and none of FSL, AFSL or the Company shall have any right, title or interest in such GaN Equipment, (ii) such GaN Equipment shall be clearly labeled as the property of TPH-A or TPH, as the case may be, and (iii) FSL and AFSL shall cause to be assigned to TPH-A or TPH, as the case may be, all licenses and warranties for such GaN Equipment and the software or firmware required to operate such GaN Equipment that are attached to, installed on, or embodied in such GaN Equipment as of the Effective Date. During the term if this Agreement, the GaN Equipment shall be used exclusively in GaN wafer processing, and shall not be used in the silicon wafer processing for AFSL's or FSL's current products. In the event that the Company needs to use the GaN Equipment to provide products or services to any customer other than TPH- A or TPH or their Affiliates prior to the Put Closing Date or the Call Closing Date, the Company shall reimburse TPH-A or TPH for the use of such equipment in the manner to be discussed in good faith and agreed upon by the Parties, which reimbursement may be offset against amounts otherwise owing from TPH-A or TPH, as the case may be, to the Company.
5.4 Ancillary Agreements. Prior to the Effective Date, the Parties shall take any actions necessary to cause the Wafer Supply Agreement, the AFSW Secondment Agreement, TPH-J Secondment Agreement, the Joinder Agreement and the Process Development Amendment to go into effect as of the Effective Date.
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5.5 Other Existing Agreements. The Parties shall ensure that the following agreements stay in full force and effect without modification during the term of this Agreement unless they are terminated or modified pursuant to the terms and conditions thereunder:
5.5.1 the Intellectual Property License Agreement, dated November 28, 2013, by and between TPH and Fujitsu Limited;
5.5.2 the Secondment Agreement, dated as of January 31, 2014, by and between Fujitsu Limited and TPH-J; and
5.5.3 the Fujitsu intercompany license agreement and Fujitsu intercompany services agreement.
5.6 Ownership of IP. The Parties agree that the ownership of Intellectual Property Rights in technology developed by or for the Company pursuant to an Ancillary Agreement shall be governed by such Ancillary Agreement.
5.7 Sufficiency of IP. FSL and AFSL represent and warrant that, as of the Put Closing Date or the Call Closing Date, the Intellectual Property Rights owned by the Company, together with the Intellectual Property Rights licensed to TPH pursuant to the Amended Process Development Agreement shall constitute all Intellectual Property Rights owned by FSL, AFSL, Fujitsu Limited or their Affiliates that are or will be necessary for the continued operation of the Business for GaN Wafers following the Put Closing Date or Call Closing Date in the manner conducted as of the Put Closing Date or Call Closing Date, as applicable. For the avoidance of doubt, the Business does not include the Company's performance of the Funded Work.
5.8 Cooperation. The Parties shall cooperate reasonably with each other to obtain and maintain all necessary approvals and registrations to effect this Agreement and all related agreements and documents; provided, however, that the Parties shall not be required to change any provision of this Agreement to obtain or maintain any such approvals or registrations.
5.9 Delivery of Financial Statements; Inspection Rights. The Parties shall cause the Company to deliver to each Party, at the Company's expense, (i) annual audited and quarterly and monthly unaudited financial statements prepared in accordance with Japanese GAAP consistently applied, including any independent auditor's report or opinion thereon, if any, and (ii) any information necessary to enable a Party to prepare consolidated financial statements, in each case within sixty (60) days after the end of each fiscal year of the Company and within thirty (30) days after the end of each quarterly accounting period of the Company and calendar month. Each Party will indemnify the Company and hold it harmless for, from and against any claims, demands, costs or expenses arising out of or relating to such consolidated financial statements, provided that such indemnity shall not apply to claims, demands, costs or expenses to the extent they are related to the Company's financial statements provided to such Party. In addition to any inspection rights granted under Law, upon notice to the Company of at least twenty-four (24) hours, each Party shall have full access to all properties, books of account, and records of the Company.
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5.10 TPH's Stockholder Approval. TPH shall obtain approval of the acquisition of the Option Shares (as defined in the SPA) from the requisite stockholders of TPH in accordance with Delaware Law and TPH's Certificate of Incorporation and Bylaws, which approval shall have been obtained prior to the Effective Date, to the extent such an approval is permissible under Delaware Law.
ARTICLE VI RIGHTS AND OBLIGATIONS OF FSL, TPH AND TPH-A
6.1 FSL. FSL, as a one hundred percent (100%) shareholder of AFSL, shall cause AFSL to perform all obligations of AFSL hereunder.
6.2 TPH. Until TPH-A is incorporated and made a party hereto, TPH shall assume all obligations of TPH-A hereunder. After TPH-A is incorporated and made a party hereto, TPH, as a one hundred percent (100%) shareholder of TPH-A, shall cause TPH-A to perform all obligations of TPH-A hereunder.
6.3 TPH-A. TPH shall cause TPH-A to execute and deliver a joinder agreement to the Parties substantially in the form attached hereto as Exhibit A (the "Joinder Agreement"), and TPH-A shall agree to be bound by the terms and conditions of this Agreement and the SPA to be performed and complied with by TPH-A by executing and delivering the Joinder Agreement.
ARTICLE VII TERM AND TERMINATION
7.1 Termination Prior to the Effective Date. This Agreement may be terminated prior to the Effective Date, and the Joint Venture and the other transactions contemplated by this Agreement may be abandoned at any time prior to the Effective Date (by written notification with respect to Sections 7.1.2 to 7.1.5 below), notwithstanding any requisite approval of this Agreement and the transactions contemplated by this Agreement, as follows:
7.1.1 by mutual written consent duly executed by FSL and AFSL on the one hand, and TPH-A and TPH on the other hand;
7.1.2 by either FSL or AFSL on the one hand, and TPH-A or TPH on the other hand, if the Effective Date shall not have occurred on or before September 30, 2017 (the "Long Stop Date"), provided, however, that the right to terminate this Agreement under this Section 7.1.2 shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Effective Date to occur on or before the Long Stop Date; provided, however, in the event that any required waiting period (and any extension thereof) under the applicable Laws relating to the transactions contemplated hereby shall not have expired or terminated early before the Long Stop Date, the Long Stop Date shall be extended until December 31, 2017;
7.1.3 by either FSL or AFSL on the one hand, and TPH-A or TPH on the other hand, upon the issuance of any Order which is final and nonappealable which would (i) prevent the consummation of the sale of the Shares under the SPA, (ii) prohibit TPH or TPH-A's ownership or operation of any portion of the business of the Company, or (iii) compel FSL, AFSL or the Company
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on the one hand, and TPH-A or TPH on the other hand, to dispose of or hold separate, as a result of the Joint Venture, any portion of the business or assets of the Company;
7.1.4 by FSL or AFSL upon a breach of any representation, warranty, covenant or agreement on the part of TPH or TPH-A set forth in this Agreement or the SPA, or if any representation or warranty of TPH or TPH-A in this Agreement or the SPA shall have become untrue, in either case such that the conditions set forth in Article 7.2 of the SPA would not be satisfied ("Terminating TPH Breach"); provided, however, that, if such Terminating TPH Breach is curable by TPH or TPH-A through the exercise of such Party's reasonable best efforts and for so long as such Party continues to exercise such reasonable best efforts, FSL or AFSL may not terminate this Agreement under this Section 7.1.4 unless such breach is not cured within thirty (30) days after written notice thereof is provided by FSL or AFSL to TPH and TPH-A pursuant to Section 11.7 (but no cure period is required for a breach which, by its nature, cannot be cured); or
7.1.5 by TPH or TPH-A upon a breach of any representation, warranty, covenant or agreement on the part of FSL or AFSL set forth in this Agreement or the SPA, or if any representation or warranty of FSL or AFSL in this Agreement or the SPA shall have become untrue, in either case such that the conditions set forth in Article 7.1 of the SPA would not be satisfied ("Terminating FSL Breach"); provided, however, that, if such Terminating FSL Breach is curable by FSL or AFSL through the exercise of such Party's reasonable best efforts and for so long as such Party continues to exercise such reasonable best efforts, TPH or TPH-A may not terminate this Agreement under this Section 7.1.5 unless such breach is not cured within thirty (30) days after written notice thereof is provided by TPH or TPH-A to FSL and AFSL pursuant to Section 11.7 (but no cure period is required for a breach which, by its nature, cannot be cured).
7.2 Effect of Termination Prior to the Effective Date. In the event of termination of this Agreement pursuant to Section 7.1, this Agreement shall forthwith become void and of no further force and effect, there shall be no liability under this Agreement on the part of any Party or any of their respective officers or directors, and all rights and obligations of each Party hereto shall cease; provided, however, that (i) Section 11.4 and Section 11.6 shall remain in full force and effect and survive any termination of this Agreement and (ii) nothing herein shall relieve any Party from liability for the willful breach of any of its representations or warranties or the breach of any of its covenants or agreements set forth in this Agreement.
7.3 Termination After the Effective Date.
7.3.1 After the Effective Date, this Agreement may be terminated on the date that the first of the following shall occur:
(i) by mutual written consent duly executed by FSL and AFSL on the one hand, and TPH-A and TPH on the other hand;
(ii) By FSL/AFSL or TPH/TPH-A, if there is only one (1) shareholder, whatsoever the reason, in the Company;
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(iii) If the Put Option or Call Option is exercised, one (1) Business Day after the Put Closing Date or Call Closing Date, as applicable;
(iv) By TPH/TPH-A, if FSL/AFSL has not exercised the Put Option within one hundred eighty (180) days of the Option Starting Date; or
(v) By FSL/AFSL and TPH/TPH-A, if there is a change in the Control of the other and the acquiring/succeeding entity causing such change in the Control is an entity that may be reasonably believed to be objectionable to the Japanese Government and/or FSL including FSL's Affiliates in case of the termination by FSL/AFSL or the US Government and/or TPH in case of the termination by TPH/TPH-A, termination to be effective upon thirty (30) days' notice of termination. By way of example only, an entity that deals in weapons or weapon systems directly or indirectly may be deemed as such objectionable entity.
7.3.2 In the event that any one of the following events applies to a Party, the other Party(ies) shall have the right to terminate this Agreement at any time:
(i) it has breached any provisions of this Agreement and, after having received a written notice to cure the breach from the other Party(ies), has failed to cure such breach within thirty (30) days after the receipt of such notice;
(ii) it has been subject to attachment, provisional disposition or has been subject to a procedure for the collection of a tax delinquency; or
(iii) a petition for the commencement of any bankruptcy, civil rehabilitation, or corporation liquidation procedure has occurred.
7.4 Dissolution and Winding-up. In case where this Agreement is terminated pursuant to Section 7.3 (except for the cases of Section 7.3.1(ii) and (iii), and the cases where a Shareholder has exercised the right as specified in Section 7.4 or 7.5), the Company shall be dissolved and wound up unless otherwise agreed by the Parties. In the absence of mutual agreement of the Parties to dissolve and wind up the Company on such terms and conditions as they shall determine, the business and affairs of the Company shall be dissolved and wound up in accordance with the Laws then in effect.
7.5 Shareholder Calls Upon Breach.
7.5.1 Calls by AFSL. If, after the Effective Date, TPH or TPH-A shall have materially breached any of its representations or warranties contained in this Agreement or shall have failed to comply in any material respect with any of the other covenants or agreements contained in this Agreement, which breach or failure shall not have been remedied within thirty (30) days after written notice thereof (the "Default Notice") has been given by AFSL to TPH/TPH-A, then AFSL shall have the option of purchasing from TPH-A, and TPH-A shall be obligated to sell, all of the Shares then owned by TPH-A at a purchase price per Share equal to the lesser of: (i) the Net Book Value as of the most recent month end (provided that, if the Net Book Value is a negative amount, the product of the Net Book Value multiplied by such Sale Shares shall be deemed to be one Japanese Yen (¥1)), or (ii) the Shares Purchase Price, divided by the number of Sale Shares. AFSL shall provide written notice of its election (the "Election Notice") to purchase the Shares owned by TPH-A within ten (10) Business Days following the expiration of the thirty (30) day cure period set forth in the Default Notice. The closing of the purchase of the Shares owned by TPH-A
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shall take place within thirty (30) Business Days following the date of the Election Notice, or at such other time as the Parties may mutually agree. At such closing, AFSL shall deliver to TPH-A, by wire transfer, the full amount of the purchase price in Japanese Yen for such Shares as provided in this Section 7.5.1 against delivery by TPH-A of the following: (a) a sale agreement in form reasonably satisfactory to AFSL containing among other things, a representation and warranty of TPH-A that it is, and AFSL shall be, the beneficial owner of such Shares, with good title thereto, free and clear of all liens and other encumbrances; (b) documentary evidence reasonably satisfactory to AFSL of the transfer to it of all of TPH-A's Shares and (c) resignations of all Directors, if any, on the Board appointed by TPH-A. Notwithstanding the remedies provided in this Section 7.5.1, AFSL/FSL shall be entitled to all other remedies against TPH/TPH-A available at law or equity or under this Agreement.
7.5.2 Calls by TPH-A. If, after the Effective Date, FSL or AFSL shall have materially breached any of its representations or warranties contained in this Agreement or shall have failed to comply in any material respect with any of the other covenants or agreements contained in this Agreement, which breach or failure shall not have been remedied within thirty (30) days after the Default Notice has been given by TPH-A to FSL/AFSL, then TPH-A shall have the option of purchasing from AFSL, and AFSL shall be obligated to sell, all of the Shares then owned by AFSL at a purchase price per Share equal to the lesser of: (i) the Net Book Value as of the most recent month end (provided that, if the Net Book Value is a negative amount, the product of the Net Book Value multiplied by such Sale Shares shall be deemed to be one Japanese Yen (¥1)), or (ii) the Shares Purchase Price, divided by the number of Sale Shares. TPH-A shall provide the Election Notice to purchase the Shares owned by AFSL within ten (10) Business Days following the expiration of the thirty (30) day cure period set forth in the Default Notice. The closing of the purchase of the Shares owned by AFSL shall take place within thirty (30) Business Days following the date of the Election Notice, or at such other time as the Parties may mutually agree. At such closing, TPH-A shall deliver to AFSL, by wire transfer, the full amount of the purchase price in Japanese Yen for such Shares as provided in this Section 7.5.2 against delivery by AFSL of the following: (a) a sale agreement in form reasonably satisfactory to TPH-A containing among other things, a representation and warranty of AFSL that it is, and TPH-A shall be, the beneficial owner of such Shares, with good title thereto, free and clear of all liens and other encumbrances; (b) documentary evidence reasonably satisfactory to TPH-A of the transfer to it of all of AFSL's Shares and (c) resignations of all Directors, if any, on the Board appointed by AFSL. Notwithstanding the remedies provided in this Section 7.5.2, TPH/TPH-A shall be entitled to all other remedies against FSL/AFSL available at law or equity or under this Agreement.
7.6 Shareholder Calls Upon Bankruptcy After the Effective Date.
7.6.1 Calls by AFSL. After the Effective Date, in the event of (a) any distress, execution, sequestration or other process being levied or enforced upon TPH or TPH-A; (b) the adjudication of TPH or TPH-A as a bankrupt or insolvent subject to any insolvency or bankruptcy law; (c) the making by the TPH or TPH-A of an assignment for the benefit of creditors; (d) the suspension of payments or a moratorium on payments to creditors; or (e) the appointment of a receiver or judicial manager or trustee for the business or properties of TPH or TPH-A, then AFSL shall have the right to purchase the Shares of TPH-A in the same manner and subject to the same terms and conditions as specified in Section 7.5.1.
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7.6.2 Calls by TPH-A. After the Effective Date, in the event of (a) any distress, execution, sequestration or other process being levied or enforced upon FSL or AFSL; (b) the adjudication of FSL or AFSL as a bankrupt or insolvent subject to any insolvency or bankruptcy law; (c) the making by the FSL or AFSL of an assignment for the benefit of creditors; (d) the suspension of payments or a moratorium on payments to creditors; or (e) the appointment of a receiver or judicial manager or trustee for the business or properties of FSL or AFSL, then TPH-A shall have the right to purchase the Shares of AFSL in the same manner and subject to the same terms and conditions as specified in Section 7.5.2.
7.7 Survival of Provisions After the Effective Date. Sections 11.4, 11.6, 11.7, 11.14 and 11.15 shall specifically survive the termination of this Agreement after the Effective Date. In case where this Agreement is terminated pursuant to Section 7.3.1(ii) and (iii), Section 9.4, Article X, and Section 11.5 shall also specifically survive the termination of this Agreement after the Effective Date.
7.8 Cooperation. During the term of the Joint Venture, each Party shall cooperate with the other and shall take all actions necessary in order to consummate any sale and purchase of Shares, or dissolution and winding up of the Company.
ARTICLE VIII TRANSFER RESTRICTIONS
8.1 Restrictions on Transfers. Except as set forth in this Article VIII, prior to the Option Starting Date, without the prior written consent of the other Shareholders, no Shareholder may sell, assign, transfer, pledge, encumber or otherwise dispose of, by operation of Law or otherwise, any of its Shares, or rights in or associated with such Shares, and any purported sale, assignment, transfer, pledge, encumbrance or disposition by a Shareholder of its Shares in violation of this Article VIII shall be invalid and of no force and effect.
8.2 Permissible Transfers. AFSL shall be entitled at any time to transfer all but not a portion of the Shares registered in its name to FSL or any other entity Controlled by FSL, and TPH-A shall be entitled at any time to transfer all but not a portion of the Shares registered in its name to TPH or any other entity Controlled by TPH; provided that FSL (or such other entity Controlled by FSL) and TPH (or such other entity Controlled by TPH), as applicable, shall assume the obligations of AFSL and TPH-A, as applicable, hereunder, as set forth in Article VI.
ARTICLE IX PUT OPTION AND CALL OPTION
9.1 AFSL's Right to Require the Purchase of the Shares by TPH or TPH-A.
9.1.1 As longs as AFSL and FSL are not in material and continuing breach of this Agreement or the Ancillary Agreements, FSL or AFSL may trigger the option to sell the Put Shares to TPH-A or its designee (the "Put Option") by providing a written notice of the exercise of the Put Option (the "Put Exercise Notice") simultaneously to the Company, TPH and TPH-A, which notice states (i) such Party's bona fide intention to exercise the Put Option, and (ii) the date on which such Party intends that the Put Closing Date occur.
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9.1.2 FSL or AFSL may not exercise the Put Option for less than one hundred percent (100%) of the Shares held by both FSL and AFSL or any Affiliate of FSL or AFSL, as the case may be.
9.1.3 FSL and AFSL may not exercise the Put Option prior to the Option Starting Date nor more than one hundred eighty (180) days after the Option Starting Date.
9.1.4 The purchase price for the Put Shares (the "Put Option Price") shall be the greater of (x) the amount in Japanese Yen equal to the Net Book Value as of the most recently completed month end prior to the Put Closing Date, minus the Net Book Value as of the most recently completed month end prior to the Effective Date, multiplied by the number of Put Shares, or (y) one Japanese Yen (¥1).
9.1.5 Upon FSL's or AFSL's exercise of the Put Option, TPH-A shall be obliged to purchase or cause TPH-A's designees to purchase, and TPH shall be obliged to cause TPH-A or TPH-A's designees to purchase, the Put Shares in accordance with this Section 9.1. For the avoidance of doubt, the Put Option is the right of AFSL/FSL, and AFSL/FSL is not obliged to exercise the Put Option.
9.1.6 Completion of the sale and purchase of the Put Shares pursuant to the exercise of the Put Option by AFSL/FSL shall take place on the date specified in the Put Exercise Notice (which shall be a date after at least sixty (60) days from the date of the Put Exercise Notice) (the "Put Closing Date") and on which date:
(i) TPH-A shall, or shall cause its designees to, and TPH shall cause TPH-A or TPH-A's designees to, pay to AFSL the Put Option Price for the Put Shares by way of a bank transfer to the bank account as separately designated by AFSL; and
(ii) in exchange for which, AFSL shall deliver to TPH-A or its designees duly executed a letter of request to enter in the shareholder register of the Company the information that is required to be registered with regard to the Put Shares; and
9.1.7 AFSL and TPH-A shall cause the Board to approve the share transfer of the Put Shares on or prior to the Put Closing Date.
9.2 TPH-A's Right to Require the Purchase of the Shares from FSL or AFSL.
9.2.1 As longs as TPH-A and TPH are not in material and continuing breach of this Agreement or the Ancillary Agreements, TPH-A or TPH may trigger the option to purchase the Call Shares (the "Call Option") by providing a written notice of the exercise of the Call Option (the "Call Exercise Notice") simultaneously to the Company, FSL and AFSL, which notice states (i) such Party's bona fide intention to exercise the Call Option, and (ii) the date on which such Party intends that the Call Closing Date occur.
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9.2.2 TPH or TPH-A may not exercise the Call Option for less than one hundred percent (100%) of the Shares held by both FSL and AFSL or any Affiliate of FSL or AFSL, as the case may be.
9.2.3 TPH-A and TPH may not exercise the Call Option prior to the Option Starting Date nor more than one hundred eighty (180) days after the Option Starting Date.
9.2.4 The purchase price for the Call Shares (the "Call Option Price") shall be the greater of (x) the amount in Japanese Yen equal to the Net Book Value as of the most recently completed month end prior to the Call Closing Date, minus the Net Book Value as of the most recently completed month end prior to the Effective Date, multiplied by the number of Call Shares, or (y) one Japanese Yen (¥1).
9.2.5 Upon TPH-A's or TPH's exercise of the Call Option, AFSL/FSL shall be obliged to sell, or cause the holder of the Call Shares to sell, the Call Shares to TPH-A or its designee in accordance with this Section 9.2. For the avoidance of doubt, the Call Option is the right of TPH-A and TPH-A is not obliged to exercise the Call Option.
9.2.6 Completion of the sale and purchase of the Call Shares pursuant to the exercise of the Call Option by TPH- A/TPH shall take place on the date specified in the Call Exercise Notice (which shall be a date after at least sixty (60) days from the date of the Call Exercise Notice) (the "Call Closing Date") and on which date:
(i) TPH-A shall, or shall cause its designees to, and TPH shall cause TPH-A or TPH-A's designees to, pay to AFSL the Call Option Price for the Call Shares by way of a bank transfer to the bank account as separately designated by AFSL; and
(ii) in exchange for which, AFSL shall deliver to TPH-A or its designees duly executed a letter of request to enter in the shareholder register of the Company the information that is required to be registered with regard to the Call Shares.
9.2.7 AFSL and TPH-A shall cause the Board to approve the share transfer of the Call Shares on or prior to the Call Closing Date.
9.3 Conditions to Put Option or Call Option Closing. Each Party's obligation to complete the Put Option or Call Option at the Put Closing Date or Call Closing Date, as applicable, is subject to the fulfillment on or before such Put Closing Date or Call Closing Date of each of the following conditions, unless waived in writing (where permissible) by the applicable party in such closing:
9.3.1 TPH's Stockholder Approval. The acquisition of the Option Shares (as defined in the SPA), shall have been approved and adopted by the requisite stockholders of TPH in accordance with Delaware Law and TPH's Certificate of Incorporation and Bylaws, which approval shall have been obtained prior to the Effective Date, to the extent permissible under Delaware Law.
9.3.2 No Order. No Governmental Authority or court of competent jurisdiction located or having jurisdiction over any of the Parties in the United States shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, decree, judgment, injunction or other
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order, whether temporary, preliminary or permanent (each an "Order") which is then in effect and has the effect of making the closing of the Put Option or Call Option, as applicable, illegal or otherwise prohibiting consummation of the Put Option or Call Option.
9.3.3 Governmental Approvals. All required authorizations, permits, consents, orders, actions or approvals of, or declarations or filings with, or expirations or terminations of waiting periods imposed by, any Governmental Authority in the United States, whether federal, state or local, that may be required, as well as any Governmental Authority in any other jurisdiction which the parties mutually agree in good faith is required to be obtained, in each case, to consummate the Put Option or Call Option, shall have been filed, occurred or been obtained, including that any required waiting period (and any extension thereof) under the Hart-Scott-Rodino Act relating to the transactions contemplated by the Put Option or Call Option shall have expired or been terminated early.
9.3.4 No Other Litigation. There shall not be pending any legal proceeding against or on behalf of any Party preventing or prohibiting or seeking to prevent or prohibit the closing of the Put Option or the Call Option, as applicable.
9.4 Other Obligations.
9.4.1 After the Put Closing Date or Call Closing Date, as applicable, the Parties shall use their best efforts to obtain and maintain all necessary approvals and registrations to effect this Agreement and all related agreements and documents; provided, however, that the Parties shall not be required to change any provision of this Agreement or the SPA, and no Party shall be required to divest any material business unless contemplated by this Agreement or the SPA.
9.4.2 For two (2) years after the Put Closing Date or Call Closing Date, as applicable, TPH shall make, and cause TPH-A to make, every best effort to maintain the employees of the Company.
9.4.3 The Directors appointed by FSL or AFSL shall take whatever steps as are necessary to resign effective as of the Put Closing Date or Call Closing Date, as applicable. Immediately after the Put Closing Date or Call Closing Date, as applicable, TPH-A, TPH and the Company shall be prohibited from using the logo, trademark, corporate name and other indications utilizing or showing the name of AFSL or its Affiliates (the "Fujitsu Logos"), and shall exclude the Fujitsu Logos from any material of the Company. TPH/TPH-A shall change the corporate name of the Company.
ARTICLE X TREATMENT OF EMPLOYEES
10.1 New Terms and Conditions for Employment. The terms and conditions of employment of any person employed by the Company after the Put Closing Date or Call Closing Date, as applicable, shall be on terms and conditions satisfactory to the Company, TPH and TPH-A.
10.2 Representations and Warranties Regarding Employment. FSL and AFSL represent and warrant to TPH and TPH-A, as of the date hereof and as of the Put Closing Date or Call Closing Date, as applicable, that:
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10.2.1 FSL, AFSL and the Company do not have any pension liability in respect of the Company's employees or the Company's pension plans;
10.2.2 there is no material labor dispute between FSL, AFSL or the Company, on the one hand, and the Company's employees, on the other hand or legal proceeding against FSL, AFSL or the Company related to the Company's employees; and
10.2.3 in the event of any liability to the Company's employees to the extent related to their employment by the Company, AFSL, FSL or AFSL/FSL's Affiliates prior to the Put Closing Date or Call Closing Date, as applicable, AFSL and FSL agree that such liability shall be borne solely by AFSL/FSL and not the Company or TPH-A/TPH.
ARTICLE XI MISCELLANEOUS
11.1 No Partnership. None of the provisions of this Agreement shall be deemed to constitute a partnership between or among the Parties and they shall have no authority to bind one another or the Company in any way.
11.2 Limitations on Parties' Authority. None of the Parties shall have or hold itself out as having, any right, authority or agency to act on behalf of any other Party or the Company in any capacity or in any manner except as specifically authorized in this Agreement, and none of the Parties shall become liable to any other Parties or to any other Person by reason of any representation, action or omission of any other Party contrary to this provision. Without limiting the generality of the foregoing, in no event shall any Party have any liability or obligation for any debts, liabilities or contractual obligations of any other Party to any other Person and each Party agrees to indemnify and hold harmless any other Party as to such debts, liabilities and contractual obligations.
11.3 Indemnification.
11.3.1 Each Party agrees to indemnify, defend and hold harmless the Company and any other Party, its permitted successors and assigns, from and against any and all losses, liabilities, claims, damages, costs and expenses including reasonable legal fees and disbursements in connection therewith (collectively, "Claims") asserted against or incurred by the Company or such other Party which arise out of, result from, or may be payable by virtue of, any breach of any representation, warranty, covenant or agreement made or obligation required to be performed by the indemnifying Party pursuant to this Agreement. Notwithstanding the foregoing, claims related to the purchase of the Shares under the SPA shall be governed by the indemnification provisions set forth in the SPA.
11.3.2 In the case of a third party Claim which is subject to indemnification under this Section 11.3, the indemnifying Party shall be notified promptly in writing of the existence of any such Claim instituted at any time against or made upon the indemnified Party or the Company by any third party, and shall be given the opportunity to defend the same with counsel of its choice, in which defense the indemnified Party or the Company, as the case may be, shall cooperate. If the indemnifying Party, after notification, fails promptly to undertake such defense, then the indemnified Party, or the Company, as the case may be, may undertake the defense with counsel of its choice, in which case the indemnifying Party shall bear the cost of such defense, including reasonable legal
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fees and disbursements in connection therewith, and shall pay the amount of any judgment or settlement.
11.4 Confidentiality.
11.4.1 All information, whether written or oral, relating to the Company, the Parties or their Affiliates, or their respective businesses or operations, which includes but is not limited to information obtained as a proprietary right ("Confidential Information"), disclosed by any Party (the "Disclosing Party") to any other Party (or its directors, officers, employees or representatives) shall be kept strictly secret and confidential and shall not be disclosed to any Person except to the extent that any such disclosure is necessary in connection with the performance of this Agreement, and except to the extent that (i) such information is known to such other Parties when received or is or subsequently becomes lawfully obtained from other sources; (ii) the duty as to confidentiality and non-use is waived in writing by the Disclosing Party; or (iii) disclosure of such information is required by applicable Laws or is validly ordered by a Governmental Authority. The Parties further agree that they shall not use, nor permit their respective Affiliates to use, any Confidential Information for any purpose whatsoever except in the manner expressly provided or contemplated in this Agreement. Notwithstanding the foregoing, the treatment of any Confidential Information disclosed pursuant to the Amended Process Development Agreement shall be governed solely by the Amended Process Development Agreement.
11.4.2 Each of the Parties agrees to take, and to cause its respective Affiliates and the Company to take, reasonably adequate security and precautionary measures to effect compliance with this Section 11.4 by directors, officers, employees and agents of each of the Parties, their respective Affiliates and the Company who are given access to Confidential Information.
11.4.3 Each of the Parties hereby acknowledges that the Disclosing Party would be irreparably harmed by a breach of this Section 11.4 and it would not be possible to estimate damages resulting from such a breach. The Parties agree that the Disclosing Party shall be entitled to injunctive relief to prevent a breach or continued breach of this Section 11.4, or any part of it, and to secure the enforcement of this Section 11.4 and shall be entitled to recover from the other Parties reasonable legal fees and all costs and expenses incurred in connection with such an action
11.5 Access to Company Information After the Put Closing Date or the Call Closing Date. In case it is necessary for AFSL/FSL to access to any materials or information of the Company prepared or otherwise made on or before the Put Closing Date or the Call Closing Date due to requirement by any Governmental Authority or any third party on or after the Put Closing Date or the Call Closing Date, then, TPH/TPH-A shall fully cooperate, and shall cause the Company to fully cooperate, with AFSL/FSL so that AFSL/FSL can access such materials or information.
11.6 Expenses. Except as otherwise expressly provided herein, Each Party shall pay their own expenses incurred in connection with the execution of this Agreement and their respective performance of the obligations provided for herein, including the expenses incurred by Directors nominated by the respective Shareholders in connection with attendance at meetings of the Board.
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11.7 Notices. All notice, waivers and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand or one (1) day after being sent by e-mail (with reasonable evidence of transmission) and followed by registered mail or an internationally recognized overnight courier service if those to be notified, including Shareholders, Directors and auditors, reside outside Japan, addressed to the Party to whom the notice is intended to be given at the addresses specified below:
(a) If to AFSL: No.4 Kogyo Danchi, Monden-Machi, Aizu Wakamatsu, Fukushima, Japan Aizu Fujitsu Semiconductor Limited Attn: President and Representative Director
(b) If to FSL: Shin-Yokohama Chuo Building, 2-100-45, Shin-Yokohama, Kohoku-Ku, Yokohama, Kanagawa, Japan Fujitsu Semiconductor Limited Attn: Head of Corporate Management Unit
(c) If to TPH: 75 Castilian Drive Goleta, CA 93117, U.S.A. Transphorm, Inc. Attn: Chief Executive Officer
With a copy, which shall not constitute notice, to each of:
Wilson Sonsini Goodrich & Rosati, P.C. 650 Page Mill Road Palo Alto, CA 94304-1050, U.S.A. Attn: Mark Bertelsen and Julia Reigel
and
Mori Hamada & Matsumoto Marunouchi Park Building, 2-6-1 Marunouchi, Chiyoda-ku, Tokyo 100-8222, Japan Attn: Masujima Masakazu
or to such other address or addresses as any such Party may from time to time designate by written notice. Notwithstanding the foregoing, the Parties acknowledge and agree that notice hereunder may be provided by e-mail, but such notice shall not be deemed effective unless and until the Party to whom such notice was delivered confirms, in writing, receipt of such notice.
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11.8 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns. Notwithstanding the foregoing, no rights, obligations or liabilities hereunder shall be assignable by a Party without prior written consent of all of the other Parties; provided, however, that a Party shall not unreasonably withhold its consent to the assignment of rights and obligations by the other Parties to its Affiliate if that Affiliate's performance has been guaranteed satisfactorily in form and substance by the assigning Party.
11.9 Waiver. No action taken pursuant to this Agreement shall be deemed to constitute a waiver of compliance with any representation, warranty, covenant or agreement contained in this Agreement and shall not operate or be construed as a waiver of a similar or dissimilar nature. A Party may by written notice (a) extend the time for performance of any of the obligations or other actions of any other Parties under this Agreement, (b) waive any inaccuracies in the representations or warranties of any other shareholder contained in this Agreement, or (c) waive or modify performance of any of the covenants or obligations of any other Parties under this Agreement.
11.10 Announcements. FSL, AFSL TPH and TPH-A shall consult and confer with each other prior to making any public announcement concerning any of the transactions contemplated in this Agreement.
11.11 Entire Agreement. This Agreement supersedes any previous agreement, whether written or oral, that may have been made or entered into by and among the Parties or any of them or their representatives relating to the matters contemplated hereby. This Agreement constitutes the entire agreement by and among the Parties with respect to the subject matter hereof.
11.12 Amendments. This Agreement may be amended or supplemented only by written agreement signed by the Parties.
11.13 Limitations on Rights of Third Persons. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any Person other than the Parties any rights or remedies under or by reason of this Agreement or any transaction contemplated hereby, except the permitted assigns of the Parties.
11.14 Governing Law; Language. The English text of this Agreement shall control any interpretation of its provisions, and this Agreement and the legal relations among the Parties and the Company shall in all respects be interpreted, construed and governed by and in accordance with the laws of Japan.
11.15 Resolution of Disputes.
11.15.1 The Parties shall attempt in good faith to resolve any and all disputes arising out of or relating to this Agreement through friendly consultations. If the Parties cannot resolve the dispute through friendly consultation, the provisions of Section 11.15.2 to Section 11.15.4 shall apply with respect to such dispute.
11.15.2 Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof, shall be finally resolved exclusively by arbitration administered by the Hong Kong International Arbitration Centre ("HKIAC"). The arbitration shall be conducted in accordance with the HKIAC Administered Arbitration Rules in effect at the time of the arbitration, except as they may be modified by mutual agreement of the
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Parties. The seat of the arbitration shall be Hong Kong. The arbitration shall be conducted in the English language.
11.15.3 The arbitration shall be conducted by three (3) arbitrators. The Party initiating arbitration (the "Claimant") shall appoint an arbitrator in its request for arbitration (the "Request"). The other Party to the arbitration (the "Respondent") shall appoint an arbitrator within thirty (30) days of receipt of the Request and shall notify Claimant of such appointment in writing. The first two (2) arbitrators appointed in accordance with this provision shall appoint a third arbitrator, who shall act as chair of the tribunal. The arbitral award shall be in writing, state the reasons for the award, and be final and binding on the Parties. The award may include an award of costs, including, without limitation, reasonable attorneys' fees and disbursements. In addition to monetary damages, the arbitral tribunal shall be empowered to award equitable relief.
11.15.4 The Parties agree that the arbitration shall be kept confidential, and that the costs of arbitration shall be borne by the losing Party unless otherwise determined by the arbitration award. All payments made pursuant to the arbitration decision or award and any judgment entered thereon shall be made in United States dollars, free from any deduction, offset or withholding for taxes.
11.15.5 Notwithstanding this Section 11.15 or any other provision to the contrary in this Agreement, no Party shall be obligated to follow the foregoing arbitration procedures where such Party intends to apply to any court of competent jurisdiction for an interim injunction or similar equitable relief against any other Party, provided there is no unreasonable delay in the prosecution of that application.
11.15.6 When any dispute occurs and when any dispute is under litigation or arbitration, except for the matters in dispute, the Parties shall continue to fulfill their respective obligations and shall be entitled to exercise their rights under this Agreement. However, this provision shall not apply to rights or obligations extinguished in connection with a valid termination of this Agreement.
11.15.7 Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. Except as set forth above, each of the Parties hereby irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
11.16 Severability. Each section and subsection of this Agreement constitutes a separate and distinct undertaking or provision hereof. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Laws. In the event that any provision of this Agreement shall finally be determined by a competent court or tribunal to be unlawful or unenforceable, such provision shall be deemed severed from this Agreement, but every other provision of this Agreement shall remain in full force and effect, and in substitution for any such provision held unlawful or unenforceable, there shall be substituted a provision of similar import reflecting the original intent of the Parties to the extent permissible under applicable Laws.
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11.17 Execution in Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. The signature of each Party may be evidenced by an electronic (e.g., pdf) copy of this Agreement bearing such signature and transmitted to the other Parties. Such signature shall be valid and binding as if an original executed copy of this Agreement has been delivered.
11.18 Titles and Headings. Titles and headings to sections herein are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.
11.19 Counsel only to TPH and TPH-A. Wilson Sonsini Goodrich & Rosati, P.C. ("WSGR") and Mori Hamada & Matsumoto ("MHM") are counsel solely to TPH-A and TPH. The other Parties to the Agreement acknowledge that they are not relying on WSGR or MHM for advice in connection with the matters related to this Agreement and the transactions contemplated hereby, and that they have had the opportunity consult counsel of their own choosing and have elected not to do so.
[Signature pages follow]
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IN WITNESS WHEREOF, the Parties have caused their respective duly authorized officers to execute this Agreement as of the day and year first above written.
Aizu Fujitsu Semiconductor Limited
By: /s/ Atsuo Shimizu Name: Atsuo Shimizu Title: President and Representative Director
Fujitsu Semiconductor Limited
By: /s/ Kagemasa Magaribuchi Name: Kagemasa Magaribuchi Title: President and Representative Director
Transphorm, Inc.
By: /s/ Mario Rivas Name: Mario Rivas Title: Chief Executive Officer
Signature page to the Joint Venture Agreement
Confidential Execution Version
EXHIBIT A FORM OF JOINDER AGREEMENT
This JOINDER (this "Joinder"), dated as of [● ●], 2017, is delivered pursuant to (a) Section 6.3 of that certain Joint Venture Agreement dated as of May 23, 2017, by and among Aizu Fujitsu Semiconductor Limited (the "Seller"), Fujitsu Semiconductor Limited ("FSL") and Transphorm, Inc. ("TPH") (as such agreement may be amended, supplemented or modified from time to time in accordance with its terms, the "Joint Venture Agreement") and (b) Section 5.3.2 of that certain Shares Purchase Agreement dated as of May 23, 2017, by and among the Seller, FSL and TPH (as such agreement may be amended, supplemented or modified from time to time in accordance with its terms, the "Shares Purchase Agreement"). The undersigned, [●], a Japanese corporation ("TPH-A") hereby agrees that this Joinder may be attached to each of the Joint Venture Agreement and the Shares Purchase Agreement.
1. Joinder to Joint Venture Agreement. TPH-A, by executing and delivering this Joinder, hereby becomes a party to the Joint Venture Agreement in the capacity of "TPH-A" as defined therein in accordance with Section 6.3 thereof, and agrees to be bound by all of the terms and conditions thereof (including without limitation all of the representations and warranties and covenants of TPH-A therein to be made or performed, as applicable, from and after the date hereof), in each case as if the undersigned were a direct signatory thereto.
2. Joinder to Shares Purchase Agreement. TPH-A, by executing and delivering this Joinder, hereby becomes a party to the Shares Purchase Agreement in the capacity of the "Purchaser" as defined therein in accordance with Section 5.3.2 thereof, and agrees to be bound by all of the terms and conditions thereof (including without limitation all of the representations and warranties and covenants of the Purchaser therein to be made or performed, as applicable, from and after the date hereof), in each case as if the undersigned were a direct signatory thereto.
3. Representations and Warranties. TPH-A hereby represents and warrants that:
a. TPH-A has all requisite power and authority to enter into this Joinder and to perform its covenants and obligations hereunder; and
b. The execution and delivery of this Joinder and the performance by TPH-A of its covenants and obligations hereunder have been duly authorized by all necessary action on the part of TPH-A and no further action is required on the part of TPH-A to authorize this Joinder or the performance by TPH-A of its covenants and obligations hereunder.
[SIGNATURE PAGE FOLLOWS]
-Exhibit A-1-
Confidential Execution Version
IN WITNESS WHEREOF, the undersigned has caused this Joinder to be duly executed and delivered by its officer thereunto duly authorized as of [● ●], 2017.
[●], a Japanese corporation
By: Name: Title:
-Exhibit A-2-
Confidential Execution Version
APPENDIX 1
Key Employees
Department Employee ID Name Date of hiring Title
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] Manager [***] [***] [***] [***] [***] [***] [***] [***] [***]
Name Current Employment [***] Seconded to TPH-J [***] Seconded to TPH-J [***] TPH-J [***] Seconded to TPH-J [***] Seconded to TPH-J [***] Seconded to TPH-J [***] TPH-J [***] Seconded to TPH-J [***] Seconded to TPH-J [***] Seconded to TPH-J [***] Seconded to TPH-J [***] Seconded to TPH-J
-A1-1-
Confidential Execution Version
APPENDIX 2
GaN Equipment
No Asset ID Tool name Tool ID Application
1 I12026102439 [***] [***] [***] 2 I12016100800 [***] [***] [***] 3 I12016100427 [***] [***] [***] 4 I12016100801 [***] [***] [***] 5 I14086159094 [***] [***] [***] 6 I14086159092 [***] [***] [***]
Invoice Amount
Item Specification Last Invoice Month 2017/06 2017/07 2017/08 2017/09 2017/10 2017/11 2017/12 2018/01 2018/02 2018/03 2018/04 2018/5 2018/6 2018/7 2018/8 2018/9 2018/10 2018/11 2018/12 2019/01 2019/02 2019/03 2019/04
[***] [***] 201804 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201802 [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201803 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201804 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201807 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201802 [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201802 [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201802 [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201804 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201804 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201804 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201802 [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201802 [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201804 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201804 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201803 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201803 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201802 [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201803 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201803 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201803 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201803 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201810 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201812 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201902 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201904 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201904 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201904 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201904 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201904 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201904 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201904 [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] 201711 [***] [***] [***] [***] [***] [***]
-A2-1-
Question:
Highlight the parts (if any) of this contract related to "Rofr/Rofo/Rofn" that should be reviewed by a lawyer. Details: Is there a clause granting one party a right of first refusal, right of first offer or right of first negotiation to purchase, license, market, or distribute equity interest, technology, assets, products or services? | If, after the Effective Date, FSL or AFSL shall have materially breached any of its representations or warranties contained in this Agreement or shall have failed to comply in any material respect with any of the other covenants or agreements contained in this Agreement, which breach or failure shall not have been remedied within thirty (30) days after the Default Notice has been given by TPH-A to FSL/AFSL, then TPH-A shall have the option of purchasing from AFSL, and AFSL shall be obligated to sell, all of the Shares then owned by AFSL at a purchase price per Share equal to the lesser of: (i) the Net Book Value as of the most recent month end (provided that, if the Net Book Value is a negative amount, the product of the Net Book Value multiplied by such Sale Shares shall be deemed to be one Japanese Yen (¥1)), or (ii) the Shares Purchase Price, divided by the number of Sale Shares. TPH-A shall provide the Election Notice to purchase the Shares owned by AFSL within ten (10) Business Days following the expiration of the thirty (30) day cure period set forth in the Default Notice. The closing of the purchase of the Shares owned by AFSL shall take place within thirty (30) Business Days following the date of the Election Notice, or at such other time as the Parties may mutually agree. At such closing, TPH-A shall deliver to AFSL, by wire transfer, the full amount of the purchase price in Japanese Yen for such Shares as provided in this Section 7.5.2 against delivery by AFSL of the following: (a) a sale agreement in form reasonably satisfactory to TPH-A containing among other things, a representation and warranty of AFSL that it is, and TPH-A shall be, the beneficial owner of such Shares, with good title thereto, free and clear of all liens and other encumbrances; (b) documentary evidence reasonably satisfactory to TPH-A of the transfer to it of all of AFSL's Shares and (c) resignations of all Directors, if any, on the Board appointed by AFSL. Notwithstanding the remedies provided in this Section 7.5.2, TPH/TPH-A shall be entitled to all other remedies against FSL/AFSL available at law or equity or under this Agreement. | Given the context, answer the question that follows |
During the period: (i) beginning on the Commencement Date and ending on the first anniversary of the Commencement Date, Executive will be paid a base salary at an annualized rate of $400,000 (the “Base Salary”); and (ii) beginning on the first anniversary of the Commencement Date and ending at the conclusion of the Term, Executive will be paid a Base Salary of $450,000. | salary | Given the provision, provide with the correct label for the given provision |
The Seller is not in violation in any material respect of any laws, governmental orders, rules or regulations, whether federal, state or local, to which it or any of its properties are subject. | compliance with laws | Given the provision, provide with the correct label for the given provision |
Each such repayment shall be accompanied by any amount required to be paid pursuant to Section 5.9 hereof. | optional prepayments | Given the provision, provide with the correct label for the given provision |
Such projections represent each Credit Party’s reasonable best estimate of such Credit Party’s future financial performance and such assumptions are believed by such Credit Party to be fair and reasonable in light of the business conditions at the time such projections were made; provided , however , that (i) projections as to future events are not to be viewed as facts, (ii) Credit Parties can give no assurance that such projections will be attained and (iii) the Agent and Lenders are hereby notified that the differences between projected results and actual results may be material. | full disclosures | Given the provision, provide with the correct label for the given provision |
The Company shall reimburse Executive for all reasonable travel and other business expenses incurred by Executive in the performance of Executive’s duties to the Company in accordance with the Company’s expense reimbursement Policy. | business expenses | Given the provision, provide with the correct label for the given provision |
The General Partner shall otherwise have the duty to manage the affairs of the Partnership during any period when there is no Investment Manager. | investment managers | Given the provision, provide with the correct label for the given provision |
The Borrower shall not, and shall ensure each Subsidiary shall not, make or cause any payment to, or sell, lease, transfer or otherwise dispose of any of its Assets to, or purchase any Assets from, or enter into or make, replace, terminate or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, the Sponsor or its Affiliates or any of the Affiliates of the Borrower and each of their respective members and principals (each, an “ Affiliate Transaction ”), unless the Affiliate Transaction is upon terms and conditions that are intrinsically fair, commercially reasonable and on terms no less favorable to such Relevant Party than those that would be available on an arms-length basis with an unrelated Person (other than (i) Restricted Payments permitted to be made under Section 7.06 , (ii) the Transaction Documents in existence as at the Closing Date or (iii) transactions that are permitted pursuant to Section 7.03 . | transactions with affiliates | Given the provision, provide with the correct label for the given provision |
Each Member hereby acknowledges and agrees that the breach by such Member of its covenants and obligations under this ARTICLE XII will cause irreparable harm and significant injury to the Company which could be difficult to limit or quantify. | equitable relief | Given the provision, provide with the correct label for the given provision |
For the avoidance of doubt any disclosure of the Company's ability to continue as a "going concern" shall not, by itself, be a violation of this Section 3(w). | solvency | Given the provision, provide with the correct label for the given provision |
Unless otherwise determined by the Committee, a Participating Employee whose employment transfers or whose employment terminates with an immediate rehire (with no break in service) by or between the Company or a Designated Company will not be treated as having terminated employment for purposes of participating in the Plan or an Offering; however, if a Participating Employee transfers from a Section 423 Offering to a Non-Section 423 Offering, the exercise of the option will be qualified under the Section 423 Offering only to the extent that such exercise complies with Section 423 of the Code. | transfer of employment | Given the provision, provide with the correct label for the given provision |
The "Conversion Price" shall be defined as the lower $0.025 per share, or, a 75% discount to the closing price of the Common Stock on the Over-the-Counter Bulletin Board on the trading day immediately prior to the date that a Notice of Conversion is submitted pursuant to Section 2.3. or, if the Over-the-Counter Bulletin Board is not the principal trading market for such security, the closing price of such security on the principal securities exchange or trading market where such security is listed or traded on the trading day immediately prior to the date that a Notice of Conversion is submitted pursuant to Section 2.3. or, if no closing bid price of such security is available in any of the foregoing manners, the average of the closing bid prices of any market makers for such security that are listed in the "pink sheets" by the National Quotation Bureau, Inc. on the trading day immediately prior to the date that a Notice of Conversion is submitted pursuant to Section 2.3. | conversion price | Given the provision, provide with the correct label for the given provision |
Severance payments shall be made, as due, from the general funds of the Company. | unfunded obligations | Given the provision, provide with the correct label for the given provision |
The Exchange Cap shall be appropriately adjusted for any stock dividend, stock split, reverse stock split or similar transaction. | compliance with principal market rules | Given the provision, provide with the correct label for the given provision |
Nothing herein shall alter Mr. Schultz’s base salary, which shall continue at its current rate of $852,800.00 per annum (“Base Salary”), through his Retirement Date. | base salary | Given the provision, provide with the correct label for the given provision |
Subject to the satisfaction (or written waiver) of the conditions set forth in Section 5 and Section 6 below, the date of the issuance and sale of the Securities pursuant to this Agreement (the “ Closing Date ”) shall be December 31, 2018, or such other mutually agreed upon date. | closing dates | Given the provision, provide with the correct label for the given provision |
Subject to the Bank’s ability to terminate this Agreement in accordance with Section 8 and the Bank’s ability to amend or revise Exhibit C as set forth in Section 1, no amendments or additions to this Agreement shall be binding unless in writing and signed by both parties hereto. | amendments | Given the provision, provide with the correct label for the given provision |
The Participant also may be required to remit or repatriate funds received as a result of the Participant’s participation in the Plan to his or her country through a designated bank or broker and/or within a certain time after receipt. | exchange controls | Given the provision, provide with the correct label for the given provision |
Obligors shall maintain Dominion Accounts pursuant to lockbox or other arrangements acceptable to Lender in its good faith credit judgment; provided that , Lender agrees that, upon satisfaction of the condition precedent set forth in Section 6.1(d) hereof, the arrangements in place as of the Closing Date are acceptable to Lender. | maintenance of dominion accounts | Given the provision, provide with the correct label for the given provision |
This Agreement shall be contingent on the consummation of the transactions contemplated by the Merger Agreement. | contingency | Given the provision, provide with the correct label for the given provision |
Any consent required under this Section 12.3(b) other than with respect to the LC Issuers or the Swing Line Lenders shall not be unreasonably withheld or delayed. | consents | Given the provision, provide with the correct label for the given provision |
Agent shall make available to Borrowers monthly statements regarding the Loan Account, including the principal amount of the Revolving Loans, interest accrued hereunder, fees accrued or charged hereunder or under the other Loan Documents, and a summary itemization of all charges and expenses constituting Lender Group Expenses accrued hereunder or under the other Loan Documents, and each such statement, absent manifest error, shall be conclusively presumed to be correct and accurate and constitute an account stated between Borrowers and the Lender Group unless, within 30 days after Agent first makes such a statement available to Borrowers, Borrowers shall deliver to Agent written objection thereto describing the error or errors contained in such statement. | loan accounts | Given the provision, provide with the correct label for the given provision |
Except as provided in the Plan, this Agreement and the Award Memorandum, until the Option Shares have been purchased upon exercise of any part of this Option, this Option and the Option Shares issuable upon exercise hereunder and the rights and privileges conferred hereby may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated (by operation of law or otherwise). | non-transferability of awards | Given the provision, provide with the correct label for the given provision |
If any of the Termination Events set forth in Exhibit V shall occur, the Administrator may (with the consent of the Majority Purchaser Agents) or shall (at the direction of the Majority Purchaser Agents), by notice to the Seller, declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred); provided , that automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (f) of Exhibit V , the Facility Termination Date shall occur. | termination events | Given the provision, provide with the correct label for the given provision |
The Parties shall use commercially reasonable efforts to structure indemnity payments to avoid incurring Tax liabilities on the receipt thereof. | tax benefits | Given the provision, provide with the correct label for the given provision |
Upon such execution and delivery, such subsidiary will become a Grantor hereunder with the same force and effect as if originally named as a Grantor herein. | additional grantors | Given the provision, provide with the correct label for the given provision |
Each Purchaser agrees to use commercially reasonable efforts to maintain, in accordance with its customary practices, the confidentiality of information obtained by it pursuant to any Note Document, except that such information may be disclosed (i) with the Borrower’s consent, (ii) to any investment committee of such Purchaser that is advised of the confidential nature of such information and is instructed to keep such information confidential in accordance with the terms hereof, (iii) to Persons employed or engaged by Collateral Agent or such Purchaser or such Purchaser’s Affiliates or Approved Funds in evaluating, approving, structuring or administering the Notes, (iv) to the extent such information presently is or hereafter becomes (A) publicly available other than as a result of a breach of this Section 12.17 or (B) available to such Purchaser from a source (other than any Loan Party) not known by such Purchaser to be subject to disclosure restrictions, (v) to the extent disclosure is required by applicable Requirements of Law or other legal process or requested or demanded by any Governmental Authority, (vi) to any other party hereto, (vii) to any assignee or participant or potential assignee or participant that has agreed to comply with the covenant contained in this Section 12.17 (and any such assignee or participant or potential assignee or participant may disclose such information to Persons employed or engaged by them as described in clause (iii) above), (viii) in connection with the exercise or enforcement of any right or remedy under any Note Document or in connection with any litigation or other proceeding to which Purchaser is a party or bound, (ix) to any nationally recognized rating agency that requires access to information about a Purchaser’s investment portfolio in connection with ratings issued with respect to such Purchaser, (x) to any Purchaser’s independent auditors and other professional advisors as to which such information has been identified as confidential. | confidential information | Given the provision, provide with the correct label for the given provision |
In the event that any court determines that this arbitration procedure is not binding, or otherwise allows any litigation regarding a dispute, claim, or controversy covered by this Agreement to proceed, the Parties hereto hereby waive any and all right to a trial by jury in or with respect to such litigation. | binding effects | Given the provision, provide with the correct label for the given provision |
THE PARTIES HEREBY AGREE TO WAIVE THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A JUDGE OR JURY. | arbitration | Given the provision, provide with the correct label for the given provision |
Context:
Exhibit 10.1
JOINT VENTURE AGREEMENT THIS JOINT VENTURE AGREEMENT (the "Agreement") made and entered into this 20th day of Friday, March 2020 (the "Execution Date"), BETWEEN: BorrowMoney.com, inc of 512 Bayshore DR, suite 201 Fort Lauderdale FL 33304, and JVLS, LLC dba Vaccines 2Go of 4060 Johns Creek Parkway Suite H Suwanee, GA 30024 (individually the "Member" and collectively the "Members"). BACKGROUND: A. The Members wish to enter into an association of mutual benefit and agree to jointly invest and set up a joint venture enterprise. B. This Agreement sets out the terms and conditions governing this association. IN CONSIDERATION OF and as a condition of the Members entering into this Agreement and other valuable consideration, the receipt and sufficiency of which consideration is acknowledged, the Members agree as follows: Formation 1. By this Agreement the Members enter into a joint venture (the "Venture") in accordance with the laws of the State of Florida. The rights and obligations of the Members will be as stated in the applicable legislation of the State of Florida (the "Act") except as otherwise provided here. Name 2. The business name of the Venture will be BM&V2GO. Page 1 of 13
Purpose 3. The exclusive purpose of the Venture (the "Purpose") will be IT Development. internet Back office Maintenance And Deployment of medical Service. Term 4. The duration of this Venture (the "Term") will begin on March 1, 2020 and continue in full force and effect until February 28, 2025 or as otherwise provided in this Agreement. 5. The Term may be extended with the unanimous consent of all Members. Place of Business 6. The principal office of the business of the Venture will be located at 512 Bayshore Drive Suite 201 Fort Lauderdale, FL 33304 or such other place as the Members may from time to time designate. Business Management 7. The following managers (the "Managers") have been appointed by the Members to manage the Venture: ● Aaldo PIscitello ● Jody Stewart 8. Except as otherwise provided in this Agreement, the individual Managers may be appointed, replaced, or removed upon unanimous consent of the Members. 9. The Managers will have a primary duty to the best interest of the Venture and not directly to any individual Member. 10. Within the limits of the Purpose of the Venture and the terms of this Agreement, the Managers, acting jointly, will have full authority to bind the Members in all matters relating to the direction, control and management of the Venture. Conduct and actions of the Managers will be dictated by policy and procedure established by the Members. Authority to bind the Venture in contract or in any third party business relation lies exclusively with the Managers, acting jointly. 11. The Managers will jointly decide major issues concerning the Venture. Where Managers are unable to reach agreement in deciding major issues, approval by a majority vote of the Members at a regular or special meeting will be required. Page 2 of 13
Management Duties 12. Except as otherwise specified in this agreement, the duties and obligations of the Managers in relation to the Venture will include the following: a. managing the day to day business of the Venture; b. monitoring, controlling and directing the financial, business and operational affairs of the Venture; c. proper maintenance of books of account and financial records according to accepted accounting practices; d. monitoring, analyzing and acting on all issues over which it would have express or implied authority according to this Agreement; and e. all responsibilities attached to hiring of production and administration staff including any required labor negotiations, and all responsibilities attached to hiring of third party contractors. Member Duties 13. Each Member will be responsible for its respective duties as follows:
Page 3 of 13
Member Duties Description
BorrowMoney.com, inc
*HTML code, build, deploy and maintain all technical aspect requirements including a database for medical dispatch personal & product service as needed, including activity information, data storage and backup. provided by three qualified assigned Borrowmoney.com, inc. employees/personal
JVLS, LLC dba Vaccines 2Go
$60,000.00 USD From Monthly Government , City And State, And Or Private Awarded Contracts. Plus (10%) Of Any Generated Gross Revenue From Awarded Contract, In Addition to The Total Contributions. 14. Duties of Members may be amended, from time to time, by decision of the Members, provided that the Members' interests are not affected except with the unanimous consent of the Members. Capital Contributions 15. Each of the Members has contributed to the capital of the Venture, in cash or property in agreed upon value, as follows (the "Capital Contribution"): Member Contribution Description Agreed Value
BorrowMoney.com, inc 1, 500 square feet of Leased/rent office Space Includingspecified Description of duty* $3,500,000.00 USD
JVLS, LLC dba Vaccines 2Go
$60,000.00 USD From Monthly Government , City And State, And Or Private Awarded Contracts. Plus (10%) Of Any Generated Gross Revenue, In Add i t i on to The To ta l Contributions.
$3,500,000.00 USD
16. All Members will contribute their respective Capital Contributions fully and on time.
Page 4 of 13
Withdrawal of Capital 17. No Member will have the right to demand or withdraw any portion of their capital contribution without the express written consent of the remaining Members. 18. The Members will not be personally liable for the return of all or part of the Capital Contributions of a Member, except as otherwise provided in this Agreement. Additional Capital 19. Capital Contributions may be amended from time to time, according to the requirements of the Venture, by decision of the Members as recommended by the Managers. Where Members' interests are affected, additional capital contributions (the "Additional Capital Contributions") must have the unanimous consent of the Members. 20. Any advance of money to the Venture by any Member in excess of the amounts provided for in this Agreement or subsequently agreed to as an Additional Capital Contribution will be deemed a debt due from the Venture rather than an increase in Capital Contribution of the Member. This liability will be repaid with interest at such rates and times to be determined by a majority of the Members. This liability will not entitle the lending Member to a greater voting power. Such debts may have preference or priority over any other payments to Members as may be determined by a majority of the Members. Capital Accounts 21. An individual capital account will be maintained for each Member and their initial Capital Contribution will be credited to this account. Any additional, approved contributions to the Venture's capital made by a Member will be credited to that Member's individual Capital Account. Interest on Capital 22. No borrowing charge or loan interest will be due or payable to any Member on any Capital Contribution or on their Capital Account despite any disproportion that may from time to time arise among the Capital Accounts of the Members. Page 5 of 13
Books of Account 23. Accurate and complete books of account of the transactions of the Venture will be kept in accordance with generally accepted accounting principles (GAAP) and at all reasonable times will be available and open to inspection and examination by any Member. The books and records of the Venture will reflect all the Venture's transactions and will be appropriate and adequate for the business conducted by the Venture. Banking and Venture Funds 24. The funds of the Venture will be placed in such investments and banking accounts as will be designated by the Members. Venture funds will be held in the name of the Venture and will not be commingled with those of any other person or entity. Member Meetings 25. Regular Member meetings will be held quarterly. Minutes of the meetings will be maintained on file. 26. Any Member can call a special meeting to resolve urgent issues that require a vote and that cannot wait for the next regularly scheduled meeting. When calling a special meeting, all Members must be provided with reasonable notice. Where a special meeting has been called, the meeting will be restricted to the specific purpose for which the meeting was called. 27. All meetings will be held at a time and in a location that is reasonable, convenient and practical considering the situation of all Members. 28. Any vote required by the Members will be determined such that each Member receives one vote carrying equal weight. Amendments 29. This Agreement may be amended only with the unanimous consent of all Members. Admitting a new Member 30. New Members may be admitted into the Venture only with the unanimous consent of the existing Members. The new Member agrees to be bound by all the covenants, terms, and conditions of this Agreement, inclusive of all current and future amendments. Further, a new Member will execute such documents as are needed or required for this admission. Any new Member will receive a business interest in the Venture as determined by all other Members. Page 6 of 13
Dissociation of a Member 31. Where a Member is in breach of this Agreement and that Member has not remedied the breach on notice from the Venture and after a reasonable period then the remaining Members will have the right to terminate this Agreement with regard to that individual defaulting Member (an "Involuntary Withdrawal") and take whatever action necessary to protect the interests of the Venture. 32. If the Venture is harmed as the result of an individual Member's action or failure to act, then that individual Member will be liable for that harm. If more than one Member is at fault then they will be jointly and severally liable for that harm. 33. Each Member will indemnify the remaining Members against all losses, costs and claims that may arise in the event of the Venture being terminated as a result of breach of the Agreement by that Member. 34. If a Member is placed in bankruptcy, or withdraws voluntarily from the Venture, or if there is an Operation of Law against a Member, the other Members will be entitled to proceed as if the Member had breached this Agreement. 35. Distribution of any amount owing to a dissociated Member will be made according to the percentage of ownership as described in the Valuation of Interest or as otherwise may be agreed in writing. Dissolution of the Joint Venture 36. The Venture will be dissolved and its assets liquidated in the event of any of the following: a. the Term expires and is not extended; b. a unanimous vote by the Members to dissolve the Venture; c. on satisfaction of the Purpose; d. loss or incapacity through any means of substantially all of the Venture's assets; or e. where only one Member remains. Page 7 of 13
Liquidation 37. On dissolution, the Venture will be liquidated promptly and within a reasonable time. 38. On the liquidation of the Venture assets, distribution of any amounts to Members will be made in proportion to their respective capital accounts or as otherwise may be agreed in writing. Valuation of Interest 39. In the absence of a written agreement setting a value, the value of the Venture will be determined based on the fair market value appraisal of all Venture assets (less liabilities) in accordance with generally accepted accounting principles (GAAP) by an independent accounting firm agreed to by all Members. An appraiser will be appointed within a reasonable period of the date of withdrawal or dissolution. The results of the appraisal will be binding on all Members. A withdrawing Member's interest will be based on the proportion of their respective capital account less any outstanding liabilities a Member may have to the Venture. The intent of this section is to ensure the survival of the Venture despite the withdrawal of any individual Member. 40. No allowance will be made for goodwill, trade name, patents or other intangible assets, except where those assets have been reflected on the Venture books immediately prior to valuation. Transfer of Member Interest 41. A Member may assign their proprietary assets and their rights in distribution interest in the Venture. Such assignment will only include that Member's economic rights and interests and will not include any other rights of that Member nor will it include an automatic admission as a Member of the Venture or the right to exercise any management or voting interests. A Member who assigns any or all of their Venture interest to any third party will relinquish their status as Member including all management and voting rights. Assignment of Member status, under this clause, including any management and voting interests, will require the consent of all the remaining Members. Page 8 of 13
Management Voting 42. Any management vote required will be determined such that each Manager receives one vote carrying equal weight. Force Majeure 43. A Member will be free of liability to the Venture where the Member is prevented from executing their obligations under this Agreement in whole or in part due to force majeure where the Member has communicated the circumstance of that event to any and all other Members and taken any and all appropriate action to mitigate that event. Force majeure will include, but not be limited to, earthquake, typhoon, flood, fire, and war or any other unforeseen and uncontrollable event. Duty of Loyalty 44. Provided a Member has the consent of the majority of the other Members, the Members to this Agreement and their respective affiliates may have interests in businesses other than the Venture. Neither the Venture nor any other Member will have any rights to the assets, income or profits of any such business, venture or transaction. Any and all businesses, ventures or transactions with any appearance of conflict of interest must be fully disclosed to all other Members. Failure to disclose any potential conflicts of interest will be deemed an Involuntary Withdrawal by the offending Member and may be treated accordingly by the remaining Members. Confidentiality 45. All matters relating to this Agreement and the Venture will be treated by the Members as confidential and no Member will disclose or allow to be disclosed any Venture matter or matters, directly or indirectly, to any third party without the prior written approval of all Members except where the information properly comes into the public domain. 46. This section will survive for one year after the expiration or termination of this Agreement or dissolution of the Venture. Language 47. The Members expressly state that the English language is to be the language of choice for this Agreement and all other notices and agreements required by the Venture. Page 9 of 13
Insurance 48. The Venture will insure all its assets against loss where reasonable and standard practice in the industry. Indemnification 49. Each Member will be indemnified and held harmless by the Venture from any and all harm or damages of any nature relating to the Member's participation in Venture affairs except where such harm or damages results from gross negligence or willful misconduct on the part of the Member. Liability 50. No Member will be liable to the Venture or to any other Member for any error in judgment or any act or failure to act where made in good faith. The Member will be liable for any and all acts or failures to act resulting from gross negligence or willful misconduct. Liability Insurance 51. The Venture may acquire insurance on behalf of any Member, employee, agent or other person engaged in the business interest of the Venture against any liability asserted against them or incurred by them while acting in good faith on behalf of the Venture. Covenant of Good Faith 52. Members will use their best efforts, fairly and in good faith to facilitate the success of the Venture. Joint Venture Property 53. Where allowed by statute, title to all Venture property, including intellectual property, will remain in the name of the Venture. Where joint ventures are not recognized by statute as separate legal entities, Venture property, including intellectual property, will be held in the name of one or more Members. In all cases Venture property will be applied by the Members exclusively for the benefit and purposes of the Venture and in accordance with this Agreement. Jurisdiction 54. The Members submit to the jurisdiction of the courts of the State of Florida for the enforcement of this Agreement and for any arbitration award or decision arising from this Agreement. Page 10 of 13
Mediation and Arbitration 55. In the event a dispute arises out of, or in connection with, this Agreement, the Members will attempt to resolve the dispute through friendly consultation. 56. If the dispute is not resolved within a reasonable period then any or all outstanding issues may be submitted to mediation in accordance with any statutory rules of mediation. If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues will be submitted to final and binding arbitration in accordance with the laws of the State of Florida. The arbitrator's award will be final, and judgment may be entered upon it by any court having jurisdiction within the State of Florida. Warranties 57. All Members represent and warrant that they have all authority, licenses and permits to execute and perform this Agreement and their obligations under this Agreement and that the representative of each Member has been fully authorized to execute this Agreement. 58. Each Member represents and warrants that this Agreement is not in violation of any and all agreements and constitutional documents of the individual Member. Definitions 59. For the purpose of this Agreement, the following terms are defined as follows: a. "Capital Contributions" The capital contribution to the Venture actually made by the Members, including property, cash and any additional capital contributions made. b. "Majority Vote" A Majority Vote is any amount greater than one-half of the authorized votes. c. "Operation of Law" The Operation of Law means rights or duties that are cast upon a party by the law, without any act or agreement on the part of the individual including but not limited to an assignment for the benefit of creditors, a divorce, or a bankruptcy. Page 11 of 13
Miscellaneous 60. This Venture is termed a contractual joint venture and will not constitute a partnership. Members will provide services to one another on an arms' length basis while remaining independent business entities. There will be no pooling of profits and losses. Each Member is responsible only for its own actions and no Member is an agent for any other Member. Members will not be jointly or severally liable for the actions of the other Members. 61. Time is of the essence in this Agreement. 62. This Agreement may be executed in counterparts. Facsimile signatures are binding and are considered to be original signatures. 63. Headings are inserted for the convenience of the Members only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa. 64. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the Members' intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result. 65. This Agreement contains the entire agreement between the Members. All negotiations and understandings have been included in this Agreement. Statements or representations which may have been made by any Member in the negotiation stages of this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value in this Agreement. Only the written terms of this Agreement will bind the Members. 66. This Agreement and the terms and conditions contained in this Agreement apply to and are binding upon the Member's successors, assigns, executors, administrators, beneficiaries, and representatives. 67. Any notices or delivery required here will be deemed completed when hand-delivered, delivered by agent, or seven (7) days after being placed in the post, postage prepaid, to the Members at the addresses contained in this Agreement or as the Members may later designate in writing. Page 12 of 13
68. All of the rights, remedies and benefits provided by this Agreement will be cumulative and will not be exclusive of any other such rights, remedies and benefits allowed by law. IN WITNESS WHEREOF the Members have duly affixed their signatures under hand and seal on this 20th day of March 2020. BorrowMoney.com, inc (Member) Per: /s/ Aldo Piscitello (SEAL) Aldo Piscitello President JVLS, LLC dba Vaccines 2Go (Member) Per: /s/ Jody Stewart Jody Stewart (Mar 20, 2020) (SEAL) Jody Stewart Page 13 of 13
Question:
Highlight the parts (if any) of this contract related to "Governing Law" that should be reviewed by a lawyer. Details: Which state/country's law governs the interpretation of the contract? | By this Agreement the Members enter into a joint venture (the "Venture") in accordance with the laws of the State of Florida. | Given the context, answer the question that follows |
At the time of delivery of each Borrowing Base Certificate, assuming that any eligibility criterion that requires the approval or satisfaction of the Administrative Agent has been approved by or is satisfactory to the Administrative Agent, each Account reflected therein as eligible for inclusion in the applicable Borrowing Base is an Eligible Account, each Purchased Account reflected therein as eligible for inclusion in the applicable Borrowing Base is an Eligible Purchased Account, the Inventory reflected therein as eligible for inclusion in the applicable Borrowing Base constitutes Eligible Inventory or Eligible In-Transit Inventory, the Real Property reflected therein as eligible for inclusion in the applicable Borrowing Base constitutes Eligible U.S. Real Estate, and the Intellectual Property reflected therein as eligible for inclusion in the applicable Borrowing Base constitutes Eligible U.S. | borrowing base certificates | Given the provision, provide with the correct label for the given provision |
The Company shall cause at its expense the investment bank to perform the determinations and notify the Company and the Subscriber of the results no later than five (5) Business Days from the time it receives the disputed determinations. | dispute resolutions | Given the provision, provide with the correct label for the given provision |
For purposes of this Award and any determinations to be made by the Committee hereunder, the determinations by the Committee shall be binding upon the Participant and any transferee. | general | Given the provision, provide with the correct label for the given provision |
Interest charges shall be computed on the actual principal amount of Advances outstanding during the month at a rate per annum equal to, with respect to the Term Loan, Equipment Loans, and Revolving Advances, the applicable Interest Rate. | interests | Given the provision, provide with the correct label for the given provision |
Any notice or other communication required to be given hereunder to a Holder in connection with a registration may instead be given to a designated representative of such Holder. | notices | Given the provision, provide with the correct label for the given provision |
The date on which the Closing shall take place is herein referred to as the “Closing Date”. | closings | Given the provision, provide with the correct label for the given provision |
The same Person who serves at any time as the Indenture Trustee, or an Affiliate of such Person, as calculation agent pursuant to the terms of this Indenture. | calculation agent | Given the provision, provide with the correct label for the given provision |
Buyer has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Purchased Shares. | information | Given the provision, provide with the correct label for the given provision |
Thereafter, any payments that remain outstanding as of the day immediately following the New Payment Date shall be paid without delay over the time period originally scheduled, in accordance with the terms of this Agreement. | six month delay for specified employees | Given the provision, provide with the correct label for the given provision |
In the event that either Party should retain counsel and/or institute any suit against the other for violation of or to enforce any of the covenants or conditions of this Agreement, or should either Party intervene in any suit in which the other is a Party to enforce or protect its interest or rights hereunder, the prevailing Party in any such suit shall be entitled to all of its costs, expenses and reasonable fees of its attorney(s) (if and to the extent permitted by law) in connection therewith. | miscellaneous | Given the provision, provide with the correct label for the given provision |
The Notes shall be substantially in the form set out in Exhibit B. | authorization of notes | Given the provision, provide with the correct label for the given provision |
Calculation of all amounts payable to a Lender under this Section 2.18 and under Section 2.19 shall be made as though such Lender had actually funded each of its relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i) of the definition of “Adjusted Eurodollar Rate” in an amount equal to the amount of such Eurodollar Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such Eurodollar deposit from an offshore office of such Lender to a domestic office of such Lender in the United States of America; provided , however , each Lender may fund each of its Eurodollar Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this Section 2.18 and under Section 2.19. | assumptions concerning funding of eurodollar rate loans | Given the provision, provide with the correct label for the given provision |
Protective Advances, the “ Protective Advances ”) (a) in an aggregate amount not to exceed, when taken together with all U.S. Overadvances and all Canadian Overadvances, (x) if the U.S. | protective advances | Given the provision, provide with the correct label for the given provision |
Nothing in this Agreement shall preclude the Company from amending or terminating any of the plans or programs applicable to salaried employees as long as such amendment or termination is applicable to all salaried employees. | benefit plans | Given the provision, provide with the correct label for the given provision |
The Administrative Agent shall have received, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Restatement Effective Date, a Beneficial Ownership Certification. | beneficial ownership regulations | Given the provision, provide with the correct label for the given provision |
THE SUBORDINATED AGENT, EACH CREDIT PARTY, SENIOR L/C LENDER AND AGENT HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OF THE SUBORDINATED DEBT DOCUMENTS OR ANY OF THE SENIOR DEBT DOCUMENTS AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. | waiver of jury trials | Given the provision, provide with the correct label for the given provision |
Holdings and the Issuer shall have delivered to the Note Agent an executed Closing Date Certificate, together with all attachments thereto. | closing date certificates | Given the provision, provide with the correct label for the given provision |
The RSUs and Shares, including the grant and issuance thereof, are subject to the provisions of the Plan. | provisions of the plan | Given the provision, provide with the correct label for the given provision |
Administrative Agent shall have received all possessory collateral required to be delivered to Administrative Agent pursuant to the Loan Documents, duly endorsed in a manner satisfactory to Administrative Agent indicating Administrative Agent’s security interest therein. | ucc filings | Given the provision, provide with the correct label for the given provision |
Such KEIP Bonus shall be paid at the same time as paid to other Participants. | termination of employment | Given the provision, provide with the correct label for the given provision |
The stock options shall remain exercisable for two years following the Termination Date unless they are earlier exercised or expire pursuant to their original terms, or unless they are exchanged for cash in connection with any Change in Control. | equity awards | Given the provision, provide with the correct label for the given provision |
If any payment of principal or interest on this Note is due on a day that is not a Business Day, such payment will be due on the next succeeding Business Day, and such extension of time will be taken into account in calculating the amount of interest payable under this Note. | payments | Given the provision, provide with the correct label for the given provision |
With respect to each Lender, the percentage set forth on Schedule 1.1 hereto as such Lender’s percentage of the aggregate Commitments of all of the Lenders, as the same may be changed from time to time in accordance with the terms of this Agreement; provided that if all or any portion of the Commitments of the Lenders have been terminated as provided in this Agreement, then the Commitment Percentage of each Lender shall be determined based on the Commitment Percentage of such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof. | commitment percentage | Given the provision, provide with the correct label for the given provision |
Deferrals of benefits distributable pursuant to this Agreement that are otherwise exempt from Code Section 409A in a manner that would cause Code Section 409A to apply shall not be permitted unless such deferrals are in compliance with or otherwise exempt from Code Section 409A. | code section 409a | Given the provision, provide with the correct label for the given provision |
Pro Rata Treatment; Sharing of Setoffs . | payments generally | Given the provision, provide with the correct label for the given provision |
Nothing contained in this Plan and no action taken pursuant to its terms shall create or be construed to create a trust of any kind, or a fiduciary relationship between the Company and any Participant or Beneficiary, or any other person. | contractual obligations | Given the provision, provide with the correct label for the given provision |
The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of any of its Subsidiaries inures to the benefit of the Borrower and that the Borrower's business derives substantial benefits from the businesses of such Subsidiaries. | letters of credit issued for subsidiaries | Given the provision, provide with the correct label for the given provision |
Funds on deposit in the Unfunded Exposure Account as of any date of determination may be withdrawn to fund draw requests of the relevant Obligors under any Revolving Loan Asset or Delayed Draw Loan Asset; provided that, until an Event of Default has occurred, the amount withdrawn to fund such draw request shall not create any Borrowing Base Deficiency. | unfunded exposure account | Given the provision, provide with the correct label for the given provision |
Provided that you have executed the Agreement, fulfilled the obligations described below, and the revocation period described in paragraph 15 below has already expired, the Regular Pay will be paid out over the course of 36 weeks in accordance with Company’s regular payroll schedule, and the Additional Pay will be paid out in equal increments beginning January 1, 2017 through July 31, 2017 in accordance with the Company’s regular payroll schedule. | severances | Given the provision, provide with the correct label for the given provision |
The Maximum Undrawn Amount of all outstanding Letters of Credit shall not exceed in the aggregate at any time the lower of (i) (A) the Borrowing Base minus (B) the aggregate principal amount of all Revolving Loans then outstanding, or (ii) the Letter of Credit Sublimit; provided that, notwithstanding anything to the contrary contained in the foregoing or in any other provision hereof, no Letter of Credit shall be issued if after giving effect thereto, any of the credit limits set forth in Section 2.01(b) would be violated. | letters of credit | Given the provision, provide with the correct label for the given provision |
The respective Agent for each Lender Group shall allocate to the Lenders in its Lender Group each payment in respect of the Advances received by the respective Agent as provided by Section 8.3(a) or Section 2.4 , as applicable. | making of payments | Given the provision, provide with the correct label for the given provision |
Context:
* Confidential treatment has been requested for certain portions of this exhibit. Omitted portions have been filed separately with the Commission.
SPONSORSHIP AGREEMENT
This Sponsorship Agreement ("Agreement") is entered into as of December 18, 1998, by and between Ford Motor Media, a division of J. Walter Thompson ("FMM") with offices at 300 Renaissance Center, Detroit, Michigan 48243 and iVillage, Inc., ("iVillage") with offices at 170 Fifth Avenue, New York, New York 10010. FMM and iVillage may be referred to generically as a "Party", or collectively as "Parties".
WHEREAS, iVillage operates a site on the World Wide Web and America Online (the "Network"), which contains channels including Parent Soup, ParentsPlace, Better Health and Armchair Millionaire as well as career, fitness & beauty, relationships, work from home, travel, money and food channels.
WHEREAS, FMM seeks to promote the sale of its automotive products across the Network.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, iVillage and FMM hereby agree as follows:
1. Term and Termination.
A. Term. The initial production period shall be for a period of two (2) months to commence on November 4, 1998 (the "Production Period"), and the remaining term of this Agreement shall be for a period of twenty four (24) months to commence on the tentative launch date of January 4, 1999, unless terminated earlier as provided herein (the "Promotion Period"), (The Production Period and the Promotion Period shall be collectively referred to as the "Initial Term"). The Parties agree that prior to July 1, 2000, iVillage will provide FMM with the opportunity to renew this Agreement (the "Renewal Term") on terms set forth in a proposal (the "Proposal) to be presented to FMM. FMM shall indicate its acceptance or rejection of the Proposal no later than August 31, 2000. If iVillage does not receive FMM's acceptance or rejection of the Proposal by August 31, 2000, iVillage may interpret FMM's non response as a rejection of the Proposal. The Proposal shall include maximum payment fees by FMM with respect to the Renewal Term.
B. Termination. In the event of a material breach by either Party of any term of this Agreement, the non-breaching Party may terminate this Agreement by written notice to the breaching Party if the breaching Party fails to cure such material breach within thirty (30) days of receipt of written notice thereof. In addition, either Party may terminate this Agreement effective upon written notice stating its intention to terminate in the event the other Party (i) ceases to function as a going concern or to conduct operations in the normal course of business, or (ii) has a petition filed by or against it under any state or federal bankruptcy or insolvency law which petition has not been dismissed or set aside within sixty (60) days of its filing. In addition to the foregoing, if on or after January 31, 2000, either Party determines, based upon reasonable and mutually agreed upon measurable standards, that (x) the other Party has materially underperformed its obligations pursuant to this Agreement or (y) the expectations of such Party have been materially unfulfilled, such Party may terminate this Agreement upon ninety (90) days written notice to the other Party. Additionally, in the event of a prolonged and/or substantial
strike which materially and adversely affects Ford's ability to produce and sell cars, the Parties will work together in good faith to amend or terminate this Agreement.
2. Promotion.
A. During the Production Period, iVillage will design, develop, construct and host a Ford bridge site (the "Bridge Site") which shall include approximately [*] pages of content and other interactive material such as a travel planner or a car design feature. During the Promotion Period, iVillage will continue to host, maintain and update the Bridge Site. Upon receipt from iVillage of the proposed Bridge Site design and content, FMM shall have no more than five (5) business days in which to provide iVillage with its acceptance or rejection of the design and content. If iVillage does not receive FMM's acceptance or rejection of such within the allotted time, iVillage shall deem FMM's silence as acceptance. The Parties shall work together to determine the content mix and delivery deadlines in order to maximize the effectiveness of the sponsorship campaign.
B. During the Initial Term, iVillage will design, create and deliver [*] Ford-branded advertising units. The advertising units shall be subject to FMM's final approval. iVillage will deliver approximately [*] new advertising units each during the Promotion Period. For purposes of this Agreement, an advertising unit can include but shall not be limited to banners in the form of rich media, java-based, animated, daughter and/or pull-down banners, or a combination of appropriate technologies, and which shall represent and be defined by industry standards.
C.
(i) During the Promotion Period, iVillage will deliver a
minimum of [*] advertising impressions, in an equal proportion each month. Subject to reasonable written notice to iVillage, FMM may request a reasonable reallocation of impressions as determined by FMM. The advertising units of Ford Division and other Ford Motor Company entities shall be served by a third party advertisement server, which shall be compliant with Net gravity, or Doubleclick or other compatible technology.
(ii) During the Promotion Period, iVillage traffic shall be audited by a third party traffic auditor listed on Exhibit A and iVillage shall provide FMM with relevant reports on a biweekly basis. iVillage will provide ongoing marketing, creative, technical and editorial consultation to FMM.
(iii) In the event that iVillage fails to deliver the advertising impressions during the Promotion Period, FMM shall have the option of either (a) extending the Initial Term of this Agreement for an additional three (3) month period to "make good" the undelivered impressions or (b) requiring iVillage to refund to FMM an amount equal to [*] for each [*] impressions which were not delivered.
(iv) However, if iVillage falls to deliver the advertising impressions during the Promotion Period and FMM desires that iVillage "make good" the undelivered impressions and extend the Initial Term pursuant to option (a) set forth in Section 2.C.(iii), if the Parties have decided not to renew the Initial Term and iVillage desires to enter into an agreement with an entity whose business(es) would pose a conflict to FMM 2
or Ford Motor Credit, then iVillage, at iVillage's option, may refund the remaining impression deficiency to FMM, and immediately upon pavement of such, the "make good" obligation shall terminate.
D. During the Initial Term, iVillage will design and administer, (i) a minimum of [*] online conferences which shall include live chats and the archiving of conference transcripts (dates of such conferences shall be determined by FMM and shall occur approximately once every two months, but not earlier than March 1, 1999 and FMM shall provide iVillage with not less than forty five (45) days advance notice of any conference); (ii) a minimum of [*] online polls; (iii) a minimum of [*] sixty-second surveys; (iv) a minimum of [*] online focus groups; and (v) a minimum of [*] customized turn-key Network sweepstakes (iVillage shall be responsible for all aspects of the sweepstakes other than the prize(s) which shall be provided by Ford Motor Company ("FMC")). FMM and FMC's respective advertising agencies shall be free to provide input with respect to the aforementioned promotional efforts set forth in this section and shall have the opportunity to reasonably approve such efforts.
E. During the Initial Term, iVillage will develop and administer [*] message boards pertaining to topics mutually determined by the Parties. The first message board shall be live on or about January 4, 1999, or in conjunction with the launch of the Bridge Site.
F. During the Promotional Period, iVillage will place special Ford-branded text links, newsletter mentions, hotlinks and taglines throughout the Network. FMC shall have prior approval over all iVillage uses of any, Ford Mark, as defined below. In the event that any of the Ford-branded links and/or mentions set forth in this Section 2.F. are, in FMC's reasonable judgment, materially injurious to FMC. FMC shall provide written notice of such offense to iVillage. iVillage shall then have one (1) business day in which to cure said offense.
3. Reporting. During the Promotion Period, iVillage agrees to provide FMM with biweekly reports in connection with the promotional obligations set forth in this Agreement in addition to semi-annual executive reviews with iVillage management. All traffic reports shall be audited by the third party traffic auditor selected pursuant to Section 2.C.(ii). iVillage shall also provide, on a timely basis, impression tracking reports from a third party tracking system, confirming guaranteed impression delivery.
4. Exclusivity. For the Initial Term of this Agreement, iVillage agrees that Ford shall be the exclusive automobile manufacturer sponsor and advertiser throughout the Network, with respect to entities whose primary business is that of an automotive manufacturer and/or retailer. For purposes of this Agreement, the term "retailer" shall refer to an entity which sells new and/or used vehicles. In addition, in the event that iVillage desires to form a sponsorship relationship with an automobile rental company during the term of this Agreement, iVillage shall notify Hertz and provide Hertz with an opportunity to enter into such a relationship with iVillage, on not less favorable terms than those offered to any other automobile rental company. Once presented with an opportunity, Hertz shall have five (5) business days in which to accept or reject such terms. If iVillage does not receive Hertz's acceptance or rejection of such within the allotted time, iVillage shall deem Hertz's silence as rejection. The terms of any such relationship shall be mutually determined by the Parties. Notwithstanding the foregoing, FMC shall, on a non-exclusive basis,
3
be permitted to offer Ford Motor Credit car financing products related to the purchase of Ford vehicles.
5. Fee.
A. FMC agrees to pay iVillage, upon signing of this Agreement, an upfront, non-refundable, non-recoupable production and set up fee in the amount of [*]. In addition, FMM shall pay iVillage [*] in equal quarterly payments of [*] each, within ten (10) days after the end of each calendar quarter during 1999.
B. In addition, FMM agrees to pay iVillage, [*] in equal quarterly payments of [*] each, within ten (10) days after the end of each calendar quarter during the year 2000.
6. Representations and Warranties. Each Party hereby represents and warrants that: (a) it is a corporation duly organized and validly existing and in good standing under the laws of the state of incorporation; (b) it has full power and authority to enter into this Agreement and to perform its obligations hereunder; (c) it has obtained all permits, licenses, and other governmental authorizations and approvals required for its performance under this Agreement, and (d) the services to be rendered and the materials provided by each Party under this Agreement neither infringe nor violate any patent, copyright, trade secret, trademark, or other proprietary right of any third party.
7. Proprietary Rights. Upon execution and delivery of this Agreement, iVillage assigns to FMC all right, title and interest in and to the content, design and intellectual property, rights created specifically for and unique to the Bridge Site, advertising units, and other promotional elements set forth in this Agreement (collectively, the "Materials"). Notwithstanding the foregoing, iVillage expressly retains all right, title and interest in and to the programs and software that are used in connection with the creation and operation of, but are not created specifically, for and unique to the Materials (the "iVillage Proprietary Materials"). FMC acknowledges and agrees that the iVillage Proprietary Materials are used by iVillage in creating and developing Web sites for itself and other parties. FMC further acknowledges and agrees that iVillage will be using certain licensed programs and software owned by third parties for portions of the development and creation of the Materials and that FMC will not acquire any right in or to those copyrighted materials. iVillage agrees to execute any and all necessary further documents that FMC may reasonably request to fully vest the intellectual property rights related to the Materials in FMC and, if requested, to reasonable assist FMC in registering such rights in the name of FMC.
8. Publicity. iVillage, FMC and FMM agree to collaborate on a joint press release ("Press Release") to include information regarding the subject matter of this Agreement and quotes from iVillage, FMC and FMM sources. The distribution list shall be approved by both Parties no less than five (5) business days prior to the release date. The Press Release and any quotes from either Party's sources must be approved by the other Party's public relations department, which also must be made aware of any pre-briefings with outside parties at least five (5) days in advance of any pre-briefing. In addition, the iVillage and FMM public relations department, FMC and FMM must be informed, no less than five (5) days before the release date, of any third party who expresses interest in the Press Release.
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9. Licenses. FMM grants to iVillage, during the Initial Term of this Agreement, a royalty-free, non-exclusive, worldwide license to use, reproduce and display Ford's tradenames, trademarks, service marks and logos (collectively, the "Marks") in connection with this Agreement. No right, title, license, or interest in any Marks owned by Ford or any of its affiliates is intended to be given to or acquired by iVillage by the execution of or the performance of this Agreement. iVillage shall not use the Marks for any purpose or activity except as expressly authorized or contemplated herein;
10. Confidentiality. Except as expressly set forth herein, iVillage and FMM shall maintain in confidence the terms of this Agreement. It is expected that, pursuant to discussions to date and to this Agreement, the Parties may disclose to one another certain information ("Confidential Information"), as defined herein, which is considered by the disclosing Party to be proprietary or confidential information. Confidential Information is defined as any, information, communication or data, in any form, including, but not limited to oral, written, graphic or electromagnetic forms, models or samples, which the disclosing Party desires to protect against unrestricted disclosure or use, including without limitation, business information, financial data and marketing data. All Confidential Information shall remain the sole property, of the disclosing Party and its confidentiality shall be maintained and protected by the receiving Party with the same degree of care as the receiving Party uses for its own confidential and proprietary information and the receiving Party shall not disclose such Confidential Information to any third party. The restrictions of the use or disclosure of any Confidential Information shall not apply to any Confidential Information: (i) after it has become generally available to the public without breach of this Agreement by the receiving Party; (ii) is rightfully in the receiving Party's possession prior to disclosure to it by the disclosing Party; (iii) is independently developed by the receiving Party; (iv) is rightfully received by the receiving Party from a third party, without a duty of confidentiality; or (v) is required to be disclosed under operation of law.
11. LIMITATION OF LIABILITY. NEITHER PARTY SHALL HAVE ANY LIABILITY HEREUNDER FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT OR BUSINESS OPPORTUNITIES, WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES AFJSING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
12. Indemnification.
A. iVillage agrees to indemnify, defend and hold harmless FMM and its client Ford Motor Company and their respective parents, subsidiaries, affiliates, successors and assigns from any and all third party losses, liabilities, damages, actions, claims, expenses and costs (including reasonable attorneys' fees) which result or arise out of or in connection with the breach of this
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Agreement by iVillage or which result or arise out of or in connection with any material supplied by iVillage pursuant to this Agreement.
B. FMM agrees to indemnify, defend and hold harmless iVillage and its parent, subsidiaries, affiliates, successors and assigns from any and all third party, losses, liabilities, damages, actions, claims, expenses and costs (including reasonable attorneys' fees) which result or arise out of or in connection with the breach of this Agreement by FMM or which result or arise out of or in connection with any material supplied by FMM or its client Ford Motor Company pursuant to this Agreement.
13. General Provisions.
A. Relationship of the Parties. Nothing contained herein shall imply any partnership, joint venture or agency relationship between the Parties and neither Party shall have the power to obligate or bind the other in any manner whatsoever, except to the extent herein provided.
B. Severability. If any provision of this Agreement shall be declared by any court of competent Jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement shall not be affected and shall remain in full force and effect.
C. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.
D. Notices. All notices, requests, demands, payments and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given if delivered personally, telecopied or sent by nationally recognized overnight carrier, or mailed by certified mail, postage prepaid, return receipt requested, as follows:
If to FMM:
Ford Motor Media 500 Woodward Avenue Detroit, Michigan 48226-3428 Attention: Carol Wright Tel: (313) 964-2954 Fax: (313) 964-2315
If to iVillage:
iVillage, Inc. 170 Fifth Avenue New York, New York 10010 Attention: Vice President Business/Legal Affairs Tel: (212) 206-3106 Fax: (212) 604-9133
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E. Force Majeur. Except as otherwise expressly provided in this Agreement, neither Party shall be liable for any breach of this Agreement for any delay or failure of performance resulting from any cause beyond such Party's reasonable control, including but not limited to the weather, strikes or labor disputes (other than as set forth in Section 1.B), war, terrorist acts, riots or civil disturbances, government regulations, acts of civil or military authorities, or acts of God provided the Party affected takes all reasonably necessary steps to resume full performance. In the event that the Network or the Bridge Site are unavailable for a substantial period of time due an event of force majeur or otherwise, iVillage agrees to use commercially reasonable efforts to "make good" any impressions lost as a result of such circumstance.
F. Entire Agreement. This Agreement (i) constitutes the binding agreement between the Parties, (ii) represents the entire agreement between the Parties and supersedes all prior agreements relating to the subject matter contained herein and (iii) may not be modified or amended except in writing signed by the Parties.
G. Survival. The following sections shall survive any termination or expiration of this Agreement: 6, 7, 10, 11, 12 and 13.
H. Governing Law. Agreement shall be governed by, and construed in accordance with the laws of the State of New York without regard to the conflicts of laws principles thereof.
I. Assignment. Neither Party shall sell, transfer or assign this Agreement or the rights or obligations hereunder, without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed. Notwithstanding the foregoing, upon prior written notice by Ford Motor Company to iVillage, this Agreement may be assigned by FMM to another advertising agency, and in such event, FMM will be released from all financial and other obligations under this Agreement.
J. Headings. The headings of the various sections of this Agreement have been inserted for convenience of reference only.
IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Agreement as of the date first above written.
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FOR FORD CENTRAL MEDIA FOR iVILLAGE, INC.
/s/ Mark A. Kaline /s/ Steven Elkes - -------------------------------------- --------------------------------------- (Name) (Name
Media Manager Vice President Business/]Legal Affairs - -------------------------------------- --------------------------------------- (Title) (Title)
1/12/99 12/18/98 - -------------------------------------- --------------------------------------- (Date) (Date)
/s/ Mark A. Kaline /s/ Steven Elkes - -------------------------------------- --------------------------------------- (Signature) (Signature)
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EXHIBIT A ---------
Third Party Traffic Auditors
ABC I/PRO PWC DoubleClick
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Question:
Highlight the parts (if any) of this contract related to "Minimum Commitment" that should be reviewed by a lawyer. Details: Is there a minimum order size or minimum amount or units per-time period that one party must buy from the counterparty under the contract? | In the event that iVillage fails to deliver the advertising impressions during the Promotion Period, FMM shall have the option of either (a) extending the Initial Term of this Agreement for an additional three (3) month period to "make good" the undelivered impressions or (b) requiring iVillage to refund to FMM an amount equal to [*] for each [*] impressions which were not delivered. | Given the context, answer the question that follows |
This Loan Guaranty is a guaranty of payment and not of collection. | guaranty of payment | Given the provision, provide with the correct label for the given provision |
Executive represents that Executive is not a party to any agreement that restricts Executive’s right or ability to freely carry out Executive’s duties hereunder. | employment | Given the provision, provide with the correct label for the given provision |
Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States federal and state securities laws, to make reference to information that is not made available through the “Public Side Information” portion of the Platform and that may contain Non-Public Information with respect to the Borrower, its Subsidiaries or their Securities for purposes of United States federal or state securities laws. | private side information contacts | Given the provision, provide with the correct label for the given provision |