This excerpt taken from the NANO 8-K filed Mar 16, 2006.


5.1 Stockholder Approval. Immediately after execution of this Agreement, the Company will deliver to Parent a valid, executed irrevocable written consent from each Person who is a Company Stockholder as of the Effective Time approving this Agreement. Each such written consent shall specify that approval of this Agreement shall constitute approval by the Stockholders of: (A) the escrow and indemnification obligations of the Stockholders set forth in Article VII hereof and the deposit of the Escrow Amount into the Escrow Fund and (B) the appointment of Alain G. Bojarski as Representative, under and as defined in this Agreement.

5.2 Access to Information. Upon reasonable notice, the Company shall afford Parent and its accountants, counsel and other representatives, reasonable access during the period from the date hereof and prior to the earlier of the termination of this Agreement and the Effective Time to (i) all of the properties, books, contracts, commitments and records of the Company and its Subsidiaries, including the Company’s source code, as Parent may reasonably request, (ii) all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of the Company and its Subsidiaries as Parent may reasonably request, and (iii) all Employees of the Company and its Subsidiaries as identified by Parent upon reasonable request and during normal working hours. The Company agrees to provide to Parent and its accountants, counsel and other representatives copies of internal financial statements (including Tax Returns and supporting documentation) promptly upon reasonable request. No information or knowledge obtained in any investigation pursuant to this Section 5.2 or otherwise shall affect or be deemed to modify any representation or warranty contained herein or the conditions to the obligations of the parties to consummate the Merger in accordance with the terms and provisions hereof.

5.3 Confidentiality. Each of the parties hereto hereby agrees that the information obtained in any investigation pursuant to Section 5.2 hereof, or pursuant to the negotiation and



execution of this Agreement or the effectuation of the transactions contemplated hereby, shall be governed by the terms of that certain Confidentiality Agreement dated as of February 14, 2006 (the “Confidential Disclosure Agreement”) between the Company and Parent. In this regard, the Company acknowledges that the Parent common stock is publicly traded and that any information obtained during the course of its due diligence could be considered to be material non-public information within the meaning of federal and state securities laws.

5.4 Expenses. Whether or not the Merger is consummated, all fees and expenses incurred in connection with the Merger including, without limitation, all legal, accounting, financial advisory, consulting and all other fees and expenses of third parties incurred by a party in connection with the negotiation and effectuation of the terms and conditions of this Agreement and the transactions contemplated hereby (“Third Party Expenses”), shall be the obligation of the respective party incurring such fees and expenses. The Company shall provide Parent with a statement of estimated Third Party Expenses incurred by the Company (“Company Third Party Expenses”) as soon as practicable prior to the Closing Date in form reasonably satisfactory to Parent (the “Statement of Expenses”). Any Company Third Party Expenses in excess of the Company Third Party Expenses reflected on the Statement of Expenses used to reduce the Aggregate Merger Consideration (“Excess Third Party Expenses”), shall be subject to the indemnification provision of Article VII and shall not be limited by or count towards the maximum amount of indemnification provided in Section 7.5. Third Party Expenses shall not be incurred by the Company after the Closing Date without the express prior written consent of Parent.

5.5 Public Disclosure. Neither party shall issue any statement or communication to any third party (other than its agents that are bound by confidentiality restrictions) regarding the subject matter of this Agreement or the transactions contemplated hereby, including, if applicable, the termination of this Agreement and the reasons therefor, without the consent of the other party unless required to do so by applicable law or the rules or regulations of any securities exchange or market quotation system; provided, however, that the Company shall, if practicable, be given notice of such disclosure requirement and the opportunity to comment on the form and substance of such disclosure.

5.6 Consents. At the request of Parent, the Company shall use commercially reasonable efforts to obtain all necessary consents, waivers and approvals of any parties to any Contract as are required thereunder in connection with the Merger or the transactions contemplated by the Related Agreements or for any such Contracts to remain in full force and effect, all of which are listed in Section 2.5 of the Company Disclosure Schedule, so as to preserve all rights of, and benefits to, the Company under such Contract from and after the Effective Time. Such consents, waivers and approvals shall be in a form reasonably acceptable to Parent.

5.7 FIRPTA Compliance. On the Closing Date, the Company shall deliver to Parent a properly executed statement (a “FIRPTA Compliance Certificate”) in a form reasonably acceptable to Parent for purposes of satisfying Parent’s obligations under Treasury Regulation Section 1.1445-2(c)(3).



5.8 Reasonable Efforts. Subject to the terms and conditions provided in this Agreement, each of the parties hereto shall use commercially reasonable efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated hereby, to obtain all necessary waivers, consents and approvals and to effect all necessary registrations and filings and to remove any injunctions or other impediments or delays, legal or otherwise, in order to consummate and make effective the transactions contemplated by this Agreement for the purpose of securing to the parties hereto the benefits contemplated by this Agreement; provided, however, that Parent shall not be required to agree to any divestiture by Parent or the Company or any of Parent’s subsidiaries or affiliates, of shares of capital stock or of any business, assets or property of Parent or the Subsidiaries or affiliates, or of the Company, its affiliates, or the imposition of any material limitation on the ability of any of them to conduct their businesses or to own or exercise control of such assets, properties and stock.

5.9 Notification of Certain Matters. Each of the parties shall give prompt notice to the other parties of: (i) the occurrence or non-occurrence of any event, the occurrence or non-occurrence of which is likely to cause any representation or warranty of such party contained in this Agreement to be untrue or inaccurate in any material respect at or prior to the Effective Time and (ii) any failure of such party to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it hereunder; provided, however, that the delivery of any notice pursuant to this Section 5.9 shall not (a) limit or otherwise affect any remedies available to the party receiving such notice or (b) constitute an acknowledgment or admission of a breach of this Agreement. No disclosure by any party pursuant to this Section 5.9, however, shall be deemed to amend or supplement the Company Disclosure Schedule or prevent or cure any misrepresentations, breach of warranty or breach of covenant.

5.10 Additional Documents and Further Assurances. Each party hereto, at the request of another party hereto, shall execute and deliver such other instruments and do and perform such other acts and things as may be necessary or desirable for effecting completely the consummation of the Merger and the transactions contemplated hereby.

5.11 New Employment Arrangements. After the Effective Time, Surviving Corporation will continue the employment arrangements in place immediately prior to the Effective Time, except with respect to individuals whose employment was terminated by the Company prior to the Effective Time, until such time as Parent, in its sole discretion, amends or terminates such arrangements. It is Parent’s intention that in the event any Company employees are transferred to Parent’s welfare benefit plans, such employees will receive full credit for their service to the Company for purposes of determining eligibility and benefit levels under such benefit plans.

5.12 Certain Payments to Employees. Prior to the Effective Time, the Company shall pay or cause to be paid all amounts that are or will become due, except for such amounts that become due as a result of actions taken by or at the direction of Parent or the Surviving Corporation, to any employee of the Company or any other person as a result of (i) the execution and delivery of this Agreement, (ii) the announcement, pendency or closing of the Merger or (iii) the consummation of



any of the other transactions contemplated by this Agreement, whether such amounts are in the nature of severance payments, change of control payments or otherwise.

5.13 Resignation of Officers and Directors. The Company shall obtain the resignations of all officers and directors of the Company and its Subsidiaries, effective as of the Effective Time.

5.14 Release of Liens. The Company shall file as soon as practicable following the Effective Time, all agreements, instruments, certificates and other documents, in form and substance reasonably satisfactory to Parent, that are necessary or appropriate to effect the release of all Liens.

5.15 Spreadsheet. The Company shall deliver a spreadsheet (the “Spreadsheet”), which spreadsheet shall be certified as complete and correct by the Chief Executive Officer or Chief Financial Officer of the Company as of the Closing and which shall separately list, as of the Closing, (i) all Company Holders and their respective addresses and taxpayer identification numbers, (ii) the number of shares of Company Capital Stock, Company Options or Company Warrants held by such persons, (iii) the respective certificate numbers, (iv) the aggregate amount of Per Share Merger Consideration to be paid to each holder, (v) the amount of aggregate Per Share Merger Consideration to be deposited into the Escrow Fund on behalf of each holder and the resulting Pro Rata Portion for each Company Holder, and (vi) such other information relevant thereto or which the Exchange Agent or Parent may reasonably request. The Company shall deliver the Spreadsheet to Parent as soon as practicable prior to the Closing Date.

5.16 Directors’ and Officers’ Indemnification. Parent and the Surviving Corporation will, pursuant to the provisions of their respective certificates of incorporation (or articles of organization) and by-laws, indemnify and hold harmless the present and former officers and directors of the Company and the Subsidiaries in respect of acts or omissions occurring while such persons are officers and directors to the same or greater extent as is provided under the respective Company Charter Documents and Subsidiary Charter Documents as of the date of this Agreement. Neither Parent nor the Surviving Corporation will amend, repeal or modify such provisions in any manner that would adversely affect the rights thereunder of such persons; provided, that, such indemnification shall be subject to any limitation imposed from time to time under applicable law.

5.17 Release and Non-Competition Agreements. Prior to or concurrent with execution of this Agreement, the individuals set forth in Schedule 5.17 to this Agreement shall have executed and delivered to Parent a Release and Non-Competition Agreement to be effective as of the Effective Time.

5.18 Stockholders. The Company and the Stockholders shall take all action necessary to cause any person who becomes the legal or beneficial owner of Company Capital Stock between the date hereof and the Effective Time to agree to be bound by the obligations hereunder applicable to Stockholders.



5.19 Termination of Credit Facility.

(a) The Company shall terminate the Loan and Security Agreement, dated as of December 16, 2005, between Silicon Valley Bank, a California chartered bank and the Company (the “Credit Facility”) and all arrangements and commitments thereunder. All required fees or penalties in connection therewith shall either be paid by the Company prior to the Effective Time or included in the calculation of Accounts Payable Balance.

(b) The Company shall use commercially reasonable efforts to obtain from Silicon Valley Bank full and unconditional releases of all Liens under the Credit Facility together with all forms and other documents necessary to appropriately update any public record with respect to such releases.


SiRF Technology Holdings (SIRF)
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