ASSET PURCHASE AGREEMENT

Exhibit 2.1

 

ASSET PURCHASE AGREEMENT

 

by and among

 

Shellcase Ltd.

 

as “Seller”

 

and

 

Tessera Technologies, Inc.,

 

as “Buyer”

 

Dated: October 31, 2005

ASSET PURCHASE AGREEMENT

 

TABLE OF CONTENTS

 

 

i

 

ii

 

iii

EXHIBITS

 

 

iv

ASSET PURCHASE AGREEMENT

 

This Asset Purchase Agreement, dated as of October 31, 2005, is between Tessera Technologies, Inc., a Delaware corporation (“Buyer”) and Shellcase Ltd., an Israeli company (“Seller”).

 

RECITALS

 

A. Seller owns certain assets which it uses in the conduct of the Business (as defined below).

 

B. Buyer desires to cause the Purchasing Entities to purchase from Seller, and Seller desires to sell to the Purchasing Entities, such assets upon the terms and subject to the conditions of this Agreement.

 

AGREEMENT

 

NOW THEREFORE, in consideration of the respective covenants and promises contained herein and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I.

 

DEFINITIONS

 

1.1. Defined Terms. As used herein, the terms below shall have the following meanings. Any of such terms, unless the context otherwise requires, may be used in the singular or plural, depending upon the reference.

 

“ Action ” shall mean any action, claim, suit, litigation, proceeding, labor dispute, arbitral action, governmental audit, inquiry, criminal prosecution or unfair labor practice charge or complaint.

 

“ affiliate ” shall have the meaning set forth in the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.

 

“ Ancillary Agreements ” shall mean the Indemnification Escrow Agreement and the License and Services Agreement, substantially in the forms attached hereto as Exhibits I and J , respectively.

 

“ Assets ” shall mean all of Seller’s rights, title and interest in and to (i) the Proprietary Rights, including, without limitation, the Proprietary Rights specified on Appendix A , (ii) all Contract Rights (including the prepaid rent balance of approximately $90,000), assets and rights of any kind, whether tangible or intangible, real or personal owned by Seller and specified on Appendix A , (iii) all chemicals, consumables, materials and other supplies owned by Seller at the Closing Date as specified on Appendix A , and (iv) all Books and Records, but excluding in each case the Excluded Assets.

“ Balance Sheet ” shall mean the consolidated balance sheet of Seller and its Subsidiaries at the date indicated thereon, together with the notes thereon.

 

“ Books and Records ” shall mean (a) all records and lists of Seller pertaining to the Assets, (b) all records and lists pertaining to the Business, customers, suppliers or personnel of Seller, (c) all product, business and marketing plans of Seller and (d) all books, ledgers, files, reports, plans, drawings and operating records of every kind maintained by Seller, but excluding the originals of Seller’s minute books, shareholders register and tax returns.

 

“ Business ” shall mean the Seller’s existing business of research and development and business development associated with the development of proprietary technologies for integrated circuit silicon wafer level chip-size packaging for use in image sensor modules and digital and telecommunications infrastructure products, and excluding manufacturing activities.

 

“ China WLCSP Ltd. ” shall mean the joint venture as contemplated by the Contractual Joint Venture Contract between China-Singapore Suzhou Industry Park Ventures Co. Ltd., Infinity-CSVC Ventures Capital Enterprise and Seller, dated as of May 16, 2005.

 

“ Closing Date ” shall mean November 30, 2005 or such other date as Buyer and Seller shall mutually agree upon.

 

“ Code ” shall mean the Internal Revenue Code of 1986, as amended, and the rules and regulations thereunder.

 

“ Contract ” shall mean any agreement, contract, note, loan, evidence of indebtedness, purchase, order, letter of credit, indenture, security or pledge agreement, franchise agreement, undertaking, covenant not to compete, employment agreement, license, instrument, obligation or commitment to which Seller is a party or is bound and which relates to the Business or the Assets, whether oral or written, but excluding all Leases.

 

“ Contract Rights ” shall mean all of Seller’s rights and obligations under the Contracts listed on Appendix A , but excluding the Key License Agreements.

 

“ Copyrights ” shall mean registered copyrights, copyright applications and unregistered copyrights.

 

“ Court Order ” shall mean any judgment, decision, consent decree, injunction, ruling or order of any federal, state, local or foreign court or governmental agency, department or authority that is binding on any person or its property under applicable law.

 

“ Default ” shall mean (1) a breach of or default under any Contract or Lease, (2) the occurrence of an event that with the passage of time or the giving of notice or both would constitute a breach of or default under any Contract or Lease, or (3) the occurrence of an event that with or without the passage of time or the giving of notice or both would give rise to a right of termination, renegotiation or acceleration under any Contract or Lease.

 

“ Disclosure Schedule ” shall mean a schedule executed and delivered by Seller to Buyer as provided in Section 6.18 hereof which sets forth the exceptions to the representations

 

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and warranties contained in Article IV hereof and certain other information called for by this Agreement. Unless otherwise specified, each reference in this Agreement to any numbered schedule is a reference to that numbered schedule which is included in the Disclosure Schedule.

 

“ Dispute Resolution Letter ” shall mean that certain letter agreement of even date herewith between the Buyer and Seller.

 

“ Employee Plan ” any employment, consulting, severance or other similar contract, arrangement or policy and each plan, arrangement (written or oral), program, agreement or commitment providing for benefits, compensation, contributions to severance and/or study funds, retention payments, bonuses, fees, profit-sharing, stock option, stock purchase or other stock related rights or other forms of incentive or deferred compensation, change in control benefits, vacation benefits, insurance coverage (including without limitation any self-insured arrangements), health or medical benefits, employee assistance programs, workers’ compensation, disability benefits, supplemental unemployment benefits, vacation benefits, retirement benefits, life, health, disability or accident benefits, severance benefits and post-employment or retirement benefits that is entered into, maintained, administered or contributed to, or required to be contributed to, by Seller or any of its affiliates and under which any employee or former employee of Seller or its affiliates has accrued any benefit or right whatsoever or under which Seller or any of its affiliates has incurred or may incur any Liability.

 

“ Encumbrance ” shall mean any claim, lien, pledge, option, charge, easement, security interest, deed of trust, mortgage, right-of-way, encroachment, building or use restriction, conditional sales agreement, encumbrance or other right of third parties, whether voluntarily incurred or arising by operation of law, and includes, without limitation, any agreement to give any of the foregoing in the future, and any contingent sale or other title retention agreement or lease in the nature thereof.

 

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

 

“ Excluded Assets ,” notwithstanding any other provision of this Agreement, shall mean the following assets of Seller which are not to be acquired by Buyer hereunder:

 

(a) assets specified on Appendix B to be transferred to China WLCSP Ltd. prior to the Closing;

 

(b) all property and equipment other than that specified on Appendix A ;

 

(c) all cash and cash equivalents held by Seller;

 

(d) all Permits, to the extent not transferable;

 

(e) all claims, causes of action, choses in action, rights of recovery and rights of set-off of any kind against any person or entity arising out of or relating to the Excluded Liabilities or to the issues or claims set forth in the Dispute Resolution Letter;

 

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(f) all intercompany receivables of Seller which are owed by any entity which, after the Closing Date, is an affiliate of Seller;

 

(g) all amounts receivable from tax authorities and all accounts receivable that are unrelated to the Business;

 

(h) the Key License Agreements;

 

(i) all assets related to the Employee Plans;

 

(j) software, books and records related to Seller’s financial bookkeeping and accounting and tax processes;

 

(k) amounts paid in respect of the Key License Agreement with Omnivision International Holding Ltd for the 2005 calendar year; and

 

(l) all debt or equity of third parties that Seller holds, including that related to China WLCSP Ltd. and XinTec Inc.

 

“ Facilities ” shall mean all plants, offices, manufacturing facilities, stores, warehouses, improvements, administration buildings, and all real property and related facilities which are identified or listed on Exhibit A attached hereto.

 

“ Facility Leases ” shall mean all of the leases of Facilities listed on Schedule 4.6 .

 

“ Financial Statements ” shall mean the Year-End Financial Statements and the Interim Financial Statements.

 

“ Fixtures and Equipment ” shall mean all of the furniture, fixtures, furnishings, machinery, automobiles, trucks, spare parts, supplies, equipment, tooling, molds, patterns, dies and other tangible personal property owned by Seller and used in connection with the Business, wherever located and including any such Fixtures and Equipment in the possession of any of Seller’s suppliers, including all warranty rights with respect thereto.

 

“ Former Facility ” shall mean each plant, office, manufacturing facility, store, warehouse, improvement, administrative building and all real property and related facilities that was owned, leased or operated by Seller at any time prior to the date hereof, but excluding any Facilities.

 

“ Insurance Policies ” shall mean the insurance policies related to the Assets listed on Schedule 4.22 .

 

“ Interim Balance Sheet ” shall mean the unaudited Balance Sheet dated the Interim Balance Sheet Date.

 

“ Interim Balance Sheet Date ” shall mean September 30, 2005.

 

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“ Interim Financial Statements ” shall mean the Interim Balance Sheet and the unaudited consolidated statements of operations, changes in shareholders’ equity and cash flow for the period ended on the Interim Balance Sheet Date.

 

“ Inventory ” shall mean all of Seller’s inventory held for resale and all of Seller’s raw materials, work in process, finished products, wrapping, supply and packaging items and similar items with respect to the Business, in each case wherever the same may be located.

 

“ Joint Venture Agreements ” shall mean the Contractual Joint Venture Contract between China-Singapore Suzhou Industry Park Ventures Co. Ltd., Infinity-CSVC Ventures Capital Enterprise and Seller, dated as of May 16, 2005; the Subscription Agreement between Xloom Phototonics Inc., Mr. Avner Badehi and Seller, dated as of November 26, 2001; and the Share Purchase Agreement between Seller and Xintec Inc., dated as of June 8, 2000.

 

“ Joint Ventures ” shall mean Seller’s joint ventures as contemplated by the Joint Venture Agreements.

 

“ Key License Agreements ” shall mean the License Agreement between Seller and XinTec Inc., dated as of June 8, 2000; the License Agreement between Seller and Sanyo Electric Co., Ltd., dated as of March 26, 2001; the Captive License Agreement between Seller and Omnivision International Holding Ltd., dated as of May 4, 2004; and the License Agreement between Seller and China WLCSP Ltd., dated as of May 30, 2005.

 

“ Leased Real Property ” shall mean all leased property described in the Facility Leases.

 

“ Leasehold Estates ” shall mean all of Seller’s rights and obligations as lessee under the Leases.

 

“ Leasehold Improvements ” shall mean all leasehold improvements situated in or on the Leased Real Property and owned by Seller.

 

“ Leases ” shall mean all of the existing leases with respect to the personal or real property of Seller listed on Schedule 4.7 ,.

 

“ Liabilities ” shall mean any direct or indirect liability, indebtedness, obligation, commitment, expense, claim, deficiency, guaranty or endorsement of or by any person of any type, whether accrued, absolute, contingent, matured, unmatured or other.

 

“ material adverse effect ” or “ material adverse change ” shall mean with respect to the Business or the Assets any material adverse effect or change in the condition (financial or other), business, results of operations, prospects, assets, Liabilities or operations of the Business and/or the Assets or on the ability of Seller to consummate the transactions contemplated hereby, or any event or condition which would, with the passage of time, constitute a “material adverse effect” or “material adverse change.”

 

“ ordinary course of business ” or “ ordinary course ” or any similar phrase shall mean the ordinary course of the Business and consistent with Seller’s past practice.

 

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“ Patents ” shall mean all patents and patent applications and registered design and registered design applications.

 

“ Permits ” shall mean all licenses, permits, franchises, approvals, authorizations, consents or orders of, or filings with, any governmental authority, whether foreign, federal, state or local, or any other person, necessary or desirable for the past, present or anticipated conduct of, or relating to the operation of the Business.

 

“ Post-Closing Tax Period ” shall mean any Tax period beginning after the Closing Date and that portion of any Straddle Period beginning after the Closing Date.

 

“ Pre-Closing Tax Period ” shall mean any Tax period ending on or before the Closing Date and the portion of any Straddle Period ending on the Closing Date.

 

“ Proprietary Rights ” shall mean all Copyrights, Patents, Trademarks, technology rights and licenses, computer software (including without limitation any source or object codes therefor or documentation relating thereto), trade secrets, franchises, know-how, goodwill, inventions, designs, specifications, plans, drawings and intellectual property rights, now known or hereafter recognized in any jurisdiction throughout the world which were (i) owned by, or exclusively licensed to, Seller as of the date of this Agreement, whether related to the Business or otherwise, or (ii) acquired by, or exclusively licensed to, Seller following the date of this agreement in connection with any settlements or judicial resolution of any claims, actions or disputes related to the Business.

 

“ Purchasing Entities ” shall mean Tessera Hungary and Tessera Israel.

 

“ Regulations ” shall mean any applicable laws, statutes, ordinances, regulations, rules, notice requirements, court decisions, agency guidelines, principles of law and orders of any foreign, federal, state or local government and any other governmental department or agency, including without limitation Environmental Laws, energy, motor vehicle safety, public utility, zoning, building and health codes, occupational safety and health and laws respecting employment practices, employee documentation, terms and conditions of employment and wages and hours.

 

“ Representative ” shall mean any officer, director, principal, attorney, agent, employee or other representative.

 

“ Straddle Period ” shall mean any Tax period beginning before and ending after the Closing Date.

 

“ Subsidiary ” shall mean (a) any corporation or similar entity in an unbroken chain of corporations beginning with Seller if each of the corporations other than the last corporation in the unbroken chain then owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain, (b) any partnership in which Seller is a general partner, or (c) any partnership in which Seller possesses a 50% or greater interest in the total capital or total income of such partnership.

 

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“ Tax ” or “ Taxes ” shall mean any federal, state, local, foreign or other tax, levy, impost, fee, assessment or other government charge, including without limitation Israeli stamp tax, income, estimated income, capital gains tax, value added tax, Israeli social security payments, Israeli national health insurance payments, business, occupation, franchise, property, payroll, personal property, sales, transfer, use, employment, commercial rent, occupancy, franchise or withholding taxes, and any premium, including without limitation interest, penalties and additions in connection therewith.

 

“ Tax Return ” shall mean any return, declaration, report, claim for refund, information return or statement relating to any Taxes, including any schedule or attachment thereto and including any amendment thereof.

 

“ Tessera Hungary ” shall mean Tessera Technologies Hungary Holding Limited Liability Company, a Hungarian company and indirect wholly owned subsidiary of Buyer.

 

“ Tessera Israel ” shall mean Tessera Israel Ltd., an Israeli corporation and indirect wholly owned subsidiary of Buyer.

 

“ Trademarks ” shall mean registered trademarks, registered service marks, trademark and service mark applications and unregistered trademarks and service marks.

 

“ Warrants ” shall mean (a) agreements, rights to subscribe (including any preemptive rights), options, warrants, calls, commitments or rights of any character to purchase or otherwise acquire any common stock or other securities of Seller, and (b) outstanding securities of Seller that are convertible into or exchangeable for capital shares or other securities of Seller.

 

“ Year-End Financial Statements ” shall mean the audited Balance Sheets dated December 31, 2004 and December 31, 2003, and the related audited consolidated statements of operations, changes in shareholders’ equity and cash flow for the year ended December 31, 2004.

 

1.2. Other Defined Terms . The following terms shall have the meanings defined for such terms in the Sections set forth below:

 

 

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ARTICLE II.

 

PURCHASE AND SALE OF ASSETS

 

2.1. Transfer of Assets . Upon the terms and subject to the conditions contained herein, at the Closing, Seller will sell, convey, transfer, assign and deliver to Buyer, and Buyer will acquire from Seller, the Assets, free and clear of all Encumbrances.

 

2.2. Assumption of Liabilities . Upon the terms and subject to the conditions contained herein, at the Closing, Buyer shall assume the following, and only the following, Liabilities of Seller (the “ Assumed Liabilities ”):

 

(a) All Liabilities accruing, arising out of, or relating to events or occurrences happening after the Closing Date under the Contracts listed on Appendix A and the Leases listed on Schedule 4.6 , but not including any Liability for any Default under any such Contract occurring on or prior to the Closing Date; and

 

(b) All Liabilities in respect of Rehired Employees and beneficiaries of Rehired Employees arising on or after the Closing Date, except to the extent that the same constitute Excluded Liabilities or as otherwise provided herein to be retained by Seller; and

 

2.3. Excluded Liabilities . Notwithstanding any other provision of this Agreement, except for the Assumed Liabilities expressly specified in Section 2.2 , Buyer shall not assume, or otherwise be responsible for, any Liabilities of Seller, whether liquidated or unliquidated, or known or unknown, whether arising out of occurrences prior to, at or after the date hereof (“ Excluded Liabilities ”), which Excluded Liabilities include, without limitation:

 

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(a) Except as otherwise provided in Section 6.6 , any Liability to or in respect of any employees or consultants or former employees or consultants of Seller including without limitation (i) any employment, severance, retention or termination agreement, whether or not written, between Seller and any person, (ii) any Liability under any Employee Plan at any time maintained, contributed to or required to be contributed to by or with respect to Seller or any affiliate or under which Seller or any affiliate may incur Liability, or any contributions, benefits or Liabilities therefor, or any Liability with respect to Seller’s or any affiliate’s withdrawal or partial withdrawal from or termination of any Employee Plan and (iii) any claim and/or demand relating to any period prior to the Closing in connection with employment related matters;

 

(b) Any Liability of Seller in respect of any Tax (including any liability for the Taxes of any other Person (i) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign law), (ii) as a transferee or successor, (iii) by contract (including without limitation, pursuant to this Agreement), or (iv) otherwise), or any Liability for any Taxes attributable to the Business or the Assets other than Taxes that are “Apportionable Obligations” and that are apportioned to the Buyer pursuant to Section 10.2(f) hereof;

 

(c) Any Liability arising from any injury to or death of any person or damage to or destruction of any property, whether based on negligence, breach of warranty, strict liability, enterprise liability or any other legal or equitable theory arising from defects in products manufactured or from services performed by or on behalf of Seller or any other person or entity on or prior to the Closing Date;

 

(d) Any Liability of Seller arising out of or related to any Action against Seller or any Action which adversely affects the Assets or the Business and which shall have been asserted on or prior to the Closing Date or which relates to the period prior to the Closing Date;

 

(e) Any Liability of Seller resulting from entering into, performing its obligations pursuant to or consummating the transactions contemplated by, this Agreement (including without limitation any Liability of Seller pursuant to Article X hereof);

 

(f) Any Liability on the Closing Statement;

 

(g) Any Liability related to any Former Facility;

 

(h) Any Liability of any Subsidiary owed to Seller;

 

(i) Any Liability of the Seller owed to any Subsidiary;

 

(j) Any Liability related to the Key License Agreements;

 

(k) Any Liability related to the Excluded Assets;

 

(l) Any Liability related to Seller’s provision of warranties, indemnities or service in relation to the Business;

 

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(m) Any Liability with respect to Seller’s creditors, suppliers or customers; and

 

(n) Any Liability with respect to Seller’s shareholders or any other equity holders and holders of rights to acquire equity securities of Seller (including without limitation, pursuant for any employee stock option plans); and.

 

(o) Any other Liability not explicitly assumed by the Buyer pursuant to this Agreement.

 

2.4. Purchase Price .

 

(a) Purchase Price . At the Closing, upon the terms and subject to the conditions set forth herein, Buyer shall pay to Seller for the sale, transfer, assignment, conveyance and delivery of the Assets, the aggregate amount of Thirty Million Three Hundred Ninety Thousand Dollars ($30,390,000), (the “ Purchase Price ”), less the Holdback Amount, by wire transfer of immediately available funds to an account designated by Seller and shall assume the Assumed Liabilities pursuant to this Agreement. If Seller receives any payment from China WLCSP and at any time through the Closing Date, the amount of such payment shall be deducted from the Purchase Price payable by Buyer. The Purchase Price shall be allocated among the Assets in the manner required by Section 1060 of the Code and regulations thereunder. Exhibit B attached hereto sets forth the amount of the Purchase Price allocable to the various Assets to be purchased by the Purchasing Entities, and the amount of the Purchase Price to be paid by each Purchasing Entity (the “ Allocation ”). The Allocation shall be revised to reflect any adjustments to Purchase Price hereunder. Buyer and Seller agree to (i) be bound by the Allocation, as may be adjusted pursuant to the foregoing sentence, (ii) act in accordance with the Allocation in the preparation of all financial statements and the filing of all Tax Returns (including, without limitation, filing Form 8594 with their United States federal income Tax Return for the taxable year that includes the Closing Date to the extent required by applicable law) and in the course of any Tax audit, Tax review or Tax litigation relating thereto, and (iii) take no position and cause their Affiliates to take no position inconsistent with the Allocation for income Tax purposes, including United States federal and state income Tax and foreign income Tax, unless otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code. Not later than thirty (30) days prior to the filing of their respective Forms 8594 relating to this transaction, each of the Buyer and Seller shall deliver to the other a copy of its Form 8594.

 

(b) The “ Holdback Amount ” shall be an amount equal to Six Million Dollars ($6,000,000) which Buyer, at the Closing, shall, pursuant to the Indemnification Escrow Agreement, deliver to the Escrow Agent named therein (the “ Escrow Agent ”), pending determination of Seller’s indemnification obligations, if any, as set forth in Section 10.4 .

 

(c) Withholding . All amounts payable by Buyer to Seller pursuant to the terms of this Agreement, including, without limitation, the Purchase Price, shall be subject to applicable Israeli Tax withholding requirements, unless Seller shall provide Buyer a copy of a valid approval of the Israeli tax authorities establishing an exemption from such Tax withholding obligations, to the reasonable satisfaction of Buyer. To the extent that amounts are withheld from any payment, such amounts shall be treated for all purposes of this Agreement as having been paid to the Seller.

 

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2.5. Closing Costs; Transfer Taxes and Fees .

 

(a) Seller shall be responsible for any documentary and transfer taxes and any sales, use, value added tax or other taxes imposed by reason of the transfers of Assets (collectively, “ Transfer Taxes ”) provided hereunder and any deficiency, interest or penalty asserted with respect thereto. Seller shall pay the fees and costs of recording or filing all applicable conveyancing instruments described in Section 3.2(a) . In addition, Seller shall pay all costs and fees relating to obtaining any and all consents required for the consummation of the transaction contemplated by this Agreement, other than as provided in this Section 2.6 below. Buyer and Seller shall each be responsible for one half (50%) of any stamp tax imposed in connection with this Agreement. Buyer shall pay to the Office of the Chief Scientist in the Israeli Ministry of Industry and Commerce (the “ OCS ” ) the amount specified by OCS in response to Seller’s application letter of September 14 ^th , 2005 and arising from the completion of the transactions contemplated by this Agreement, up to a maximum of Three Million Dollars ($3,000,000).

 

(b) At the Closing, Seller shall issue and deliver to Buyer invoices specifying, in accordance with the Allocation, the amount paid by Buyer for the Assets, supplemented by applicable Israeli value added tax. Buyer shall submit the invoices to the Israeli Tax Authority as soon as practicable thereafter and, within ten (10) business days following Buyer’s receipt from the Israeli Tax Authority of amounts equal to the value added tax paid by Seller in respect of the transactions contemplated by this Agreement, Buyer shall deliver all such amounts to Seller.

 

2.6. Purchasing Entities . For the purposes of this Article II, the term “Buyer” shall include the Purchasing Entities. At the Closing, (i) each Purchasing Entity shall purchase such Assets as are indicated on Exhibit A , and shall pay that portion of the Purchase Price as is indicated on Exhibit B , and (ii) Tessera Israel shall assume the Assumed Contracts and Assumed Liabilities. For the avoidance of doubt, at the Closing, Tessera Hungary shall purchase all of the Proprietary Rights, and Buyer will not purchase any of the Assets or assume any of the Assumed Liabilities.

 

ARTICLE III.

 

CLOSING

 

3.1. Closing . The Closing of the transactions contemplated herein (the “ Closing ”) shall be held at 10:00 a.m. local time on the Closing Date at the offices of Latham & Watkins LLP, 505 Montgomery Street, Suite 2000, San Francisco, CA 94111, unless the parties hereto otherwise agree.

 

3.2. Conveyances at Closing .

 

(a) Instruments and Possession . To effect the sale and transfer referred to in Section 2.1 hereof, Seller will, at the Closing, execute and deliver to Buyer:

 

(i) one or more bills of sale, in the form attached hereto as Exhibit C , conveying in the aggregate all of Seller’s owned personal property included in the Assets;

 

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(ii) subject to Sections 6.11 and 9.2 , Assignments of Lease in the form attached hereto as Exhibit D with respect to the Leases;

 

(iii) subject to Sections 6.11 and 9.2 , Assignments of Contract Rights, each in the form of Exhibit E attached hereto, with respect to the Contract Rights;

 

(iv) Assignments of Patents, Trademarks and other Proprietary Rights (including an assignment of all of Seller’s rights, title and interest to the name Shellcase, and all variations thereof) each in the form attached hereto as Exhibit F , in recordable form to the extent necessary to assign such rights;

 

(v) Indemnification Escrow Agreement in the form attached hereto as Exhibit I ;

 

(vi) License and Services Agreement in the form attached hereto as Exhibit J ;

 

(vii) such other instruments as shall be reasonably requested by Buyer to vest in Buyer title in and to the Assets in accordance with the provisions hereof.

 

(b) Assumption Document . Upon the terms and subject to the conditions contained herein, at the Closing Buyer shall deliver to Seller an instrument of assumption substantially in the form attached hereto as Exhibit G , evidencing Buyer’s assumption, pursuant to Section 2.2 , of the Assumed Liabilities (the “ Assumption Document ”).

 

(c) Form of Instruments . To the extent that a form of any document to be delivered hereunder is not attached as an Exhibit hereto, such documents shall be in form and substance, and shall be executed and delivered in a manner, reasonably satisfactory to Buyer.

 

(d) Certificates; Opinions . Buyer and Seller shall deliver the certificates, opinions of counsel and other matters described in Articles VII and VIII .

 

(e) Consents . Subject to Sections 6.11 and 9.2 , Seller shall deliver all Permits and any other third party consents required for the valid transfer of the Assets and Business as contemplated by this Agreement.

 

ARTICLE IV.

 

REPRESENTATIONS AND WARRANTIES OF SELLER

 

Seller hereby represents and warrants to Buyer as follows, except as otherwise set forth on the Disclosure Schedule, which representations and warranties are, as of the date hereof, true and correct:

 

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4.1. Organization of Seller . Seller is a corporation duly organized and validly existing under the laws of the State of Israel with full corporate power and authority to conduct its business as it is presently being conducted and to own and lease its properties and assets. Seller is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where the character of its properties owned or leased or the nature of its activities make such qualification necessary, except where the failure to be so qualified or in good standing would not have a material adverse effect on the Assets or the Business. Copies of the updated Articles of Association and Memorandum of Association of Seller attached hereto as Exhibits K and L , respectively, are accurate and complete as of the date hereof. Schedule 4.1 contains a true, correct and complete list of all jurisdictions in which Seller is qualified to do business as a foreign corporation.

 

4.2. Subsidiaries . Except as set forth in Schedule 4.2 , Seller does not have any Subsidiaries which are used by Seller in the conduct of the Business or otherwise, or which own any of the Assets or Joint Ventures. Other than the Subsidiaries and Joint Ventures, Seller has no direct or indirect stock or other equity or ownership interest (whether controlling or not) in any corporation, association, partnership, joint venture or other entity. Each of the Subsidiaries listed on Schedule 4.2 , is a corporation duly organized, validly existing and in good standing (or appropriately recognized as legally in existence and active under the laws of its jurisdiction) under the laws of the jurisdiction identified on Schedule 4.2 and has the requisite power and authority to conduct its business as it is presently being conducted and to own and lease its properties and Assets. No other corporate proceedings on the part of any Subsidiary are necessary to authorize this Agreement and the transactions contemplated hereby. Schedule 4.2 contains a true, correct and complete list of all jurisdictions in which each Subsidiary is qualified to do business as a foreign corporation. Each of the Subsidiaries is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where the character of its properties owned or leased or the nature of its activities make such qualification necessary. Copies of the Certificate or Articles of Incorporation and Bylaws of each Subsidiary heretofore delivered to Buyer are accurate and complete. Schedule 4.2 sets forth a description of all of the issued and outstanding equity securities of each of the Subsidiaries. Seller owns of record and beneficially all of the issued and outstanding capital or other stock of each Subsidiary free and clear of any Encumbrances. There are no Warrants with respect to the equity securities of any Subsidiary.

 

4.3. Authorization . Seller has all requisite corporate power and authority, and has taken all corporate action necessary, to execute and deliver this Agreement and the Ancillary Agreements, to consummate the transactions contemplated hereby and thereby and to perform its obligations hereunder and thereunder. The execution and delivery of this Agreement and the Ancillary Agreements by Seller and the consummation by Seller of the transactions contemplated hereby and thereby have been duly approved by the board of directors and shareholders of Seller. No other corporate proceedings on the part of Seller are necessary to authorize this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby. This Agreement has been duly executed and delivered by Seller and is, and upon execution and delivery of the Ancillary Agreements will be, legal, valid and binding obligations of Seller enforceable against it in accordance with its terms.

 

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4.4. Absence of Certain Changes or Events . Since the Interim Balance Sheet Date, there has not been any:

 

(a) actual or threatened material adverse change in the financial condition, working capital, shareholders’ equity, assets, Liabilities, reserves, revenues, income earnings, prospects or Business of Seller;

 

(b) change in accounting methods, principles or practices by Seller affecting the Assets, its Liabilities or the Business;

 

(c) revaluation by Seller of any of the Assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable;

 

(d) damage, destruction or loss (whether or not covered by insurance) adversely affecting the Assets or the Business;

 

(e) cancellation of any indebtedness or waiver or release of any right or claim of Seller relating to its activities or properties which had or will have a material adverse effect on the Assets or the Business;

 

(f) increase in the rate of compensation payable or to become payable to any officer or other employee of Seller or any consultant, Representative or agent of Seller, including without limitation the making of any loan to, or the payment, grant or accrual of any bonus, incentive compensation, service award or other similar benefit to, any such person, other than increases, payments, grants or accruals made in the ordinary course of business and in accordance with the normal practices of Seller;

 

(g) adoption of, addition to, modification of, or contribution to any Employee Plan, arrangement, or practice described in the Disclosure Schedule other than (i) additions, modifications or contributions made in the ordinary course of business and in accordance with the normal practices of Seller or (ii) as required by applicable law;

 

(h) adverse change in employee relations which has or is reasonably likely to have adverse effect on the productivity, the financial condition, results of operations or Business of Seller or the relationships between the employees of Seller and the management of Seller;

 

(i) amendment, cancellation or termination of any Contract, commitment, agreement, Lease (except for Facility Leases as contemplated by Section 6.11 ), transaction or Permit relating to the Assets or the Business or entry into any Contract, commitment, agreement, Lease, transaction or Permit which is not in the ordinary course of business, including without limitation any employment or consulting agreements;

 

(j) mortgage, pledge or other encumbrance of any Assets, except purchase money mortgages arising in the ordinary course of business;

 

(k) sale, assignment or transfer of any of the Assets, other than in the ordinary course of business;

 

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(l) incurrence of indebtedness by Seller for borrowed money or commitment to borrow money entered into by Seller, or loans made or agreed to be made by Seller, or indebtedness guaranteed by Seller;

 

(m) incurrence by Seller of Liabilities, except Liabilities incurred in the ordinary course of business, or increase or change in any assumptions underlying or methods of calculating, any doubtful account contingency or other reserves of Seller;

 

(n) payment, discharge or satisfaction of any Liabilities of Seller other than the payment, discharge or satisfaction in the ordinary course of business of Liabilities set forth or reserved for on the Interim Financial Statements or incurred in the ordinary course of business;

 

(o) capital expenditure by Seller, the execution of any Lease by Seller or the incurring of any obligation by Seller to make any capital expenditure or execute any Lease;

 

(p) failure to pay or satisfy when due any Liability of Seller, except where the failure would not have a material adverse effect on the Assets or the Business;

 

(q) failure of Seller to carry on diligently the Business in the ordinary course so as to keep available to Buyer the services of Seller’s employees, and to preserve for Buyer the Assets and the Business and the goodwill of Seller’s suppliers, customers, distributors and others having business relations with it;

 

(r) disposition or lapsing of any Proprietary Rights or any disposition or disclosure to any person of any Proprietary Rights not theretofore a matter of public knowledge;

 

(s) existence of any other event or condition which in any one case or in the aggregate has or might reasonably be expected to have a material adverse effect on the Assets or the Business;

 

(t) adoption or change in any election in respect of Taxes, adoption or change in any material accounting method in respect of Taxes, entering into any Tax allocation agreement, Tax ruling, Tax-sharing agreement, Tax indemnity agreement or closing agreement, settlement or compromise in respect of any claim, notice, audit report or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;

 

(u) agreement by Seller to do any of the things described in the preceding clauses (a) through (t) other than as expressly provided for herein.

 

4.5. Assets . Excluding the Leased Real Property, Seller has and will transfer good and marketable title to the Assets and upon the consummation of the transactions contemplated hereby, Buyer will acquire good and marketable title to all of the Assets, free and clear of any Encumbrances. The Assets, together with the rights under the Contracts listed on Schedule 4.7 include without limitation all assets necessary for the conduct of the Business. Schedule 4.5 contains accurate lists and summary descriptions of all tangible Assets where the value of an individual item exceeds $1,000 or where an aggregate of similar items exceeds $5,000. All tangible assets and properties which are part of the Assets are in good operating condition and

 

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repair (ordinary wear and tear excepted) and are usable in the ordinary course of business and conform in all material respects to all applicable Regulations (including Environmental Laws) relating to their construction, use and operation.

 

4.6. Facilities . Schedule 4.6 contains a complete and accurate list of all Facility Leases.

 

(a) Actions . There are no pending or, to the best knowledge of Seller, threatened condemnation proceedings or other Actions relating to any Facility.

 

(b) Leases or Other Agreements . Except for Facility Leases listed on Schedule 4.6 , there are no leases, subleases, licenses, occupancy agreements, options, rights, concessions or other agreements or arrangements, written or oral, granting to any person the right to purchase, use or occupy any Facility, or any real property in connection with the Business or any portion thereof or interest in any such Facility or real property.

 

(c) Facility Leases and Leased Real Property . With respect to each Facility Lease, Seller has and will transfer to Buyer at the Closing an unencumbered interest in the Leasehold Estate, or shall sublet such premises to Buyer at the Closing, in accordance with Section 6.11 . Seller enjoys peaceful and undisturbed possession of all the Leased Real Property.

 

(d) Certificate of Occupancy . All Facilities have received all required approvals of governmental authorities (including without limitation Permits and a certificate of occupancy or other similar certificate permitting lawful occupancy of the Facilities) required in connection with the operation thereof and have been operated and maintained in accordance with applicable Regulations.

 

(e) Utilities . All Facilities are supplied with utilities (including without limitation water, sewage, disposal, electricity, gas and telephone) and other services necessary for the operation of such Facilities as currently operated, and there is no condition which would reasonably be expected to result in the termination of the present access from any Facility to such utility services.

 

(f) Improvements, Fixtures and Equipment . The Facilities and all improvements constructed on the Facilities, including without limitation all Leasehold Improvements, and all Fixtures and Equipment and other tangible assets owned, leased or used by Seller at the Facilities are (i) insured to the extent and in a manner customary in the industry, (ii) structurally sound with no known material defects, (iii) in good operating condition and repair, subject to ordinary wear and tear, (iv) not in need of maintenance, repair or correction except for ordinary routine maintenance and repair, the cost of which would not be material, (v) sufficient for the operation of the Business as presently conducted and (vi) in conformity with all applicable Regulations.

 

(g) No Special Assessment . Seller has not received notice of any special assessment relating to any Facility or any portion thereof and there is no pending or threatened special assessment.

 

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4.7. Contracts and Commitments .

 

(a) Contracts . Schedule 4.7 sets forth a complete and accurate list of all Contracts of the following categories:

 

(i) Contracts not made in the ordinary course of business;

 

(ii) Employment contracts and severance agreements, including without limitation Contracts (A) to employ or terminate executive officers or other personnel and employees and other contracts with present or former officers or directors of Seller or (B) that will result in the payment by, or the creation of any Liability to pay on behalf of Buyer any severance, termination, “golden parachute,” or other similar payments to any present or former personnel following termination of employment or otherwise as a result of the consummation of the transactions contemplated by this Agreement;

 

(iii) Labor or union contracts;

 

(iv) Distribution, franchise, license, technical assistance, joint venture, sales, commission, consulting, agency or advertising contracts related to the Assets or the Business and which are not cancelable on thirty (30) calendar days notice;

 

(v) Options with respect to any property, real or personal, whether Seller shall be the grantor or grantee thereunder;

 

(vi) Contracts involving future expenditures or Liabilities, actual or potential, in excess of $10,000 per month or otherwise material to the Business or the Assets and not cancelable (without Liability) within 30 calendar days;

 

(vii) Contracts or commitments relating to commission arrangements with others;

 

(viii) Promissory notes, loans, agreements, indentures, evidences of indebtedness, letters of credit, guarantees, or other instruments relating to an obligation to pay money, individually in excess of or in the aggregate in excess of $5,000, whether Seller shall be the borrower, lender or guarantor thereunder or whereby any Assets are pledged (excluding credit provided by Seller in the ordinary course of business to purchasers of its products or provided to Seller in the ordinary course of business by its suppliers);

 

(ix) Contracts containing covenants limiting the freedom of Seller or any officer, director, shareholder or affiliate of Seller, to engage in any line of business or compete with any person;

 

(x) Any Contract with the United States, state or local government or any agency or department thereof or any Israeli or other foreign governmental authority or any subdivision thereof;

 

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(xi) Leases of real property;

 

(xii) Leases of personal property not cancelable (without Liability) within 30 calendar days;

 

(xiii) Key License Agreements; and

 

(xiv) All other agreements relating to Seller’s Proprietary Rights and any third party intellectual property rights licensed to Seller on a non-exclusive basis.

 

Seller has delivered to Buyer true, correct and complete copies of all of the Contracts listed on Schedule 4.7 , including all amendments and supplements thereto.

 

(b) Absence of Defaults . All of the Contracts and Leases to which Seller is party or by which it or any of the Assets is bound or affected are valid, binding and enforceable in accordance with their terms. Seller has fulfilled, or taken all action necessary to enable it to fulfill when due, all of its material obligations under each of such Contracts and Leases. To Seller’s knowledge, all parties to such Contracts and Leases have complied in all material respects with the provisions thereof, no party is in Default thereunder and no notice of any claim of Default has been given to Seller. Seller has no reason to believe that the products and services called for by any unfinished Contract cannot be supplied in accordance with the terms of such Contract, including time specifications. With respect to any Leases, Seller has not received any notice of cancellation or termination under any option or right reserved to the lessor, or any notice of Default, thereunder.

 

(c) Product Warranty . Seller has committed no act or omission, which may result in product liability or Liability for breach of warranty (whether covered by insurance or not) on the part of Seller, with respect to products designed, manufactured, assembled, repaired, maintained, delivered or installed or services rendered by Seller.

 

(d) Leases . Schedule 4.7 also contains a complete and accurate description of the terms of all Leases described in clauses (xi) and (xii), including without limitation a general description of the leased property or items, the term, the annual rent, any and all renewal options, and any requirements for the consent of third parties to assignments thereof.

 

4.8. Permits; Grants . (a)  Schedule 4.8 sets forth a complete list of all Permits used in the operation of the Business or otherwise held by Seller. Except as set forth on Schedule 4.8 , to its knowledge Seller has, and at all times has had, all Permits required under any Regulation (including Environmental Laws) in the operation of its Business or in the ownership of the Assets, and owns or possesses such Permits free and clear of all Encumbrances. Seller is not in Default, nor has it received any notice of any claim of Default, with respect to any such Permit. Except as otherwise governed by law, all such Permits are renewable by their terms or in the ordinary course of business without the need to comply with any special qualification procedures or to pay any amounts other than routine filing fees and, other than the requirement to have it transferred to the name of Buyer, will not be adversely affected by the completion of the transactions contemplated by this Agreement. No present or former shareholder, director, officer or employee of Seller or any affiliate thereof, or any other person, firm, corporation or other entity, owns or has any proprietary, financial or other interest (direct or indirect) in any Permit which seller owns, possesses or uses.

 

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(b) Other than in connection with the approval from the OCS or the Investment Center in the Israeli Ministry of Industry and Commerce (the “ Investment Center ”) to the transactions contemplated herein, and except as disclosed on Schedule 4.8 hereto, no notice to, declaration, filing or registration with, or Permit from, any domestic or foreign governmental or regulatory body or authority is required to be made or obtained by Seller in connection with the execution, delivery or performance of this Agreement and the consummation of the transactions contemplated hereby.

 

(c) Schedule 4.8 sets forth a complete list of all pending and outstanding grants, incentives, exemptions and subsidies related to the Business (collectively, “ Grants ”) from the government of the State of Israel or any agency thereof, or from any non-Israeli governmental or administrative agency, granted to the Seller, including, without limitation, from the Investment Center and the OCS. Seller has made available to Buyer, prior to the date hereof, correct copies of all documents evidencing Grants submitted by such Seller and of all letters of approval, and supplements thereto, granted to such Seller, together with Seller’s reasonable estimate, with all applicable documentation, of amounts to be paid by Seller to OCS in connection with the consummation of the transactions contemplated by this Agreement. Without limiting the generality of the above, Schedule 4.8 includes the aggregate amounts of each Grant, the amounts already received under such Grant, the amount to be received under such Grant, and the aggregate outstanding obligations thereunder of Seller with respect to royalties or any other payments, including outstanding amounts (including interest) to be paid by the Seller to the OCS. Notwithstanding the foregoing, in the event that the written approval by the OCS of the transactions contemplated by this Agreement referenced in Section 6.8 shall have been delivered to Buyer prior to the delivery of the Disclosure Schedules as provided by Section 6.18, Schedule 4.8 shall omit the information required by this Section 4.8 with respect to the OCS. Seller is in compliance with the terms and conditions of their respective Grants and has duly fulfilled all the undertakings relating thereto. To Seller’s knowledge, there is no event or other set of circumstances which could reasonably be expected to lead to the revocation or material modification of any of the Grants. Neither the execution, delivery and performance of this Agreement by Seller nor the consummation by Seller of the transactions contemplated hereby, assuming for the purposes of this sentence receipt of the approvals of the OCS and the Investment Center, will contravene, conflict with or result in a violation of any of the terms or requirements of, or give any governmental authority the right to revoke, withdraw, suspend, cancel, terminate, accelerate, modify or exercise any right or remedy or require any refund or recapture with respect to, any Grant given by any governmental entity (or any benefit provided or available thereunder).

 

4.9. No Conflict or Violation . Neither the execution, delivery or performance of this Agreement nor the consummation of the transactions contemplated hereby, nor compliance by Seller with any of the provisions hereof, will (a) violate or conflict with any provision of the Articles of Association or Memorandum of Association of Seller, (b) violate, conflict with, or result in or constitute a Default under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, or result in the creation of any Encumbrance upon any of the Assets under, any of the terms, conditions or

 

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provisions of any Contract, Lease or Permit, (i) to which Seller is a party or (ii) by which the Assets are bound, (c) violate any Regulation or Court Order, (d) impose any Encumbrance on the Assets or the Business.

 

4.10. Financial Statements . The Financial Statements are attached hereto as Schedule 4.10 . The Financial Statements (a) are in accordance with the books and records of Seller, (b) have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods covered thereby and (c) present the consolidated assets, Liabilities (including all reserves) and financial position of Seller and its Subsidiaries as of the respective dates thereof and the consolidated results of operations and changes in cash flows for the periods then ended (subject, in the case of the Interim Financial Statements, to normal year-end adjustments) in accordance with generally accepted accounting principles as applied in the United States. The Year-End Financial Statements have been examined by Ernst & Young, Independent Registered Public Accounting Firm, whose report thereon is included with such Year-End Financial Statements. At the respective dates of the Financial Statements, there were no Liabilities of Seller or its Subsidiaries, which, in accordance with generally accepted accounting principles, should have been set forth or reserved for in the Financial Statements or the notes thereto, which are not set forth or reserved for in the Financial Statements or the notes thereto.

 

4.11. Books and Records . Seller has made and kept (and given Buyer access to) Books and Records and accounts, which, in reasonable detail, accurately and fairly reflect the activities of Seller. The minute books of Seller previously delivered to Buyer fully, accurately and adequately reflect all action previously taken by the shareholders, board of directors and committees of the board of directors of Seller. The copies of the stock book records of Seller previously delivered to Buyer are true, correct and complete, and accurately reflect all transactions effected in Seller’s stock through and including the date hereof. Seller has not engaged in any transaction, maintained any bank account or used any corporate funds except for transactions, bank accounts and funds which have been and are reflected in the normally maintained books and records of Seller.

 

4.12. Litigation . Except as set forth on Schedule 4.12 , there are no Actions pending, threatened or anticipated (a) against, related to or affecting (i) Seller, the Business or the Assets (including with respect to Environmental Laws), (ii) any officers or directors of Seller as such, or (iii) any shareholder of Seller in such shareholder’s capacity as a shareholder of Seller, (b) seeking to delay, limit or enjoin the transactions contemplated by this Agreement (c) that involve the risk of criminal liability, or (d) in which Seller is a plaintiff, including any derivative suits brought by or on behalf of Seller. Seller is not in Default with respect to or subject to any Court Order, and there are no unsatisfied judgments against Seller, the Business or the Assets. There are no Court Orders or agreements with, or liens by, any governmental authority or quasi-governmental entity which regulate, obligate, bind or in any way affect Seller or any Facility or Former Facility.

 

4.13. Labor Matters.

 

(a) Except as set forth in Schedule 4.13 , Seller is in compliance in all material respects with all applicable laws (including, without limitation, the Severance Pay Law, – 1963,

 

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the Protection of Salary Law – 1958, the Minimum Wage Law – 1987, Annual Vacation Law, 1951, Working and Rest Hours Law, 1951, the Equal Opportunities in Labor Law – 1988, the Employment of Employees by Manpower Contractors Law – 1996 and Women Labour Law, 1954), policies, custom, procedures and agreements relating to employment, terms and conditions of employment and to the proper withholding and remission to the proper tax authorities of all sums required to be withheld from any employee and/or consultant of Seller, and Seller has paid in full (or has fully contributed to funds managed on behalf of its employees) to all of its employees, officers, directors, consultants and service providers all compensation, wages, salaries, commissions, bonuses, Benefits (as defined below) and other compensation due and payable to such employees and/or independent contractors. All the Benefits to which any employee or consultant or former employee or consultant is or may be entitled including, inter alia, severance pay, accrued and unpaid vacation days, convalescence pay, leave and health, have been paid or fully funded or duly reserved for in the Financial Statements. Except as set forth in Schedule 4.13 , all contributions to benefit plans (including employer contributions and employee salary reduction contributions), including insurance and education funds, that are due as of the Closing Date have been fully contributed.

 

(b) Except as set forth in Schedule 4.13 , neither the Seller nor to the Seller’s knowledge, any officer, director, employee, consultant or independent contractor of the Seller is in violation of any term of any material, employment, consulting, independent contractor, non-disclosure, non-competition, inventions assignment or any other contract relating to the relationship of such officer, director, employee, consultant or independent contractor with the Seller.

 

(c) Except as set forth in Schedule 4.13 , the Seller is not a member in any employers’ organization and no claim or request has been made towards the Seller by any employers’ organization. Except as set forth in Schedule 4.13 , the Seller is not, nor has it been in the past, a party to, or bound by, any collective bargaining agreement or union contract or extension order (excluding such extension orders that apply to all employers in the Israeli market) and no such collective bargaining agreement is being negotiated by Seller. No labor union or other representative organization has been certified or recognized as the collective bargaining representative of any employees of the Seller. To the Seller’s knowledge, there are no existing or threatened labor strikes, work stoppages, organized slowdowns, unfair labor practice charges or complaints or labor arbitration proceedings to which any employee or consultant of the Seller is a party. Except as set forth in Schedule 4.13 , the Seller has not experienced any such labor controversy within the past five (5) years.

 

(d) There is no unfair labor practice complaints or other Actions pending or, to the knowledge of the Seller, threatened against the Seller or any of its subsidiaries before any labor tribunal. Except as set forth in Schedule 4.13 , there are no complaints or other Actions pending or, to the knowledge of the Seller, threatened by or on behalf of any present or former employee, contractor, consultant or service provider of the Seller or any of its subsidiaries alleging breach of any express or implied contract.

 

(e) Except as contemplated by this Agreement, no officer, director or other key personnel of the Seller has informed any officer of the Seller that such individual will terminate his or her employment or engagement with the Seller prior to, or within 180 days following, the Closing Date.

 

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4.14. Employee Benefit and Stock Option Plans .

 

(a) Employee Equity and Options . Set forth in Schedule 4.14 is a complete and accurate list of all currently outstanding equity of Seller issued to, and options to acquire any such equity currently held by, officers, directors, employees or consultants of Seller, indicating the number of shares covered, the name and title (or relationship) of the holder, the vesting schedule of each such option and all such shares and exercise prices therefor. Except as set forth th