Exhibit 10.1
EXECUTION COPY
STOCK REPURCHASE
AGREEMENT
This Stock Repurchase Agreement
(this “ Agreement ”), dated as of
January 27, 2009, is by and between DSP Group, Inc. , a
Delaware corporation (the “ Company ”), and
NXP B.V. , a limited liability company incorporated under
the laws of the Netherlands (“ NXP
”).
WHEREAS, the Company and NXP entered
into a Share and Business Sale Agreement (“ SBSA
”), dated September 3, 2007, pursuant to which, among
other things, the Company issued to NXP 4,186,603 shares (the
“ Shares ”) of the Common Stock of the Company,
par value $0.001 per share (the “ Common Stock
”), as partial consideration for the acquisition by the
Company of the cordless and IP terminals business of NXP;
and
WHEREAS, the Company and NXP entered
into a Stockholders Agreement (the “ SA ”),
effective as of September 4, 2007, setting forth certain terms
and conditions applicable to, among other things, the acquisition,
ownership, voting and disposition of the Shares.
NOW, THEREFORE, in consideration of
the mutual promises and covenants herein, the parties hereto,
intending to be legally bound, agree as follows:
1. S TOCKHOLDERS A GREEMENT ; NXP D IRECTOR N OMINEE . The SA and all rights and obligations of the
parties therein are terminated as of the date of the Closing (as
defined below). The Purchaser Board Designee (as defined in the SA)
shall resign effective as of the date of the Closing.
2. R EPURCHASE OF THE S HARES .
2.1
Repurchase and
Price . At Closing, upon the terms and subject to the
conditions set forth herein, the Company agrees to purchase from
NXP, and NXP agrees to sell to the Company, the Shares. The per
share purchase price for the Shares shall be the average closing
price per share of the Common Stock on the NASDAQ Global Market
during the 20 (twenty) Business Days commencing on the third
(3 rd ) day following the
release by the Company of its earnings for the fiscal year ending
December 31, 2008 (the “ Pricing Period ”),
less fifteen percent (15%) of such average. For purposes of
this Agreement, a “ Business Day ” means a
calendar day, other than a Saturday or a Sunday, on which
commercial banks in Amsterdam, The Netherlands, and in
New York, New York, United States of America, are
generally open for business.
2.2
Closing .
Subject to the satisfaction (or waiver) of the conditions set forth
in Sections 5 and 6 below, the consummation of the repurchase
of the Shares shall occur on the fifth (5 th ) Business Day following
the Pricing Period, or at such other date as is mutually agreeable
to the Company and NXP (the “ Closing ”). The
Company shall pay the aggregate purchase price for the Shares as
determined in Section 2.1 above at the Closing by wire
transfer of immediately available funds to an account designated by
NXP at least two (2) Business Days prior to the Closing. The
Closing shall take place at the offices of Morrison &
Foerster LLP , 425 Market Street,
San Francisco, California, 94105, or at such other place as is
agreed between the parties.
3. R EPRESENTATIONS AND W ARRANTIES OF NXP .
NXP hereby represents and warrants to the Company as of the date
hereof and as of the Closing as follows:
3.1 Valid Title
. NXP is the lawful and beneficial
owner of the Shares free and clear of any and all liens,
encumbrances, restrictions and claims of any kind, except for the
restrictions set forth in the SA or as otherwise arising pursuant
to this Agreement. The delivery to the Company of the Shares
pursuant to the provisions hereof will transfer to the Company
valid title thereto, free and clear of any and all adverse claims,
except for any such claims created by the Company.
3.2 Authorization . NXP has full power,
authority and capacity to enter into this Agreement and to carry
out the transactions contemplated hereby. This Agreement has been
duly and validly authorized, executed and delivered by NXP and,
assuming due authorization, execution and delivery by the Company,
is a valid and binding obligation of NXP enforceable in accordance
with its terms, except to the extent enforceability may be limited
by bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium and similar laws affecting the rights of creditors
generally and by the availability of equitable remedies.
3.3 No Violation . Neither the execution and
delivery of this Agreement by NXP nor its performance and the
consummation of the transactions contemplated hereby will violate
its organizational and governing documents or any statute or law or
any judgment, decree, order, regulation or rule of any court or
governmental authority applicable to NXP.
3.4 No Conflicts or Required Approvals .
Neither the execution and delivery of this Agreement by NXP nor its
performance and the consummation of the transactions contemplated
hereby (a) will result in a material breach of or default
under any material agreement or instrument to which NXP is a party
or by which NXP or the Shares may be bound or (b) require any
consent or approval of, or filing, declaration or registration with
or notice to any governmental or regulatory body.
4. R EPRESENTATIONS AND W ARRANTIES OF THE C OMPANY . The Company hereby represents and warrants to
NXP as of the date hereof and as of the Closing as
follows:
4.1 Authorization . The Company has full
power and authority to enter into this Agreement and to carry out
the transactions contemplated hereby. This Agreement has been duly
and validly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery by NXP, is a
valid and binding obligation of the Company enforceable in
accordance with its terms, except to the extent enforceability may
be limited by bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium and similar laws affecting the rights of
creditors generally and by the availability of equitable
remedies.
4.2 No Violation . Neither the execution and
delivery of this Agreement by the Company nor its performance and
the consummation of the transactions contemplated hereby will
violate organizational and governing documents or any statute or
law (including, without limitation, the General Corporation Law of
the State of Delaware) or any judgment, decree, order, regulation
or rule of the Nasdaq Stock Market or of any court or governmental
authority applicable to the Company.
2
4.3 No Conflicts or Required Approvals .
Neither the execution and delivery of this Agreement by the Company
nor its performance and the consummation of the transactions
contemplated hereby (a) will result in a material breach of or
default under any material agreement or instrument to which the
Company is a party or by which the Company or its assets may be
bound or (b) require any consent or approval of, filing,
declaration, registration with or notice to any governmental or
regulatory body or the Nasdaq Stock Market.
5. C ONDITIONS TO THE C OMPANY ’ S O BLIGATIONS AT THE C LOSING . The obligations of the Company under this
Agreement are subject to the fulfillment (or the waiver by the
Company) on or before the Closing of each of the following
conditions:
5.1 Representations and Warranties . The
representations and warranties of NXP contained in Section 3
shall be true and correct in all respects on and as of the Closing
with the same effect as though such representations and warranties
had been made on and as of the date of such Closing.
5.2 Deliverables . NXP shall have delivered
to the Company (a) the stock certificate (or stock
certificates) evidencing the Shares, together with a stock power
(or stock powers) duly endorsed in blank; and (b) the
resignation letter of the Purchaser Board Designee from the
Company’s board of directors effective as of the date of the
Closing.
5.3 Performance
. NXP shall have performed and
complied with all agreements and obligations contained in this
Agreement that are required to be performed or complied with by it
on or before the Closing.
5.4 No Restraints . No preliminary or
permanent injunction or other order issued by any court of
competent jurisdiction or any governmental or regulatory body nor
any statute, rule, regulation or order promulgated or enacted by
any government authority that restrains, enjoins or otherwise
prohibits the transactions contemplated hereby shall be in
effect.
6. C ONDITIONS TO NXP’ S O BLIGATIONS AT THE C LOSING . The obligations of NXP under this Agreement
are subject to the fulfillment (or the waiver by NXP) on or before
the Closing of each of the following conditions:
6.1 Representations and
Warranties . The
representations and warranties of the Company contained in
Section 4 shall be true and correct in all respects on and as
of the Closing with the same effect as though such representations
and warranties had been made on and as of the date of such
Closing.
6.2 Deliverables . The Company shall have
delivered to NXP in immediately available funds the aggregate
purchase
