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EXHIBIT 2.2
GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
BETWEEN
LSI LOGIC CORPORATION
AND
LSI LOGIC STORAGE SYSTEMS, INC.
DECEMBER 31, 2003
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TABLE OF CONTENTS
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PAGE
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ARTICLE I CONTRIBUTION AND
ASSUMPTION............................. 1
1.1 Contribution of Assets
and Assumption of Liabilities........ 1
1.2 SSI
Assets..................................................
2
1.3 SSI
Liabilities.............................................
2
1.4 Methods of Transfer
and Assumption.......................... 3
1.5 Governmental Approvals
and Consents......................... 4
1.6 Nonrecurring Costs and
Expenses............................. 5
1.7 Novation of Assumed
SSI Liabilities......................... 5
1.8 Shared Contracts and
Certain SSI Contracts.................. 5
1.9 LSI Logic
Contracts......................................... 6
ARTICLE II
MISCELLANEOUS..........................................
6
2.1 Limitation of
Liability..................................... 6
2.2 Entire
Agreement............................................ 6
2.3 Governing
Law............................................... 6
2.4 Dispute
Resolution.......................................... 6
2.5
Notices.....................................................
6
2.6
Counterparts................................................
7
2.7 Binding Effect;
Assignment.................................. 7
2.8
Severability................................................
7
2.9 Failure or Indulgence
Not Waiver; Remedies Cumulative....... 7
2.10
Amendment...................................................
7
2.11
Interpretation..............................................
7
2.12 Conflicting
Agreements...................................... 8
ARTICLE III
DEFINITIONS........................................... 8
3.1
Action......................................................
8
3.2 Ancillary
Agreement......................................... 8
3.3
Assets......................................................
8
3.4
Contracts...................................................
9
3.5
Dispute.....................................................
9
3.6
Distribution................................................
9
3.7 Distribution
Date........................................... 9
3.8 Employee Matters
Agreement.................................. 9
3.9 Excluded
Assets............................................. 9
3.10 Excluded
Liabilities........................................ 9
3.11 Governmental
Approvals...................................... 9
3.12 Governmental
Authority...................................... 9
3.13 Indemnification and
Insurance Matters Agreement............. 9
3.14 Insurance
Policies.......................................... 9
3.15
IP..........................................................
9
3.16 Intellectual Property
Agreement............................. 9
3.17 LSI Logic
Contracts......................................... 9
3.18 LSI Logic
Employees......................................... 9
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PAGE
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3.19 LSI Logic Employment
Liabilities............................ 10
3.20 LSI Logic
Group............................................. 10
3.21 LSI Logic Storage
Business.................................. 10
3.22
Liabilities.................................................
10
3.23 Non-US
Plan................................................. 10
3.24 Other Financial
Liabilities................................. 10
3.25
Person......................................................
10
3.26
Restriction.................................................
10
3.27 Security
Interest........................................... 10
3.28
Separation..................................................
10
3.29 Separation
Agreement........................................ 10
3.30 Separation
Date............................................. 10
3.31 Shared
Contracts............................................ 10
3.32 SSI
Assets..................................................
11
3.33 SSI Balance
Sheet........................................... 11
3.34 SSI
Business................................................
11
3.35 SSI Contingent
Gain......................................... 11
3.36 SSI Contingent
Liability.................................... 11
3.37 SSI
Contracts...............................................
12
3.38 SSI
Employees...............................................
12
3.39 SSI Employment
Liabilities.................................. 12
3.40 SSI
Group...................................................
12
3.41 SSI
Liabilities.............................................
12
3.42 SSI
Payables................................................
12
3.43 SSI
Receivables.............................................
12
3.44
Subsidiary..................................................
12
3.45
Taxes.......................................................
12
3.46 Tax Sharing
Agreement....................................... 13
3.47 Transition Services
Agreement............................... 13
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SCHEDULES
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Schedule 1.2(a)(i) Specific SSI Assets to be
Transferred
Schedule 1.2(b)(i) Specific Excluded Assets
Schedule 1.3(a)(i) Specific SSI Liabilities
Schedule 1.3(a)(ix) Divested Businesses Which Contain
Liabilities to be
Transferred to SSI
Schedule 1.3(b)(i) Specific Excluded
Liabilities
Schedule 3.17
LSI Logic Contracts
Schedule 3.31 Shared
Contracts
Schedule 3.37
SSI Contracts
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GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
This General
Assignment and Assumption Agreement (this "Agreement") is
entered into as of December 31, 2003
between LSI Logic Corporation, a Delaware
corporation ("LSI Logic"), and LSI Logic
Storage Systems, Inc., a Delaware
corporation ("SSI"). Capitalized terms used
herein and not otherwise defined
herein shall have the meanings ascribed to
such terms in Article III hereof.
RECITALS
1. LSI Logic and
SSI are entering into a Master Separation Agreement dated
as of December 31, 2003 (the "Separation
Agreement") and other Ancillary
Agreements to delineate and clarify their
relationship and further separate the
businesses conducted by LSI Logic and SSI
(the "Separation").
2. In connection
with the Separation, the parties wish to clarify that LSI
Logic has no continuing rights and
obligations in certain Assets and Liabilities
related to the SSI Business, and LSI Logic
and SSI desire that LSI Logic
contribute to SSI any right, title or
interest that it holds in any such Asset
and that SSI assume any LSI Logic
obligation with respect to any such Liability.
NOW, THEREFORE,
in consideration of the foregoing and the covenants and
agreements set forth below, the parties
hereto agree as follows:
ARTICLE I
CONTRIBUTION AND ASSUMPTION
1.1 Contribution of Assets and
Assumption of Liabilities.
(a) Transfer of
Assets. To the extent
LSI Logic has any right, title or
interest in any SSI Asset, effective on the
Separation Date, LSI Logic hereby
assigns, transfers, conveys and delivers
(or shall cause any applicable
Subsidiary to assign, transfer, convey and
deliver) to SSI or to any applicable
SSI Subsidiary, and SSI hereby accepts from
LSI Logic, or applicable LSI Logic
Subsidiary, and agrees to cause its
applicable SSI Subsidiary to accept, all of
LSI Logic's and its applicable
Subsidiaries' respective right, title and
interest, if any, in each SSI Asset,
provided, however, that any SSI Assets that
are specifically assigned or transferred
pursuant to another Ancillary
Agreement, including but not limited to any
Assets assigned or transferred
pursuant to the Intellectual Property
Agreement, shall not be assigned or
transferred pursuant to this Section
1.1(a). Any transfers of SSI Assets are
intended to be treated as capital
contributions for federal income tax purposes.
(b) Assumption
of Liabilities.
Effective on the Separation Date, to the
extent LSI Logic has any responsibility or
liability with respect to the SSI
Liabilities, SSI hereby assumes and agrees
to perform and fulfill (or shall
cause any applicable Subsidiary to assume,
perform and fulfill) all the SSI
Liabilities in accordance with their
respective terms. Thereafter, SSI shall be
responsible (or shall cause any applicable
Subsidiary to be responsible) for,
and shall perform and fulfill, all SSI
Liabilities, regardless of when or where
such Liabilities arose or arise, or whether
the facts on which they are based
occurred prior to, on or after the date
hereof, regardless of where or against
whom such Liabilities are asserted or
determined (including any SSI Liabilities
arising out of claims made by LSI Logic's
or SSI's respective directors,
officers, consultants, independent
contractors, employees or agents against any
member of the LSI Logic Group or the SSI
Group) or whether asserted or
determined prior to the date hereof, and
regardless of whether arising from or
alleged to arise from negligence,
recklessness, violation of law, fraud or
misrepresentation by any member of the LSI
Logic Group or the SSI Group or any
of their respective directors, officers,
employees or agents.
(c) Misallocated
Assets. Unless
otherwise governed by the provisions of
the Intellectual Property Agreement, in the
event that at any time or from time
to time (whether prior to, on or after the
Separation Date), any party hereto
(or any member of such party's respective
Group) shall retain, receive or
otherwise possess any Asset that is
allocated to any other Person pursuant to
this Agreement or any Ancillary Agreement,
such party shall promptly transfer,
or cause to be transferred, such Asset to
the Person so entitled
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thereto. Prior to any such transfer, the
Person retaining, receiving or
possessing such Asset shall hold such Asset
in trust for any such other Person.
1.2 SSI Assets.
(a) Included
Assets. For purposes
of this Agreement, "SSI Assets" shall
mean (without duplication) the following
Assets, except as otherwise provided
for in any other Ancillary Agreement:
(i) all Assets that are expressly listed on Schedule 1.2(a)(i);
(ii) all Assets reflected in the SSI Balance Sheet, subject to
any
dispositions of
such Assets subsequent to the date of the SSI Balance
Sheet;
(iii) all Assets that are used primarily by the SSI Business at
the
Separation Date
that have been written off, expensed or fully depreciated
that, had they
not been written off, expensed or fully depreciated, would
have been
reflected in the SSI Balance Sheet in accordance with the
principles and
accounting policies under which the SSI Balance Sheet was
prepared;
(iv) all Assets that are used primarily by the SSI Business
acquired
or received by
LSI Logic or its Subsidiaries after the date of the SSI
Balance Sheet
that, had such Assets been acquired or received prior to the
date of the SSI
Balance Sheet, would have been reflected in SSI Balance
Sheet in
accordance with the principles and accounting policies under
which
the SSI Balance
Sheet was prepared;
(v) all Assets that are used primarily by the SSI Business at
the
Separation Date
but are not reflected in the SSI Balance Sheet due to
mistake or
unintentional omission; provided, however, that no Asset shall
be an SSI Asset
requiring any transfer by LSI Logic unless SSI or its
Subsidiaries
have, on or before the second anniversary of the Separation
Date, given LSI
Logic or its Subsidiaries notice that such Asset is an SSI
Asset;
(vi) all SSI Contingent Gains;
(vii) all SSI Contracts;
(viii) all SSI Receivables;
(ix) to the extent permitted by law and subject to the
Indemnification
and Insurance
Matters Agreement, all rights of any member of the SSI Group
under any of LSI
Logic's Insurance Policies or other insurance policies
issued by
Persons unaffiliated with LSI Logic; and
(x) all other Assets that are expressly contemplated by this
Agreement, the
Separation Agreement or any other Ancillary Agreement (or
any other
exhibit or schedule hereto or thereto) as Assets to be
transferred to
SSI or any other member of the SSI Group.
Notwithstanding the foregoing, the SSI
Assets shall not include the Excluded
Assets referred to in Section 1.2(b)
below.
(b) Excluded
Assets. For the
purposes of this Agreement, "Excluded Assets"
shall mean:
(i) all Assets that are expressly listed or described on
Schedule
1.2(b)(i);
and
(ii) all other Assets
that are expressly contemplated by the
Separation
Agreement, this Agreement or any other Ancillary Agreement (or
the exhibits or
schedules hereto or thereto) as Assets to be retained by
LSI Logic or any
other member of the LSI Logic Group.
1.3 SSI Liabilities.
(a) Included
Liabilities. For the
purposes of this Agreement, "SSI
Liabilities" shall mean (without
duplication) the following Liabilities, except
as otherwise provided for in any other
Ancillary Agreement:
(i) all Liabilities that are expressly listed on Schedule
1.3(a)(i);
(ii) all Liabilities reflected in the SSI Balance Sheet, subject
to
any discharge of
such Liabilities subsequent to the date of the SSI Balance
Sheet;
2
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(iii) all Liabilities of LSI Logic or its Subsidiaries that
arise
after the date
of the SSI Balance Sheet that, had such Liability arisen
before the date
of the SSI Balance Sheet, would have been reflected in the
SSI Balance
Sheet in accordance with the same principles and accounting
policies under
which the SSI Balance Sheet was prepared, including any such
Liabilities that
are related primarily to the Assets described in Section
1.2(a)(iii) and
Section 1.2(a)(iv);
(iv) all Liabilities that are related primarily to the SSI Business
at
the Separation
Date but are not reflected in the SSI Balance Sheet due to
mistake or
unintentional omission; provided, however, that no Liability
shall be an SSI
Liability unless LSI Logic or its Subsidiaries, on or
before the
second anniversary of the Separation Date, has given SSI or its
Subsidiaries
notice that such Liability is an SSI Liability;
(v) all SSI Contingent Liabilities;
(vi) all SSI Payables;
(vii) all SSI Employment Liabilities;
(viii) all Liabilities whether arising before, on or after the
Separation Date,
primarily relating to, arising out of or resulting from:
(1) the operation of the SSI Business, as conducted at any time
prior to, on or after the Separation Date (including any
Liability
relating to, arising out of or resulting from any act or failure to
act
by any director, officer, employee, agent or representative of LSI
Logic
or any LSI Logic Subsidiary, including SSI (whether or not such act
or
failure to act is or was within such Person's authority));
(2) the
operation of any business conducted by any member of the
SSI Group at any time after the Separation Date (including any
Liability
relating to, arising out of or resulting from any act or failure to
act
by any director, officer, employee, agent or representative of LSI
Logic
or any LSI Logic Subsidiary, including SSI (whether or not such act
or
failure to act is or was within such Person's authority)); or
(3) any SSI Assets;
(ix) all Liabilities relating to, arising out of or resulting from
any
of the
terminated, divested or discontinued businesses and operations
listed or
described on Schedule 1.3(a)(ix); and
(x) all other Liabilities that are expressly contemplated by
this
Agreement, the
Separation Agreement or any other Ancillary Agreement (or
the exhibits or
schedules hereto or thereto) as Liabilities to be retained
or assumed by
SSI or any member of the SSI Group, and all agreements,
obligations and
Liabilities of any member of the SSI Group under this
Agreement or any
of the Ancillary Agreements.
Notwithstanding the foregoing, the SSI
Liabilities shall not include the
Excluded Liabilities referred to in Section
1.3(b) below.
(b) Excluded Liabilities.
For the purposes of
this Agreement, "Excluded
Liabilities" shall mean:
(i) all Liabilities that are expressly listed or described in
Schedule
1.3(b)(i);
and
(ii) all other Liabilities that are expressly contemplated by
this
Agreement, the
Separation Agreement or any other Ancillary Agreement (or
the exhibits or
schedules hereto or thereto) as Liabilities to be retained
or assumed by
LSI Logic or any other member of the LSI Logic Group, all LSI
Logic Employment
Liabilities and all agreements and obligations of any
member of the
LSI Logic Group under the Separation Agreement, this
Agreement or any
other Ancillary Agreement.
1.4 Methods of Transfer and
Assumption.
(a) Terms of
Other Ancillary Agreements Govern. The parties shall enter
into the other Ancillary Agreements on or
about the date of this Agreement, or
as soon thereafter as practicable. To the
extent that the
3
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transfer of any SSI Asset or the assumption
of any SSI Liability is expressly
provided for by the terms of any other
Ancillary Agreement (including by not
limited to any Assets allocated, assigned
or transferred pursuant to the
Intellectual Property Agreement), the terms
of such other Ancillary Agreement
shall effect and determine the manner of,
such transfer or assumption. The
transfer and assumption of all SSI Assets
and SSI Liabilities hereunder shall be
made effective as of the Separation Date;
provided, however, the transactions
contemplated by the Non-US Plan may require
the transfer of certain Assets and
the assumption of certain Liabilities to
occur in such other manner and at such
other time as shall be set forth in the
Non-US Plan.
(b) Mistaken
Assignments and Assumptions. With respect to (i) Assets
that
the parties determine were transferred to
SSI in contravention of this Agreement
or the other Ancillary Agreements, or (ii)
Liabilities that the parties
determine were assumed by SSI in
contravention of this Agreement or the other
Ancillary Agreements, the parties shall
cooperate in good faith to effect as
promptly as practicable the transfer or
re-transfer of such Assets, and/or the
assumption or re-assumption of such
Liabilities, to or by the appropriate party
so as to effect the original intent of the
parties hereto. Each party shall, in
its sole discretion, either reimburse the
other or make other financial
adjustments (e.g., without limitation, cash
reserves) or other adjustments to
remedy any mistakes or omissions relating
to any of the Assets transferred
hereby or any of the Liabilities assumed
hereby.
(c) Documents
Relating to Other Transfers of Assets and Assumption of
Liabilities. Simultaneously with the execution
and delivery hereof or as
promptly as practicable thereafter, (i) LSI
Logic shall execute and deliver, and
shall cause its Subsidiaries to execute and
deliver, such bills of sale, stock
powers, certificates of title, deed,
assignments of contracts and other
instruments of transfer, conveyance and
assignment as and to the extent
necessary to evidence the transfer,
conveyance and assignment of all of LSI
Logic's and its Subsidiaries' right, title
and interest in and to the SSI Assets
to SSI and (ii) SSI shall execute and
deliver to LSI Logic and its Subsidiaries
such assumptions of contracts and other
instruments of assumption as and to the
extent necessary to evidence the valid and
effective assumption of the SSI
Liabilities by SSI. Notwithstanding the
foregoing, with respect to those SSI
Contracts for which the parties are
allocating the benefits and burdens as of
the Separation but not undertaking to
assign to SSI, or have SSI assume, until
the Distribution, such instructions of
assignment assumption, or documentation
of assignment, will be provided in
connection with the Distribution.
1.5 Governmental Approvals and
Consents.
(a) Transfer In
Violation of Laws. If
and to the extent that the valid,
complete and perfected transfer assignment
or novation to the SSI Group of any
Assets intended to be SSI Assets would be a
violation of applicable laws or
require any consent or Governmental
Approval in connection with the Separation,
then, unless LSI Logic shall otherwise
determine, the transfer, assignment or
novation to the SSI Group, as the case may
be, of such Assets shall be
automatically deemed deferred and any such
purported transfer, assignment or
novation shall be null and void until such
time as all legal impediments are
removed and/or such consents or
Governmental Approvals have been obtained.
Notwithstanding the foregoing, if such
Assets (or the benefits thereof) are
available for use in the SSI Business, then
such Assets shall still be
considered SSI Assets for purposes of
determining whether any Liability is an
SSI Liability. Further, for each SSI
Contract for which such consent is not
obtained initially, the parties shall
address that SSI Contract pursuant to
Section 1.8 hereof, and for other Assets,
if such consents or Governmental
Approvals shall have not been obtained
within two years of the Separation Date,
the parties shall use their reasonable
commercial efforts to achieve an
alternative solution in accordance with the
parties' intentions.
(b) Transfers
Not Consummated Prior to Separation Date. If the transfer,
assignment or novation of any Assets or
Liabilities intended to be transferred
or assigned hereunder, including pursuant
to the Non-US Plan, is not consummated
prior to or on the Separation Date, whether
as a result of the provisions of
Section 1.5(a) or for any other reason,
then the Person retaining such Asset or
Liabilities shall thereafter hold such
Asset or Liabilities for the use and
benefit, insofar as reasonably possible, of
the Person entitled thereto (at the
expense of the Person entitled thereto). In
addition, the Person retaining such
Asset shall take such other actions as may
be reasonably
