Exhibit 10.49


 


ASSET PURCHASE AGREEMENT


 


 


by and between


 


 


TRIQUINT SEMICONDUCTOR, INC.


 


as Seller


 


 


and


 


 


CYOPTICS, INC.


 


as Buyer


 


 


Dated April 14, 2005


 





















 


TABLE OF CONTENTS


 


	
  1.

  	
  Definitions

  	
   

  
	
  1.1

  	
  Defined
  Terms

  	
   

  
	
  1.2

  	
  Additional Defined Terms

  	
   

  
	
  1.3

  	
  Other Definitional and Interpretive Matters

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Purchase and Sale of the Optoelectronics
  Business

  	
   

  
	
  2.1

  	
  Purchase and Sale of Assets

  	
   

  
	
  2.2

  	
  Excluded Assets

  	
   

  
	
  2.3

  	
  Purchase Price

  	
   

  
	
  2.4

  	
  Assumed Liabilities

  	
   

  
	
  2.5

  	
  Excluded Liabilities

  	
   

  
	
  2.6

  	
  Further Assurances; Further Conveyances and
  Assumptions; Consent of Third Parties

  	
   

  
	
  2.7

  	
  Proprietary Information

  	
   

  
	
  2.8

  	
  Bulk Sales Law

  	
   

  
	
  2.9

  	
  Taxes

  	
   

  
	
  2.10

  	
  Buyer Designee

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Representations and Warranties of Seller

  	
   

  
	
  3.1

  	
  Organization and Qualification;
  Subsidiaries

  	
   

  
	
  3.2

  	
  Authorization

  	
   

  
	
  3.3

  	
  Binding Effect

  	
   

  
	
  3.4

  	
  Non-Contravention; Consents

  	
   

  
	
  3.5

  	
  Title to Property; Principal Equipment

  	
   

  
	
  3.6

  	
  Permits; Licenses

  	
   

  
	
  3.7

  	
  Real Estate; Environmental Matters

  	
   

  
	
  3.8

  	
  Compliance With Laws

  	
   

  
	
  3.9

  	
  Litigation

  	
   

  
	
  3.10

  	
  Business Employees

  	
   

  
	
  3.11

  	
  Contracts

  	
   

  
	
  3.12

  	
  Revenues; Financial Information; Absence of
  Certain Changes

  	
   

  
	
  3.13

  	
  Intellectual Property

  	
   

  
	
  3.14

  	
  Product Liability and Recalls

  	
   

  
	
  3.15

  	
  Product Warranty

  	
   

  
	
  3.16

  	
  Inventory

  	
   

  
	
  3.17

  	
  Customers and Suppliers

  	
   

  
	
  3.18

  	
  Restrictions on the Business

  	
   

  
	
  3.19

  	
  Brokers

  	
   

  
	
  3.20

  	
  Taxes

  	
   

  
	
  3.21

  	
  Accounts Receivable

  	
   

  
	
  3.22

  	
  Transactions with Affiliates

  	
   

  
	
  3.23

  	
  No Other Representations or Warranties

  	
   

  



 





















 


	
  4.

  	
  Representations and Warranties of Buyer

  	
   

  
	
  4.1

  	
  Organization and Qualification

  	
   

  
	
  4.2

  	
  Authorization; Binding Effect

  	
   

  
	
  4.3

  	
  Non-Contravention; Consents

  	
   

  
	
  4.4

  	
  Brokers

  	
   

  
	
  4.5

  	
  No Inducement or Reliance; Independent
  Assessment

  	
   

  
	
  4.6

  	
  Sufficiency of Funds

  	
   

  
	
  4.7

  	
  No Other Representations or Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Certain Covenants

  	
   

  
	
  5.1

  	
  Access and Information

  	
   

  
	
  5.2

  	
  Conduct of the Optoelectronics Business

  	
   

  
	
  5.3

  	
  Allocation of Consideration

  	
   

  
	
  5.4

  	
  Business Employees

  	
   

  
	
  5.5

  	
  Collateral Agreements; Leased Equipment

  	
   

  
	
  5.6

  	
  Commercially Reasonable Efforts

  	
   

  
	
  5.7

  	
  Contacts with Suppliers and Customers

  	
   

  
	
  5.8

  	
  Use of Seller’s Name

  	
   

  
	
  5.9

  	
  Deposit; No Negotiation or Solicitation

  	
   

  
	
  5.10

  	
  Non-Competition

  	
   

  
	
  5.11

  	
  Consents

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Confidential Nature of Information

  	
   

  
	
  6.1

  	
  Confidentiality Agreement

  	
   

  
	
  6.2

  	
  Seller’s Proprietary Information

  	
   

  
	
  6.3

  	
  Buyer’s Proprietary Information

  	
   

  
	
  6.4

  	
  Confidential Nature of Agreements

  	
   

  
	
  6.5

  	
  Other Confidentiality Agreements

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Closing

  	
   

  
	
  7.1

  	
  Deliveries by Seller

  	
   

  
	
  7.2

  	
  Deliveries by Buyer or a Buyer Designee

  	
   

  
	
  7.3

  	
  Closing
  Date

  	
   

  
	
  7.4

  	
  Contemporaneous Effectiveness

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Conditions Precedent to Closing

  	
   

  
	
  8.1

  	
  Conditions Precedent to Buyer’s Obligations

  	
   

  
	
  8.2

  	
  Conditions Precedent to Seller’s
  Obligations

  	
   

  
	
   

  	
   

  	
   

  
	
  9.

  	
  Status of Agreements

  	
   

  
	
  9.1

  	
  Survival of Representations and Warranties

  	
   

  
	
  9.2

  	
  General Agreement to Indemnify

  	
   

  
	
  9.3

  	
  General Procedures for Indemnification

  	
   

  
	
   

  	
   

  	
   

  
	
  10.

  	
  Miscellaneous Provisions

  	
   

  
	
  10.1

  	
  Notices

  	
   

  



 





















 


	
  10.2

  	
  Expenses

  	
   

  
	
  10.3

  	
  Entire Agreement

  	
   

  
	
  10.4

  	
  Assignment; Binding Effect; Severability

  	
   

  
	
  10.5

  	
  Governing Law

  	
   

  
	
  10.6

  	
  Consent to Jurisdiction

  	
   

  
	
  10.7

  	
  Waiver of Jury Trial

  	
   

  
	
  10.8

  	
  Execution in Counterparts

  	
   

  
	
  10.9

  	
  Public Announcement

  	
   

  
	
  10.10

  	
  No Third-Party Beneficiaries

  	
   

  
	
  10.11

  	
  Waiver of Terms or Conditions

  	
   

  
	
  10.12

  	
  Amendment of Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  11.

  	
  Termination

  	
   

  
	
  11.1

  	
  Termination

  	
   

  
	
  11.2

  	
  Effect of Termination

  	
   

  



 





















 


Exhibits


 


	
  A

  	
  Assignment
  and Assumption Agreement and Bill of Sale

  	
   

  
	
  B

  	
  Intellectual
  Property Agreement

  	
   

  
	
  C

  	
  Transition
  Services Agreement

  	
   

  
	
  D

  	
  Promissory
  Note

  	
   

  
	
  E

  	
  Equity
  Purchase Agreement

  	
   

  
	
  F

  	
  Deposit
  Agreement

  	
   

  
	
  G

  	
  Opinion
  Letter of Seller’s Counsel

  	
   

  



 





















 


ASSET PURCHASE AGREEMENT


 


THIS ASSET PURCHASE AGREEMENT (this “Agreement”)
is made as of April 14, 2005 by and between TriQuint Semiconductor, Inc.,
a Delaware corporation (“TriQuint”
and, together with the Subsidiaries (as hereinafter defined), jointly and
severally, “Seller”), with offices
at 2300 NE Brookwood Parkway, Hillsboro, OR 97124 and CyOptics, Inc., a
Delaware corporation (“Buyer”),
with offices at 7360 Windsor Drive, Allentown, PA 18106.


 


RECITALS


 


A.                                   Seller
is, among other things, engaged in the Optoelectronics Business (as hereinafter
defined).


 


B.                                     The
Optoelectronics Business is comprised of certain assets and liabilities that
are currently owned by Seller or in respect of which Seller is currently
obligated, as the case may be.


 


C.                                     Seller
desires to sell, transfer and assign to Buyer or a Buyer Designee (as
hereinafter defined), and Buyer or a Buyer Designee desires to purchase from
Seller, the Purchased Assets (as hereinafter defined), and Buyer or a Buyer
Designee is willing to assume, the Assumed Liabilities (as hereinafter
defined), in each case as more fully described and upon the terms and subject
to the conditions set forth herein.


 


D.                                    Seller
and Buyer or a Buyer Designee desire to enter into each Assignment and
Assumption Agreement and Bill of Sale, 
the Intellectual Property Agreement, the Breinigsville Lease, the Lease
Assignments, the Transition Services Agreement, the Stock Purchase Agreement,
the Promissory Note, the Equity Purchase Agreement and the Deposit Agreement
(each as hereinafter defined and collectively, the “Collateral Agreements”).


 


NOW, THEREFORE, in consideration of the mutual agreements and covenants
herein contained and intending to be legally bound hereby, the parties hereby
agree as follows:


 


AGREEMENT


 


1.                                      Definitions


 


1.1                               Defined
Terms


 


For the purposes of this Agreement the following words and phrases
shall have the following meanings:


 


“Accounts Payable” means
the trade accounts payable for materials and services used in the
Optoelectronics Business, as set forth on Schedule 2.4(d), and other trade
accounts payable for materials and services used in the Optoelectronics
Business after the date hereof and prior to the Closing Date.


 


“Accounts Receivable”
means (i) the trade accounts receivable and other rights to payment from
customers of the Optoelectronics Business and the full benefit of all security
for 


 





















 


such accounts
or rights to payment in respect of goods shipped and invoiced as of a date on
or prior to the date hereof, or products sold or services rendered to customers
of the Optoelectronics Business listed on Schedule 2.1(i), (ii) other
trade accounts receivable and rights to payment from customers of the
Optoelectronics Business and the full benefit of all security for such accounts
or rights to payment in respect of goods shipped and invoiced, or products sold
or services rendered to customers of the Optoelectronics Business after the
date hereof and prior to the Closing Date, and (iii) the balance of the
prepaid accounts relating to Purchased Assets, listed on Schedule 2.1(i),
reduced by (x) any amounts received in payment of such accounts after the date
hereof and prior to the Closing Date, and (y) Seller’s reserves for
doubtful accounts.


 


“Affiliate” of any Person
means any Person that controls, is controlled by, or is under common control
with such Person. As used herein, the term “control” (including the terms “controlling,”
“controlled by” and “under common control with”) means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through ownership of voting securities or
other interests, by contract or otherwise.


 


“Assigned Intellectual Property”
means all Proprietary Information owned by Seller other than registered
patents, patent applications, registered trademarks and registered trademark
applications, to the extent that such Proprietary Information principally
relates to the Optoelectronics Business. 
For avoidance of doubt, Proprietary Information of any Third Party
licensed to Seller does not constitute Assigned Intellectual Property.


 


“Assignment and Assumption Agreement
and Bill of Sale” means each agreement in substantially the form set
forth as Exhibit A.


 


“Assumed Leases” means the
Leases identified on Schedule 3.7(a) to be assumed by the Buyer
pursuant to a Lease Assignment.


 


“Benefit Plan” means, in
respect of any Business Employee, each Pension Plan, Welfare Plan and
employment, bonus, pension, profit sharing, deferred compensation, incentive
compensation, stock ownership, stock option, stock purchase, phantom stock,
performance, retirement, thrift, savings, stock bonus, excess benefit,
supplemental unemployment, paid time off, perquisite, fringe benefit, vacation,
sick leave, severance, disability, death benefit, hospitalization, medical,
dental, life insurance, welfare benefit or other plan, program or arrangement,
in each case maintained or contributed to, or required to be maintained or
contributed to, by Seller or its Affiliates.


 


“Breinigsville Lease”
means an agreement relating to the lease of certain of the property in
Breinigsville, PA, to be entered into between Buyer and Seller.


 


“Business Day” means a day
that is not a Saturday, a Sunday or a statutory or civic holiday in the State
of Oregon.


 


“Business Employees” means
the employees of Seller employed in the Optoelectronics Business and identified
on Schedule 3.10(a).


 





















 


“Business Records” means
all books, records, ledgers, tangible data, disks, tapes, and other
media-storing data and files or other similar information whether in hardcopy
or computer format and whether stored in network facilities or otherwise, in
each case to the extent that such materials principally relate to the
Optoelectronics Business.  Without
limiting the foregoing, “Business Records” includes engineering information,
manuals and data, product datasheets, sales and purchase correspondence, price
lists, lists of present and former customers, information concerning customer
contacts, purchasing history, technical characteristics and other information
reasonably required for ongoing customer relationships, lists of present and
former suppliers or vendors, mailing lists, warranty information, catalogs,
sales promotion literature, advertising materials, brochures, records of operation,
accounting and financial records, personnel and employment records, standard
forms of documents, manuals of operations or business procedures, designs,
research materials and product testing reports, and any information relating to
any Tax imposed on any Purchased Assets, but excluding any such items to the
extent they are included in, or primarily related to, the Excluded Assets or
Excluded Liabilities.


 


“Buyer Designee” means one
or more Affiliates of Buyer identified to Seller in accordance with Section 2.10
prior to the Closing Date.


 


“CERCLA” means the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
42 U.S.C. §§ 9601 et seq. as amended.


 


“Closing” means the
closing of the transactions described in Article 7.


 


“Code” means the U.S.
Internal Revenue Code of 1986, as amended.


 


“Confidentiality Agreement”
means the letter agreement between Seller and Buyer dated October 22,
2004.


 


“Contracts” means (A) the
contracts listed on Schedule 2.1(g), and (B) any other Third-Party
contracts, agreements, and purchase orders (i) for the provision of goods
or services to the Optoelectronics Business, (ii) for the sale by the
Optoelectronics Business of goods or performance by the Optoelectronics
Business of services, or (iii) for the sale and distribution of the
products of the Optoelectronics Business; to the extent such contracts,
agreements, and purchase orders referred to in clause (B) above are used
or held for use primarily in the operation or conduct of the Optoelectronics Business,
are entered into between the date hereof and the Closing Date by Seller in the
ordinary course of business consistent with past practice, and are outstanding
as of the Closing Date.


 


“Encumbrance” means any
lien, claim, charge, encumbrance, security interest, mortgage, pledge,
easement, capital lease, conditional sale or other title retention agreement,
covenant, licenses, adverse claims of ownership or use, or other similar
restriction or Third Party right affecting the Purchased Assets, but shall not
include Permitted Encumbrances.


 


“Environmental Law” means
any Law that governs the existence of or provides a remedy for release of
Hazardous Substances, the protection of persons, natural resources or the
environment, the management of Hazardous Substances, or other activities
involving Hazardous Substances including, without limitation, under CERCLA, the
Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq., the
Resource Conservation and Recovery Act, 42 


 





















 


U.S.C. § 6901
et seq., the Clean Water Act, 33 U.S.C. Section § 1251 et seq., the
Clean Air Act, 42 U.S.C. § 7401 et seq., the Toxic Substance Control Act,
15 U.S.C. § 2601 et seq., the Oil Pollution Act of 1990, 33 U.S.C. § 2701
et seq., the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.,
the Safe Drinking Water Act, 42 U.S.C. 300f through 300j, the Hazardous
Substances Transportation Uniform Safety Act of 1990, 49 U.S.C. 5101 et seq.,
or any other similar Law, as any such law has been amended or supplemented, and
the regulations promulgated pursuant thereto.


 


“Environmental Liabilities”
means any and all liabilities arising in connection with or in any way relating
to Seller (or any predecessor of Seller or any prior owner of all or part of
its business and assets), any property now or previously owned, leased or
operated by Seller, the Optoelectronics Business (as currently or previously
conducted), or the Purchased Assets which (i) arise under or relate to any
Environmental Laws and (ii) relate to events occurring or conditions
existing on or before the Closing Date.


 


“Equity Purchase Agreement”
means the Equity Purchase Agreement between Buyer, Seller, and certain of their
Affiliates relating to Buyer’s acquisition of all of the issued and outstanding
equity participation rights and other forms of capital stock of TriQuint
Mexico, in substantially the form set forth in Exhibit E.


 


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


 


“Excluded Taxes” means any
liability, obligation or commitment, whether or not accrued, assessed or
currently due and payable, for any Taxes relating to, pertaining to, or arising
out of, the Optoelectronics Business or the Purchased Assets for any
Pre-Closing Tax Period.


 


“Fixtures and Supplies”
means the furniture, furnishings and other tangible personal property related
to office operations owned by Seller and used or held for use primarily in the
operation or conduct of the Optoelectronics Business and located in
Breinigsville, PA (in Seller’s Building 2 and the chip fabrication area of
Seller’s Building 4 only) and Matamoros, Mexico including those identified on Schedule 2.1(d).  With regard to the discontinued product lines
constituting the Optoelectronics Business, “Fixtures and Supplies” includes
only those items specifically identified on Schedule 2.1(d).  “Fixtures and Supplies” also includes all
office supplies related to office operations owned by Seller and used or held
for use primarily in the operation or conduct of the Optoelectronics Business
and located in Breinigsville, PA (in Seller’s Building 2, the chip fabrication
area of Seller’s Building 4, and the data centers and stock rooms in Seller’s
Buildings 1 and 4 only) and Matamoros, Mexico. 
“Fixtures and Supplies” includes any additions, improvements, replacements
and alterations to the foregoing between the date hereof and the Closing Date
and all warranties and guarantees, if any, express or implied with respect to
the foregoing, but excludes any such items that primarily relate to Excluded
Assets or Excluded Liabilities.


 


“GAAP” means U.S.
generally accepted accounting principles.


 


“Governmental Body” means
any legislative, executive or judicial unit of any governmental entity
(foreign, federal, state or local) or any department, commission, board, agency,
bureau, official or other regulatory, administrative or judicial authority
thereof.


 





















 


“Governmental Permits”
means all governmental permits and licenses, certificates of inspection,
approvals or other authorizations identified on Schedule 3.6 issued to
Seller by a Governmental Body with respect to the Optoelectronics Business and
necessary for the operation or conduct of the Optoelectronics Business as
currently conducted.


 


“Hazardous Substance”
means (i) any hazardous, toxic or dangerous waste, substance or material
defined as such pursuant to any Environmental Law, (ii) asbestos or PCBs
and (iii) any other chemical, material or substance, exposure to which is
prohibited, limited or regulated by any Governmental Body pursuant to any
Environmental Law.


 


“Intellectual Property Agreement”
means the agreement in substantially the form set forth as Exhibit B.


 


“Inventory” means the
inventory, raw materials (including in chemical or elemental form), work in
process, and finished products relating to the Optoelectronics Business, as
listed on Schedule 2.1(e), together with changes to such list that occur
between the date of the schedule and the Closing Date in the ordinary
course of the Optoelectronics Business consistent with past practice, and any
rights of Seller to the warranties received from suppliers and any related
claims, credits, rights of recovery and setoff with respect to such Inventory,
but only to the extent such rights are assignable.


 


“IRS” means the U.S.
Internal Revenue Service.


 


“Law” means any
international, national, federal, state, provincial or local law, statute,
ordinance, rule, regulation, code, order, judgment, injunction or decree.


 


“Lease Assignment” means
each assignment agreement with respect to a Lease.


 


“Leased Equipment” means
the vehicles, computers, software, servers, machinery and equipment and other
similar items identified on Schedule 1.1(b) leased and used or held
for use by Seller primarily in the operation or conduct of the Optoelectronics
Business. “Leased Equipment” does not include any such items that are Excluded
Assets or Excluded Liabilities.


 


“Leased Premises” means
the real property that is leased by Seller from Third Parties as identified on Schedule 3.7(a).


 


“Leases” means the leases
for the Leased Premises, and “Lease”
refers to any of the Leases.


 


“Licenses” means all
licenses, agreements and other arrangements identified on Schedule 2.1(h),
concerning any Proprietary Information to which Seller is a party to the extent
used or held for use primarily in the operation or conduct of the
Optoelectronics Business. “Licenses” does not include (i) the
Non-assignable Licenses, (ii) generally available shrink-wrap software
licenses (except for such licenses for software running on a computer system
that is included in the Purchased Assets, to the extent the license is
transferable in connection with the transfer of such computer system), or (iii) any
such items primarily related to Excluded Assets or Excluded Liabilities.


 





















 


“Non-assignable Licenses”
means those Licenses of Proprietary Information under which Seller or an
Affiliate of Seller is the licensee that are (i) readily commercially
available software licenses that by their terms will not be transferred upon
the transfer of any computer hardware to Buyer under this Agreement, or (ii) related
to other businesses of Seller or an Affiliate of Seller and not used or held
for use primarily in the operation or conduct of the Optoelectronics Business.


 


“Optoelectronics Business”
means the current design, engineering, manufacturing, marketing, and sale of
optoelectronics components as carried on by Seller as of the date hereof in
Breinigsville, Pennsylvania, and Matamoros, Mexico, including previously
discontinued product lines including lithium niobate modulators, erbium doped
fiber amplifiers, raman amplifiers, thin film filters, garnet, transponders,
SFP transceivers, and XFP transceiversbut excluding (i) the design,
engineering, manufacturing, marketing, sale and distribution of gallium
arsenide and other components that are manufactured at Seller’s other
facilities and not uniquely applicable to optoelectronics applications, even if
the customer’s end use of such products is in an optoelectronics application; (ii) the
design, engineering, manufacturing, marketing, sale and distribution of
undersea pump lasers; (iii) Seller’s integrated circuit manufacturing
facilities and any assets related to Seller’s integrated circuit products; and (iv) any
assembly and test (outside of the Matamoros, Mexico facility), billing, order
entry, fulfillment, accounting, collections, sales and other centralized or
administrative activities that are currently provided by centralized functional
organizations within, or controlled by, Seller that are not being transferred
hereunder.  For avoidance of doubt,
Optoelectronics Business does not include the assets, liabilities or related
business acquired and assumed by Seller from Network Elements, Inc.


 


“Pension Plan” means each “employee
pension benefit plan” (within the meaning of Section 3(2) of ERISA).


 


“Permitted Encumbrances”
means any (i) statutory lien for Taxes, assessments and other governmental
charges or liens of carriers, landlords, warehouseman, mechanics and material
men incurred in the ordinary course of business, which are in each case for
sums not yet due and payable or being contested in good faith by appropriate
proceedings and for which appropriate reserves (if required) are being
maintained in accordance with GAAP, (ii) liens incurred or deposits made
in the ordinary course of the Optoelectronics Business in connection with
workers’ compensation, unemployment insurance and other types of social
security or to secure the performance of tenders, statutory obligations, surety
and appeal bonds and similar obligations, (iii) non-exclusive, limited
licenses granted by Seller or an Affiliate of Seller in connection with sales
of products in the ordinary course of the Optoelectronics Business and (iv) any
Encumbrance or minor imperfection in title or minor encroachments, if any,
that, individually or in the aggregate, (x) are not material in amount, (y) do
not materially interfere with the conduct of the Optoelectronics Business or
with the use of the Purchased Assets to which such Encumbrance, imperfection,
or encroachment related, and (z) do not materially affect the value of the
Purchased Assets or the Optoelectronics Business.


 


“Person” means any
individual, corporation, limited liability company, partnership, firm,
association, joint venture, joint stock company, trust, unincorporated
organization or other entity, or any government or regulatory, administrative
or political subdivision or agency, department or instrumentality thereof.


 





















 


“Post-Closing Tax Period”
means any Tax period beginning after the Closing Date, and, in the case of any
Straddle Period, the portion of such Straddle Period beginning the day after
the Closing Date.


 


“Pre-Closing Tax Period”
means any Tax period ending on or before the Closing Date and, in the case of
any Straddle Period, the portion of such Straddle Period ending on the Closing
Date.


 


“Preferred Stock” means
29,158,297 shares of Buyer’s Series F Preferred Stock issued by Buyer to
Seller pursuant to the Stock Purchase Agreement.


 


“Principal Equipment”
means the computers, servers, machinery, equipment (including any related spare
parts, dies, molds, tools, and tooling), furniture and fixtures, vehicles and
other tangible items used or held for use by Seller primarily in the operation
or conduct of the Optoelectronics Business and listed on Schedule 2.1(b),
together with all maintenance records and other documents relating thereto, but
not the Leased Equipment or any such items that are Excluded Assets.  “Principal Equipment” includes rights to the
warranties received from the manufacturers and distributors of such items and
to any related claims, credits, rights of recovery and setoff with respect to
such items, but only to the extent such rights are assignable.


 


“Promissory Note” means
the promissory note in the principal amount of $4,000,000 (as such amount may
be adjusted pursuant to Section 2.3(b)) issued by Buyer to Seller in
substantially the form set forth as Exhibit D.


 


“Proprietary Information”
means all intellectual property and other information (whether or not
protectable by patent, copyright, mask works or trade secret rights), (i) including,
but not limited to, works of authorship in any and all media, inventions,
discoveries, improvements, patentable subject matter, patents, patent
applications, industrial models, industrial designs, trade secrets, trade
secret rights, software, works, copyrightable subject matters, copyright rights
and registrations, mask works, know-how and show-how, trademarks, trade names,
service marks, emblems, logos, insignia and related marks, the goodwill of any
business symbolized thereby and all common law rights related thereto,
specifications, technical manuals and data, databases, libraries, blueprints,
drawings, designs, techniques, proprietary processes, product information,
business plans and development work-in-process; (ii) all registrations and
applications for the foregoing; and (iii) all rights to obtain renewals,
extensions continuations, continuations-in-part, re-issues, divisions or
similar legal protections related thereto.


 


“Return” means any return,
declaration, report, statement, and any other document required to be filed in
respect of any Tax, including any amendment thereto.


 


“Seller Material Adverse Effect”
means any condition or event that has a material and adverse effect upon the (i) assets,
business, financial condition or results of operations of the Optoelectronics
Business taken as a whole, other than any condition or event (a) resulting
from general economic conditions in the United States or globally, (b) resulting
from conditions in the optoelectronics industry in general and not specific to
the Optoelectronics Business, or (c) arising out of or resulting from
actions of Buyer or a Buyer Designee in connection with this 


 





















 


Agreement; or (ii) ability
of Seller and its Affiliates to consummate the transactions contemplated by
this Agreement or any Collateral Agreement.


 


“Stock Purchase Agreement”
means the Preferred Stock Purchase Agreement to be entered into between Buyer,
Seller, and the other parties named therein, together with the other agreements
collateral to it, relating to Seller’s acquisition of the Preferred Stock.


 


“Straddle Period” means
any Tax period that begins on or before and ends after the Closing Date.


 


“Subsidiaries” means the
entities listed on Schedule 3.1(b).


 


“Taxes” means all taxes of
any kind, and all charges, fees, customs, levies, duties, imposts, required
deposits or other assessments, including, without limitation, all net income,
capital gains, gross income, gross receipt, property, franchise, sales, use,
excise, withholding, payroll, employment, social security, worker’s
compensation, unemployment, occupation, capital stock, ad valorem, value added,
transfer, gains, profits, net worth, asset, transaction, and other taxes, and
any interest, penalties or additions to tax with respect thereto, imposed upon
any Person by any taxing authority or other Governmental Body under applicable
Law.


 


“Third Party” means any
Person not an Affiliate of the other referenced Person or Persons.


 


“Transition Services Agreement”
means the agreement in substantially the form set forth as Exhibit C.


 


“TriQuint Mexico” means
TriQuint de Mexico S. de R.L. de C.V.


 


“Welfare Plan” means each “employee
welfare benefit plan” (within the meaning of Section 3(1) of ERISA).


 


1.2                               Additional
Defined Terms


 


For purposes of this Agreement, the following terms shall have the
meanings specified in the Sections indicated below:


 


	
  Term

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  “Additional Principal Amount”

  	
   

  	
  Section 2.3(b)

  
	
  “Agreement”

  	
   

  	
  Preamble

  
	
  “Asset Acquisition Statement”

  	
   

  	
  Section 5.3

  
	
  “Assumed Liabilities”

  	
   

  	
  Section 2.4

  
	
  “Buyer”

  	
   

  	
  Preamble

  
	
  “Closing Date”

  	
   

  	
  Section 7.3

  
	
  “Collateral Agreements”

  	
   

  	
  Recital D

  
	
  “Deposit Agreement”

  	
   

  	
  Section 5.9(a)

  
	
  “Deposit Holder”

  	
   

  	
  Section 5.9(a)

  
	
  “Excluded Assets”

  	
   

  	
  Section 2.2

  



 





















 


	
  “Excluded Leased Equipment”

  	
   

  	
  Section 5.5(c)

  
	
  “Excluded Liabilities”

  	
   

  	
  Section 2.5

  
	
  “Financial Statements”

  	
   

  	
  Section 3.12(a)

  
	
  “Indemnified Party”

  	
   

  	
  Section 9.2(a)

  
	
  “Indemnifying Party”

  	
   

  	
  Section 9.3(a)

  
	
  “Licensed Intellectual Property”

  	
   

  	
  Section 3.13(a)

  
	
  “Losses”

  	
   

  	
  Section 9.2(a)

  
	
  “Material Contracts”

  	
   

  	
  Section 3.11(a)

  
	
  “Non-assignable Assets”

  	
   

  	
  Section 2.6(b)

  
	
  “Purchase Price”

  	
   

  	
  Section 2.3

  
	
  “Purchased Assets”

  	
   

  	
  Section 2.1

  
	
  “Purchased Leased Equipment”

  	
   

  	
  Section 5.5(c)

  
	
  “Required Consents”

  	
   

  	
  Section 2.6(c)

  
	
  “Seller”

  	
   

  	
  Preamble

  
	
  “Term Sheets”

  	
   

  	
  Section 4.6

  
	
  “Third-Party Claim”

  	
   

  	
  Section 9.3(a)

  
	
  “Transferred Employees”

  	
   

  	
  Section 5.4(a)

  
	
  “TriQuint”

  	
   

  	
  Preamble

  
	
  “WARN Act”

  	
   

  	
  Section 5.4(f)

  



 


1.3                               Other
Definitional and Interpretive Matters


 


Unless otherwise expressly provided, for purposes of this Agreement,
the following rules of interpretation shall apply:


 


(a)                                  Gender
and Number.  Any reference in this
Agreement to gender shall include all genders, and words imparting the singular
number only shall include the plural and vice versa.


 


(b)                                 Headings.  The provision of a Table of Contents, the
division of this Agreement into Articles, Sections and other subdivisions and
the insertion of headings are for convenience of reference only and shall not
affect or be utilized in construing or interpreting this Agreement.  All references in this Agreement to any “Section”
are to the corresponding Section of this Agreement unless otherwise
specified.


 


(c)                                  Reasonable
Commercial Efforts. Reasonable commercial efforts means that the obligated
party is required to make a diligent, reasonable and good faith effort to
accomplish the applicable objective. 
Such obligation, however, does not require an expenditure of material
funds or the incurrence of a material liability on the part of the obligated
party, nor does it require that the obligated party act in a manner that would
be contrary to normal commercial practices in order to accomplish the
objective. The fact that the objective is or is not actually accomplished is
not, of itself, dispositive that the obligated party did or did not in fact
utilize its reasonable commercial efforts in attempting to accomplish the
objective.


 


(d)                                 Schedules
and Exhibits.  The Schedules and
Exhibits attached to this Agreement shall be construed with and as an integral
part of this Agreement to the same extent as if the same had been set forth
verbatim herein.


 





















 


2.                                      Purchase
and Sale of the Optoelectronics Business


 


2.1                               Purchase
and Sale of Assets


 


Upon the terms and subject to the conditions of this Agreement, on the
Closing Date, TriQuint shall, or shall cause one or more of the Subsidiaries,
as appropriate, to, grant, bargain, sell, transfer, assign, convey and deliver
to Buyer or one or more Buyer Designees, and Buyer or one or more Buyer
Designees shall purchase, acquire and accept from TriQuint or the applicable
Subsidiary, all of the right, title and interest in, to and under the Purchased
Assets that TriQuint or the applicable Subsidiary owns, leases, licenses,
possesses, or uses, wherever located, free and clear of Encumbrances.  For purposes of this Agreement, the term “Purchased Assets” means the assets,
properties and rights set forth or described in paragraphs (a) through (p)
below (except in each case for the Excluded Assets):


 


(a)                                  the
Assumed Leases;


 


(b)                                 the
Principal Equipment;


 


(c)                                  the
Purchased Leased Equipment;


 


(d)                                 the
Fixtures and Supplies;


 


(e)                                  the
Inventory;


 


(f)                                    the
Assigned Intellectual Property;


 


(g)                                 the
Contracts;


 


(h)                                 the
Licenses;


 


(i)                                     the
Accounts Receivable;


 


(j)                                     the
Business Records;


 


(k)                                  all
of the issued and outstanding equity participation rights and other forms of
capital stock of TriQuint Mexico;


 


(l)                                     the
Governmental Permits but only to the extent that such Governmental Permits are
assignable or transferable to Buyer;


 


(m)                               the
personnel records of Transferred Employees;


 


(n)                                 all
prepaid expenses for leased and rented property to the extent such property is
being transferred;


 


(o)                                 the
goodwill of the Optoelectronics Business; and


 





















 


(p)                                 all
rights and claims of any kind against Third Parties relating to the other
categories of Purchased Assets described in paragraphs (a) through (o)
above, known or unknown, accrued or contingent.


 


2.2                               Excluded
Assets


 


Notwithstanding anything in Section 2.1 to the contrary, it is
hereby expressly acknowledged and agreed that the Purchased Assets shall not
include, and neither TriQuint nor any Subsidiary is granting, bargaining,
selling, transferring, assigning, conveying or delivering to Buyer or a Buyer
Designee, and neither Buyer nor any Buyer Designee is purchasing, acquiring or
accepting from TriQuint or any Subsidiary, any of the rights, properties or
assets set forth or described in paragraphs (a) through (i) below.  The rights, properties and assets expressly
excluded by this Section 2.2 or otherwise excluded by the terms of Section 2.1
from the Purchased Assets are referred to herein as the “Excluded Assets.”  For the purpose of this Section 2.2, the
phrase “Affiliate of Seller” shall not include TriQuint Mexico.


 


(a)                                  any
of Seller’s or any Affiliate of Seller’s receivables, cash, cash equivalents,
bank deposits or similar cash items or employee receivables;


 


(b)                                 any
(i) confidential personnel records pertaining to any Business Employee, or
(ii) other Business Records that Seller or any Affiliate of Seller is
required by Law to retain; provided, however, that Seller shall advise Buyer as
to the nature and extent of all materials so retained, and Buyer shall have the
right, to the extent permitted by Law, to receive (at Buyer’s expense) copies
of any portions of such retained confidential personnel records and other books
and records that relate to the Optoelectronics Business, the Purchased Assets,
the Assumed Liabilities or the Transferred Employees; and (iii) any
information management system of Seller or any Affiliate of Seller other than
those used or held for use primarily in the operation or conduct of the
Optoelectronics Business and contained within computer hardware included as a
Purchased Asset pursuant to Sections 2.1(c) and (d);


 


(c)                                  any
claim, right or interest of Seller or any Affiliate of Seller in or to any
refund, rebate, abatement or other recovery for Taxes, together with any
interest due thereon or penalty rebate arising therefrom, for any Pre-Closing
Tax Period;


 


(d)                                 the
Non-assignable Licenses and the Excluded Leased Equipment;


 


(e)                                  any
insurance policies or rights of proceeds thereof;


 


(f)                                    except
as specifically provided in Section 5.4, any of the assets of the Benefits
Plans;


 


(g)                                 the
rights, claims or causes of action of Seller or any Affiliate of Seller against
Third Parties set forth on Schedule 2.2(g) and relating to the
assets, properties or operations of the Optoelectronics Business of Seller or
any Affiliate of Seller arising out of transactions occurring on or before the
Closing Date; and


 


(h)                                 all
other assets, properties, interests and rights of Seller or any Affiliate of
Seller not identified in Section 2.1.


 





















 


2.3                               Purchase
Price


 


(a)                                  Upon
the terms and subject to the conditions of this Agreement, in consideration of
the grant, bargain, sale, transfer, assignment, conveyance and delivery by
Seller of the Purchased Assets to Buyer or a Buyer Designee, and in addition to
assuming the Assumed Liabilities, Buyer or a Buyer Designee shall issue or pay
to TriQuint at the Closing (collectively, the “Purchase Price”):


 


(1)                                  thirteen million five
hundred thousand dollars ($13,500,000) in cash, taking into account the
provisions of Section 5.9(a);


 


(2)                                  the Preferred Stock;
and


 


(3)                                  the Promissory Note,
taking into account the provisions of Section 2.3(b).


 


(b)                                 The
principal amount of the Promissory Note shall be four million dollars
($4,000,000), plus an additional amount (the “Additional
Principal Amount”) determined by the provisions of this
section.  The Additional Principal Amount
is an amount equal to the aggregate value of the Accounts Receivable as of the
Closing Date minus the aggregate balance of the Accounts Payable as of the
Closing Date.  For planning purposes,
Seller shall advise Buyer as to its estimate of the Additional Principal Amount
within four business days prior to the Closing Date; it being understood that
Seller shall have no liability for any inaccuracy in such estimate.  The true amounts of Accounts Receivable and
Accounts Payable to be measured as of the Closing Date shall be determined by
Seller, and written notice thereof shall be delivered to Buyer along with
reasonable documentation to support Seller’s determination, no later than the
fifteenth Business Day after the Closing Date. 
Buyer shall have a period of up to fifteen Business Days to review the
amounts of Accounts Receivable and Accounts Payable as of the Closing Date;
Seller shall reasonably co-operate in such review.  In the event Buyer disputes such amount,
Buyer shall notify Seller of such dispute in reasonable detail within such
fifteen Business Day period.  The parties
shall in good faith negotiate to resolve any such dispute for a period of up to
twenty days.  To the extent Buyer does
not dispute such amounts within such fifteen Business Day period, or the
parties are able to resolve their dispute (or any elements thereof), the
amounts so determined shall be final and binding.  Any amounts still in dispute after such
twenty day period shall be conformed to reflect Seller’s determination of the
Additional Principal Amount, and the Note will be revised to reflect the
Additional Principal Amount so determined, subject to the following
provisions.  Notwithstanding the
foregoing, no later than the date that is ninety (90) days after the Closing
Date, Buyer may have a certified independent auditor reasonably acceptable to
Seller perform an audit of Seller’s records and other records relevant to the
calculation of the Additional Principal Amount to assess any such amounts still
in dispute, at Buyer’s expense, subject to the last sentence of this
paragraph.  The audit shall be conducted
upon reasonable advance written notice during normal business hours, and shall
be subject to a confidentiality agreement reasonably acceptable to Seller.  The auditor shall report to only Buyer the
amount of any miscalculation and the basis thereof, and shall provide a copy of
the report to Seller.  If the audit shows
any miscalculation, the parties shall immediately adjust the Promissory Note to
reflect the audited amount.  In the event
that the audit establishes that Seller’s determination of the Additional
Principal Amount was more than ten percent (10%) 


 





















 


greater than
the audited Additional Principal Amount, Seller shall reimburse Buyer’s
expenses for the audit.


 


2.4                               Assumed
Liabilities


 


Upon the terms and subject to the conditions of this Agreement, on the
Closing Date, Buyer or one or more Buyer Designee shall execute and deliver to
Seller each Assignment and Assumption Agreement and Bill of Sale pursuant to
which Buyer or any such Buyer Designee shall accept, assume and agree to pay,
perform or otherwise discharge, in accordance with the respective terms and
subject to the respective conditions thereof, the Assumed Liabilities. For
purposes of this Agreement, the term “Assumed
Liabilities” means the liabilities and obligations set forth or
described in paragraphs (a) through (f) below, whether or not any
such liability or obligation has a value for accounting purposes or is carried
or reflected on or specifically referred to in Seller’s financial statements:


 


(a)                                  the
liabilities and obligations arising after the Closing Date under the Assumed
Leases and the transferred Contracts, Licenses and Government Permits;


 


(b)                                 with
respect to the Optoelectronics Business, any product warranty liabilities
arising from sales of products in the ordinary course of business on or before
the Closing Date in an amount not to exceed $3,495,540;


 


(c)                                  (i) the
Permitted Encumbrances and (ii) the other Encumbrances related to the
Purchased Assets that are specifically identified on Schedule 2.4(c);


 


(d)                                 the
Accounts Payable;


 


(e)                                  the
obligations and liabilities with respect to the Optoelectronics Business or the
Purchased Assets arising from, or in connection with, the conduct of the
Optoelectronics Business or the ownership of the Purchased Assets by Buyer or a
Buyer Designee after the Closing Date;


 


(f)                                    the
obligations and liabilities of TriQuint Mexico to the extent the same may be
asserted against that entity’s corporate parent after the Closing Date; and


 


(g)                                 the
employment-related obligations and liabilities arising as a result of the
Transferred Employees’ employment with Buyer or Buyer Designees after the
Closing Date.


 


2.5                               Excluded
Liabilities


 


Neither Buyer nor any Buyer Designee shall assume or be obligated to
pay, perform or otherwise assume or discharge any liabilities or obligations of
Seller or any Affiliate of Seller, whether direct or indirect, known or
unknown, absolute or contingent, except for the Assumed Liabilities (all of
such liabilities and obligations not so assumed being referred to herein as the
“Excluded Liabilities”) and Seller
shall pay, perform and discharge all such Excluded Liabilities. For the
avoidance of doubt, the parties agree that the Excluded Liabilities include,
but are not limited to, any and all liabilities or obligations set forth or
described in paragraphs (a) 


 





















 


through (g) below,
whether or not any such liability or obligation has a value for accounting
purposes or is carried or reflected on or specifically referred to in Seller’s
financial statements:


 


(a)                                  any
Excluded Taxes;


 


(b)                                 any
Environmental Liabilities;


 


(c)                                  any
and all liabilities or obligations arising out of or related to any Excluded
Asset;


 


(d)                                 any
and all liabilities or obligations relating to or in connection with (i) the
employment and any termination of such employment by Seller of any employee or
former employee of Seller on or before the Closing Date; and/or (ii) any
employee’s or former employee’s or his/her dependents’ rights or obligations
under any fringe benefit of employment with Seller, including any Benefit Plan
of Seller or an Affiliate of Seller;


 


(e)                                  any
and all liabilities or obligations in connection with, or relating to, any
actions, suits, claims or proceedings against Seller which arise or accrue on
or before the Closing Date;


 


(f)                                    any
benefit liabilities relating to or arising in connection with Section 4980B
of the Code (COBRA) to provide continuation of health care coverage to
employees or former employees of Seller or their dependents arising from a
qualifying event occurring on or before the Closing Date; and


 


(g)                                 any
liabilities of the Benefit Plans.


 


2.6                               Further
Assurances; Further Conveyances and Assumptions; Consent of Third Parties


 


(a)                                  From
time to time following the Closing, Seller and Buyer shall, and shall cause
their respective Affiliates to, execute, acknowledge and deliver all such
further conveyances, notices, assumptions, releases and acquittances and such
other instruments, and shall take such further actions, as may be necessary or
appropriate to assure fully to Buyer and its Affiliates and each of their
respective successors or assigns, all of the properties, rights, titles,
interests, estates, remedies, powers and privileges intended to be conveyed to
Buyer or a Buyer Designee under this Agreement and the Collateral Agreements
and to assure fully to Seller and its Affiliates and each of their respective
successors and assigns, the assumption of the liabilities and obligations
intended to be assumed by Buyer or a Buyer Designee under this Agreement and
the Collateral Agreements, and to otherwise make effective the transactions
contemplated hereby and thereby (including (i) transferring back to Seller
any asset or liability not contemplated by this Agreement to be a Purchased Asset
or an Assumed Liability, respectively, which asset or liability was transferred
to Buyer or a Buyer Designee at the Closing and (ii) transferring to Buyer
or a Buyer Designee any asset or liability contemplated by this Agreement to be
a Purchased Asset or an Assumed Liability, respectively, which was not
transferred to Buyer or a Buyer Designee at the Closing).


 





















 


(b)                                 Nothing
in this Agreement nor the consummation of the transactions contemplated hereby
shall be construed as an attempt or agreement to assign any Purchased Asset
that by its terms or by Law is non-assignable without the consent of a Third
Party or a Governmental Body or is cancelable by a Third Party in the event of
an assignment (“Non-assignable Assets”)
unless and until such consent shall have been obtained. Seller shall, and shall
cause its Affiliates to use commercially reasonable efforts to obtain such
consents promptly, and Buyer shall cooperate with Seller in such efforts.  To the extent permitted by applicable Law, in
the event consents to the assignment thereof cannot be obtained, Seller and
Buyer shall, and shall cause their respective Affiliates to, cooperate in a
mutually agreeable arrangement under which (i) Buyer or a Buyer Designee
would obtain the benefits and assume the obligations under such Non-assignable
Assets in accordance with this Agreement including by sub-contracting,
sub-licensing, or sub-leasing to Buyer or a Buyer Designee, or (ii) such
Non-assignable Assets would be held, as of and from the Closing Date, by Seller
in trust for Buyer or a Buyer Designee and the covenants and obligations
thereunder would be performed by Buyer or a Buyer Designee in Seller’s name and
all benefits and obligations existing thereunder would be for Buyer’s or the
applicable Buyer Designee’s account. Seller shall, and shall cause its
Affiliates to, also take or cause to be taken at Buyer’s or a Buyer Designee’s
expense such actions in its name or otherwise as Buyer may reasonably request
so as to provide Buyer or the applicable Buyer Designee with the benefits of
the Non-assignable Assets and to effect collection of money or other
consideration that becomes due and payable under the Non-assignable Assets, and
Seller shall promptly pay over to Buyer the applicable Buyer Designee all money
or other consideration received by it in respect to all Non-assignable Assets.


 


(c)                                  Seller
shall, and shall cause its Affiliates to, use their respective commercially
reasonable efforts to obtain, or to cause to be obtained, any consent,
substitution, approval, or amendment required from any Third Party to transfer
all obligations under any and all Contracts, Leases, Licenses, Governmental
Permits, certificates, approvals, authorizations or other rights or obligations
or liabilities that constitute Assumed Liabilities to Buyer so that, in any
such case, Buyer and its Affiliates shall be solely responsible for such
Assumed Liabilities and shall enjoy all the rights and privileges set forth
under the Contracts, Leases, Licenses, Governmental Permits, certificates,
approvals, authorizations or other rights or obligations giving rise thereto
(the “Required Consents”).  The Required Consents are listed on Schedule 2.6(c).  Buyer shall, and shall cause its Affiliates
to, use their respective commercially reasonable efforts to assist Seller in
obtaining the Required Consents.


 


(d)                                 As
of and from the Closing Date, Seller on behalf of itself and its Affiliates
authorizes Buyer, to the extent permitted by applicable Law and the terms of
the Non-assignable Assets, at Buyer’s expense, to perform all the obligations
and receive all the benefits of Seller or its Affiliates under the
Non-assignable Assets and appoints Buyer its attorney-in-fact to act in its
name on its behalf or in the name of the applicable Affiliate of Seller and on
such Affiliate’s behalf with respect thereto.


 


(e)                                  Notwithstanding
anything in this Agreement to the contrary, unless and until any consent or
approval with respect to any Non-assignable Asset is obtained, such
Non-assignable Asset shall not constitute a Purchased Asset and any associated
liability shall not constitute an Assumed Liability for any purpose under this
Agreement.


 





















 


2.7                               Proprietary
Information


 


Unless expressly set forth in this Agreement or in any Collateral
Agreement, no title, right or license of any kind is granted to Buyer pursuant
to this Agreement with respect to Proprietary Information of Seller or any
Affiliate of Seller (other than Assigned Intellectual Property), either
directly or indirectly, by implication, by estoppel or otherwise.


 


2.8                               Bulk
Sales Law


 


Subject to the provisions of Section 9.2(b)(ii), Buyer hereby
waives compliance by Seller with the requirements and provisions of any “bulk-transfer”
Laws of any jurisdiction, including Article 6 of the Pennsylvania Uniform
Commercial Code, that may otherwise be applicable with respect to the sale of
any or all of the Purchased Assets to Buyer or a Buyer Designee.


 


2.9                               Taxes


 


(a)                                  All
(i) recording and filing fees and (ii) transfer, documentary, sales,
use, stamp, registration, value added and other such Taxes incurred in
connection with the transactions contemplated by this Agreement shall be shared
equally by Buyer and Seller.


 


(b)                                 All
personal property Taxes and similar ad valorem obligations levied with respect
to the Purchased Assets for a Straddle Period shall be apportioned between
Seller and Buyer based on the number of days of such Straddle Period, and
Seller shall be liable for the proportionate amount of such Taxes that is
attributable to the Pre-Closing Tax Period within such Straddle Period, and
Buyer shall be liable for the proportionate amount of such Taxes that is
attributable to the Post-Closing Tax Period within such Straddle Period. Any
refund, rebate, abatement or other recovery of such Taxes attributable to the
Pre-Closing Tax Period shall be for the account of the Seller, and any refund,
rebate, abatement or other recovery of such Taxes attributable to the
Post-Closing Tax Period shall be for the account of the Buyer.


 


2.10                        Buyer
Designee


 


The parties agree that Buyer may assign the right to purchase certain
of the Purchased Assets to one or more Buyer Designees or that one or more
Buyer Designees may enter into a Collateral Agreement. Notwithstanding any such
assignment or execution of a Collateral Agreement by a Buyer Designee, Buyer
shall remain liable for, and any such assignment or execution shall not relieve
Buyer of, its obligations hereunder or thereunder.  Any reference to Buyer in this Agreement
shall to the extent applicable also be deemed a reference to the applicable
Buyer Designee, except where in context of this Agreement such use would not be
appropriate.


 


3.                                      Representations
and Warranties of Seller


 


TriQuint, for itself and its applicable Subsidiaries, hereby represents
and warrants to Buyer and any Buyer Designee as follows, which representations
and warranties are true, correct, and complete as of the date of this Agreement
(unless made as of a specific date) and will be true, correct, and complete as
of the Closing Date (as though made then and as though the 


 





















 


Closing Date
were substituted for the date of this Agreement throughout this Section 3),
except as set forth in the schedules hereto.


 


3.1                               Organization
and Qualification; Subsidiaries


 


(a)                                  TriQuint
is a corporation duly organized, validly existing and in good standing under
the Laws of the State of Delaware and has all requisite corporate power and
authority to carry on its business (including, without limitation, the
Optoelectronics Business) as currently conducted by it and to own or lease and
operate its assets (including, without limitation, the Purchased Assets).  TriQuint is duly qualified to do business and
is in good standing as a foreign corporation (in any jurisdiction that
recognizes such concept) in each jurisdiction where the ownership or operation
of the Purchased Assets or the operation or conduct of the Optoelectronics
Business requires such qualification, except where the failure to be so
qualified or in good standing, individually or in the aggregate, has not had and
could not reasonably be expected to have a Seller Material Adverse Effect.


 


(b)                                 Schedule 3.1(b) sets
forth a list of each Affiliate of Seller that has title to any Purchased Asset
or an obligation for an Assumed Liability. 
Except as set forth on Schedule 3.1(b), each Subsidiary is duly
organized, validly existing and in good standing (in any jurisdiction that
recognizes such concept) under the Laws of its jurisdiction of organization and
has all requisite corporate or similar power and authority to own, lease and
operate the Purchased Assets owned by it and to carry on its portion of the
Optoelectronics Business as presently conducted and is duly qualified to do
business and is in good standing as a foreign corporation or other entity (in
any jurisdiction that recognizes such concept) in each jurisdiction where the
ownership or operation of its properties and assets or the conduct of its
business requires such qualification, except for failures to be so duly
organized, validly existing, qualified or in good standing that, individually
or in the aggregate, have not had and could not reasonably be expected to have
a Seller Material Adverse Effect.  The
Subsidiaries listed on Schedule 3.1(b) are the only Affiliates of
Seller that have title to any Purchased Asset or any obligation that is an
Assumed Liability, in each case related to the Optoelectronics Business as
currently conducted.


 


3.2                               Authorization


 


(a)                                  TriQuint
has all requisite corporate power and authority to execute, deliver and perform
this Agreement and the Collateral Agreements to which it will be a party and to
effect the transactions contemplated hereby and thereby, and the execution,
delivery and performance of this Agreement and the Collateral Agreements to
which it will be a party has been duly authorized by all requisite corporate
action.


 


(b)                                 Each
Subsidiary has all requisite corporate power and authority to execute and
deliver the Collateral Agreements to which it will be a party and to effect the
transactions contemplated thereby and has duly authorized the execution,
delivery and performance of the Collateral Agreements to which it will be a
party by all requisite corporate action.


 


3.3                               Binding
Effect


 


This Agreement has been duly executed and delivered by TriQuint and
this Agreement is, and the Collateral Agreements to which TriQuint and each
Subsidiary will be a party when duly 


 





















 


executed and
delivered by TriQuint or such Subsidiary will be, valid and legally binding
obligations of TriQuint or such Subsidiary, enforceable against TriQuint or
such Subsidiary, as applicable, in accordance with their respective terms,
except to the extent that enforcement of the rights and remedies created hereby
and thereby may be affected by bankruptcy, reorganization, moratorium,
insolvency and similar Laws of general application affecting the rights and
remedies of creditors and by general equity principles.


 


3.4                               Non-Contravention;
Consents


 


(a)                                  Assuming
that all Required Consents have been obtained, the execution, delivery and
performance of this Agreement by TriQuint and the Collateral Agreements by
TriQuint or any Subsidiary that is a party thereto and the consummation of the
transactions contemplated hereby and thereby do not and will not: (i) result
in a breach or violation of, or conflict with, any provision of TriQuint’s or
the applicable Subsidiary’s charter, by-laws or similar organizational
document, (ii) violate or result in a breach of or constitute an
occurrence of default under any provision of, result in the acceleration or
cancellation of any obligation under, or give rise to a right by any party to
terminate or amend its obligations under, any mortgage, deed of trust,
conveyance to secure debt, note, loan, indenture, lien, lease, agreement,
license, permit, instrument, order, judgment, decree or other arrangement or
commitment to which TriQuint or the applicable Subsidiary is a party or by
which it is bound and which relates to the Optoelectronics Business or the
Purchased Assets, or (iii) violate any order, judgment, decree, rule or
regulation of any court or any Governmental Body having jurisdiction over
TriQuint, a Subsidiary, the Optoelectronics Business or the Purchased Assets,
other than in the case of clauses (ii) and (iii), any such violations,
breaches, defaults, accelerations or cancellations of obligations or rights
that, individually or in the aggregate, have not had and could not reasonably
be expected to have a Seller Material Adverse Effect.


 


(b)                                 No
consent, approval, order or authorization of, or registration, declaration or
filing with, any Person is required to be obtained by Seller in connection with
the execution, delivery and performance of this Agreement or the Collateral
Agreements or for the consummation of the transactions contemplated hereby or
thereby by TriQuint or a Subsidiary, except for (i) any filings required
to be made under any applicable Mexican Laws relating to transfers of interests
in corporations, (ii) the Required Consents, and (iii) such consents,
approvals, orders, authorizations, registrations, declarations or filings the
failure of which to be obtained or made, individually or in the aggregate, have
not had and could not reasonably be expected to have a Seller Material Adverse
Effect.


 


3.5                               Title
to Property; Principal Equipment


 


(a)                                  Seller
has and at the Closing will have good and valid title in and to, or a valid and
binding leasehold interest or license in, the personal tangible Purchased
Assets free and clear of any Encumbrance.


 


(b)                                 Each
personal tangible Purchased Asset is in good repair and operating condition,
suitable for the purposes for which it is currently being used, but is
otherwise being transferred on a “where is” and, as to condition, “as is”
basis.


 





















 


3.6                               Permits;
Licenses


 


Except as set forth on Schedule 3.6, there are no material Governmental
Permits necessary for or used by Seller to operate the Optoelectronics Business
as now being operated or to use or occupy the Leased Premises, which
Governmental Permits are required by currently effective Laws. Seller owns,
holds or possesses all Governmental Permits necessary to own or lease, operate
and use the Purchased Assets or own, use or occupy the Leased Premises and to
carry on and conduct the Optoelectronics Business and its operations as
presently conducted, except for such Governmental Permits, the absence of
which, individually or in the aggregate, has not had and could not reasonably
be expected to have a Seller Material Adverse Effect.  The Governmental Permits held, owned or
possessed by Seller are valid and in full force and effect and no proceeding is
recorded, pending or, to Seller’s knowledge, threatened seeking the suspension,
modification, limitation or revocation of any such Governmental Permit. Seller
is not in violation of or default under any such Governmental Permits which,
individually or in the aggregate, has had or could reasonably be expected to
have a Seller Material Adverse Effect.


 


3.7                               Real
Estate; Environmental Matters


 


(a)                                  Schedule 3.7(a) contains
a complete and accurate list of the Leased Premises and the Assumed Leases.  Seller has provided Buyer with a complete and
correct copy of each Assumed Lease. Each Assumed Lease is in full force and
effect and, to Seller’s knowledge, Seller has not violated, and the landlord
has not waived, any of the material terms or conditions of any Assumed Lease
and, to Seller’s knowledge, all the covenants to be performed by Seller and the
landlord under each Assumed Lease prior to the date hereof have been performed
in all material respects.


 


(b)                                 The
use of the Leased Premises, as presently used by the Optoelectronics Business,
does not violate any local zoning or similar land use laws or governmental
regulations which violation, individually or in the aggregate, has had or could
reasonably be expected to have a Seller Material Adverse Effect. Seller is not
in violation of or in noncompliance with any covenant, condition, restriction,
order or easement affecting any of the Leased Premises where such violation or
noncompliance, individually or in the aggregate, has had or could reasonably be
expected to have a Seller Material Adverse Effect.  There is no condemnation or, to Seller’s
knowledge, threatened condemnation affecting any of the Leased Premises.


 


(c)                                  In
respect of the Optoelectronics Business and the Leased Premises:


 


(1)                                  none of Seller, any
of the Leased Premises, or the operations of the Optoelectronics Business, is
subject to any on-going investigation by, order from or agreement with any
Person respecting (A) any Environmental Law, or (B) any remedial
action arising from the release or threatened release of a Hazardous Substance
into the environment;


 


(2)                                  Seller is not subject
to any judicial or administrative proceeding, order, judgment, decree or
settlement alleging or addressing a violation of or liability under any
Environmental Law, and Seller has not received any citation, directive,
inquiry, notice, order, summons, warning, or other communication that relates
to 


 





















 


Hazardous Substances, any alleged, actual, or potential violation or
failure to comply with an applicable Environmental Law, or any alleged, actual,
or potential obligation to undertake or bear the cost of any Environmental
Liabilities with respect to the premises from which the Optoelectronics
Business is conducted;


 


(3)                                  Seller has filed all
notices required to be filed under any Environmental Law indicating past or
present treatment, storage or disposal of a Hazardous Substance or reporting a
spill or release of a Hazardous Substance into the environment except where the
failure to file any such notices, individually or in the aggregate, has not had
and could not reasonably be expected to have a Seller Material Adverse Effect;
and


 


(4)                                  to Seller’s  knowledge, there have been no releases, or
threatened releases of any Hazardous Substances into, on or under any of the
Leased Premises, in any case in such a way as to create any liability
(including the costs of investigation and remediation) under any applicable
Environmental Law.


 


3.8                               Compliance
With Laws


 


With respect to the Optoelectronics Business conducted by Seller,
Seller is in compliance with all applicable Laws and all decrees, orders,
judgments, writs, injunctions, permits and licenses of or from Governmental
Bodies by which the Optoelectronics Business or the Purchased Assets are bound
or affected except for instances of noncompliance that, individually or in the
aggregate, have not had and could not reasonably be expected to have a Seller
Material Adverse Effect.


 


3.9                               Litigation


 


There is no action, suit, consent decree, proceeding, arbitration or
governmental investigation pending or, to Seller’s knowledge, threatened (i) against
Seller, the Optoelectronics Business or the Purchased Assets, which seeks to
restrain or enjoin the consummation of the transactions contemplated hereby, or
(ii) with respect to the Optoelectronics Business, the Purchased Assets,
the Assumed Liabilities or the Transferred Employees that, individually or in
the aggregate, has had or could be reasonably expected to have a Seller
Material Adverse Effect. Further to Seller’s knowledge there is no basis for
any such action, suit, proceeding, arbitration or investigation that is not yet
pending or threatened.


 


3.10                        Business
Employees


 


(a)                                  Schedule 3.10(a) shows
for each Business Employee, the name, title, location, service start date, annual
salary or wages as of such date, aggregate annual compensation for Seller’s
most recent completed fiscal year and whether such employee is represented by
the Confederacion de Trabajadores de Mexico. Except as set forth on Schedule 3.10(a),
none of the Business Employees is covered by any union, collective bargaining
agreement or other similar labor agreement, formal or informal, nor, to Seller’s
knowledge, has there been any labor union organizing activities relating to the
Business Employees within the past two years.


 





















 


(b)                                 With
respect to each Benefit Plan identified on Schedule 3.10(b), Seller has
made available to the Buyer true and complete copies of the most recent summary
plan or other written description thereof. Each Benefit Plan listed on Schedule 3.10(b) has
been operated in material compliance with all applicable Laws, including
ERISA.  Each Benefit Plan that is
intended to be qualified under Section 401(a) of the Code has
received a favorable determination letter, or has pending or has time remaining
in which to file an application for such determination, from the IRS, and
Seller is not aware of any reason why any such determination letter should be
revoked or not issued or reissued. 
Seller is not a party to any agreement, contract, arrangement or plan
that has resulted or could result, separately or in the aggregate, in the
payment of any “excess parachute payments” within the meaning of Section 280G
of the Code or any similar provisions of foreign, state or local law.


 


(c)                                  With
respect to the Optoelectronics Business, there is not presently pending or
existing, and to Seller’s knowledge there is not threatened, (i) any
strike, slowdown, picketing, or work stoppage, (ii) any application for
certification of a collective bargaining agent, or (iii) any controversies
between Seller and any of its employees that (in the case of clause (iii) only)
individually or in the aggregate, have had or could reasonably be expected to
have a Seller Material Adverse Effect.


 


3.11                        Contracts


 


(a)                                  Schedule 3.11
contains a complete and accurate list of all existing Contracts of Seller that
are not cancelable by notice to the other parties in thirty days or less and:


 


(1)                                  involve or could
reasonably be expected to involve payments by or to Seller either of more than
$50,000 per year or more than $100,000 in the aggregate over the full term
thereof;


 


(2)                                  are with Business
Employees;


 


(3)                                  contain any provision
or covenant prohibiting or limiting the ability of Seller to engage in any
activity relating to or involving the Optoelectronics Business (including
geographical restrictions) or to compete, directly or indirectly, with any
Person as to the Optoelectronics Business;


 


(4)                                  create or obligate
Seller to participate in any joint venture or similar arrangement with respect
to or affecting the Optoelectronics Business or the Purchased Assets;


 


(5)                                  relate to any
material license relating to the Optoelectronics Business or the Purchased
Assets; and


 


(6)                                  constitute any other
agreement, commitment, arrangement or plan that is material to the
Optoelectronics Business (the Contracts listed on Schedule 3.11,
collectively, the “Material Contracts”).


 


(b)                                 Each
Material Contract is valid, binding and enforceable against TriQuint or the
applicable Subsidiary and, to Seller’s knowledge, the other parties thereto in
accordance 


 





















 


with its terms
and is in full force and effect.  Seller
has not received any notice that it is in default under or in breach of or is
otherwise delinquent in performance under any Material Contract, and, to Seller’s
knowledge, each of the other parties thereto has performed all obligations
required to be performed by it under, and is not in default under, any Material
Contract and no event has occurred that, with notice or lapse of time, or both,
would constitute such a default, except for breaches, failures of performance
or defaults that, individually or in the aggregate, have not had and could not
reasonably be expected to have a Seller Material Adverse Effect. Seller has
made available to Buyer true and complete copies of all Material Contracts.


 


3.12                        Revenues;
Financial Information; Absence of Certain Changes


 


(a)                                  Schedule 3.12(a) sets
forth (1) a statement of profit and loss for the Optoelectronics Business
(including the operations of TriQuint Mexico) for fiscal years 2003 and 2004
and for each fiscal quarter of fiscal years 2003 and 2004, as well as a balance
sheet of TriQuint Mexico as of December 31, 2003 and December 31,
2004 (collectively, the “Financial Statements”).  The Financial Statements were derived from
and have been prepared in accordance with the books and records of TriQuint and
the Subsidiaries (which are accurate and complete in all material respects) on
a consistent basis throughout the periods covered thereby and presents fairly
the results of operations of the Optoelectronics Business and the financial
position of TriQuint Mexico for such periods. The revenue of the
Optoelectronics Business reflected on Schedule 3.12(a) has been
recognized in accordance with GAAP and SAB 101 (as noted on Schedule 3.12(a)).


 


(b)                                 Except
as set forth in Schedule 3.12(b), since December 31, 2004, the
Optoelectronics Business has been conducted in the ordinary course consistent
with past practices and there has not been:


 


(1)                                  any event,
occurrence, development or state of circumstances or facts which, individually
or in the aggregate, has had or could reasonably be expected to have a Seller
Material Adverse Effect;


 


(2)                                  any creation or other
incurrence of any Encumbrance on any Purchased Asset;


 


(3)                                  any material damage,
destruction or other casualty loss (whether or not covered by insurance)
affecting the Optoelectronics Business or any Purchased Asset;


 


(4)                                  any transaction or
commitment made, or any contract or agreement entered into, by Seller relating
to the Optoelectronics Business or any Purchased Asset (including the
acquisition or disposition of any assets) or any relinquishment by Seller of
any contract or other right, in either case, material to the Optoelectronics
Business, other than transactions and commitments in the ordinary course of
business consistent with past practices and those contemplated by this
Agreement and the Collateral Agreements;


 


(5)                                  any change in any
method of accounting or accounting practice by Seller with respect to the
Optoelectronics Business;


 





















 


(6)                                  any (i) employment,
deferred compensation, severance, retirement or other similar agreement entered
into with any Business Employee (or any amendment to any such existing
agreement), or (ii) change in compensation or other benefits payable to
any Business Employee pursuant to any severance or retirement plans or policies
thereof;


 


(7)                                  any labor dispute,
other than routine individual grievances, or any activity or proceeding by a
labor union or representative thereof to organize the Business Employees, which
employees were not subject to a collective bargaining agreement, or any
lockouts, strikes, slowdowns, work stoppages or threats thereof by or with
respect to Business Employees; or


 


(8)                                  any shipments or
sales of quantities of products of the Optoelectronics Business to customers,
including distributors, other than in the ordinary course consistent with their
past requirements.


 


(c)                                  Seller
has not received or booked any prepaid revenues applicable to the
Optoelectronics Business applicable to performance due after the Closing Date.


 


(d)                                 Seller
has reserved $3,495,540 against the aggregate product warranty liability to be
assumed by Buyer hereunder.


 


3.13                        Intellectual
Property


 


(a)                                  TriQuint
or one of its Subsidiaries owns or has a valid right to grant the licenses to
all of the Proprietary Information that it is licensing to Buyer pursuant to
the Intellectual Property Agreement (collectively, the “Licensed Intellectual Property”).


 


(b)                                 In
connection with the operation of the Optoelectronics Business,


 


(1)                                  to Seller’s
knowledge, none of Seller or any of its Affiliates has infringed,
misappropriated or otherwise violated any intellectual property rights or other
proprietary rights of any third Person;


 


(2)                                  there is no suit, or
proceeding pending against, or, to Seller’s knowledge, threatened against or
written claim affecting, the Optoelectronics Business (A) based upon, or
challenging or seeking to deny or restrict, the rights of Seller or any of its
Affiliates in any of the Licensed Intellectual Property, (B) alleging that
the use of the Licensed Intellectual Property or any services provided,
processes used, or products manufactured, used, imported, offered for sale or
sold with respect to the Optoelectronics Business do or may conflict with,
misappropriate, infringe or otherwise violate any intellectual property rights
or other proprietary rights of any third party, or (C) alleging that
Seller or any of its Affiliates infringed, misappropriated, or otherwise
violated any intellectual property rights or other proprietary rights of any
third party; and


 


(3)                                  (A) the Licensed
Intellectual Property constitutes all the material intellectual property rights
or other material proprietary rights owned or licensed (to the extent Seller
has a right to license or sublicense Buyer thereunder without payment of a 


 





















 


fee) by Seller or one of its Affiliates that are used in the
Optoelectronics Business other than licenses to standard office personal
computer, productivity, and networking software; provided that Buyer’s sole
remedy for Seller’s failure to deliver any Licensed Intellectual Property is as
set forth in the Intellectual Property Agreement; (B) there exist no
restrictions on the disclosure, use, license or transfer of the Licensed
Intellectual Property (other than the restrictions imposed in the Intellectual
Property Agreement); and (C) the consummation of the transactions
contemplated by this Agreement will not alter, impair or extinguish any
Licensed Intellectual Property.


 


(c)                                  To
Seller’s knowledge, (i) none of the Licensed Intellectual Property has
been adjudged invalid or unenforceable in whole or part, and (ii) all such
Licensed Intellectual Property is valid and enforceable.


 


(d)                                 Seller
or an Affiliate of Seller has taken reasonable actions to maintain and protect
the Licensed Intellectual Property, including payment of applicable maintenance
fees and filing of applicable statements of use other than certain foreign
applications which Seller has dropped in the ordinary course of business.


 


(e)                                  Seller
or one of its Affiliates has taken commercially reasonable measures to maintain
the confidentiality of all confidential intellectual property rights or other
proprietary rights.  To Seller’s
knowledge, there has been no misappropriation of confidential intellectual
property that, individually or in the aggregate, has had or could reasonably be
expected to have a Seller Material Adverse Effect.  Seller and its Affiliates have taken
commercially reasonable efforts to ensure that confidentiality provisions are
in place for those Business Employees having access to confidential
intellectual property which is material to the Optoelectronics Business.  To Seller’s knowledge, there is no
infringement of the Licensed Intellectual Property by any third party.


 


3.14                        Product
Liability and Recalls


 


(a)                                  Each
of the products produced or sold by Seller in connection with the
Optoelectronics Business is, and at all times up to and including the sale
thereof has been, in compliance in all material respects with all applicable
Laws.  To Seller’s knowledge, there is no
design or manufacturing defect that has been established or is being
investigated with respect to any of such products.


 


(b)                                 There
has been no action, suit, claim, inquiry, proceeding or investigation in any
case by or before any court or Governmental Body pending or, to Seller’s
knowledge, threatened against or involving the Optoelectronics Business
relating to any product alleged to have been designed, manufactured or sold by
Seller in connection with the Optoelectronics Business and alleged to have been
defective or improperly designed or manufactured, nor to Seller’s knowledge is
there any pattern of product failure relating to any products designed,
manufactured or sold by the Optoelectronics Business.


 


(c)                                  There
has been no pending, or to Seller’s knowledge, threatened recall or
investigation of any product sold by Seller in connection with the
Optoelectronics Business.


 





















 


3.15                        Product
Warranty


 


Schedule 3.15 includes copies of the standard or individually
negotiated terms and conditions of sale for products of the Optoelectronics
Business (containing applicable guaranty, warranty and indemnity provisions).
The products manufactured by the Optoelectronics Business have been sold by
Seller in accordance with the provided terms and conditions of sale.  Seller has not varied the terms of any
product warranties from the terms provided on Schedule 3.15.


 


3.16                        Inventory


 


The Inventory is, and as of the Closing Date, will be, of quality and
quantity usable or saleable in the ordinary course of the Optoelectronics
Business, except in each case for obsolete items and items of below-standard
quality that have been written down to estimated net realizable value in
accordance with GAAP.


 


3.17                        Customers
and Suppliers


 


Schedule 3.17 contains, with respect to the Optoelectronics
Business, lists setting forth (i) the customers thereof, and (ii) the
suppliers thereto, ranked by dollar amount, over the 12-month period
ended December 31, 2004.  All
purchase and sale orders and other commitments for purchases and sales made by
Seller in connection with the Optoelectronics Business have been made in the
ordinary course of business in accordance with past practices, and no payments
have been made to any supplier or their representatives other than payments to
such suppliers or their representatives for the payment of the invoiced price
of supplies purchased or goods sold in the ordinary course of business.


 


3.18                        Restrictions
on the Business


 


Except for this Agreement, to the Seller’s knowledge, there is no
agreement, judgment, injunction, order or decree affecting (i) Seller’s
conduct of the Optoelectronics Business as currently conducted, or (ii) Buyer’s
ability to conduct the Optoelectronics Business after the Closing as currently
conducted by Seller.


 


3.19                        Brokers


 


No broker, investment banker, financial advisor or other Person is
entitled to any broker’s, finder’s, financial advisor’s or other similar fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Seller or any Affiliate of
Seller.


 


3.20                        Taxes


 


(a)                                  There
are no Encumbrances (other than Permitted Encumbrances) for Taxes upon any of
the Purchased Assets and no action, proceeding or, to the Seller’s knowledge,
investigation has been instituted against TriQuint or any Subsidiary that would
give rise to any such Encumbrances.





















 


(b)                                 TriQuint
and each Subsidiary have duly and timely filed all material Tax Returns that it
was required to file; all such Returns were correct and complete in all
material respects; and all Taxes owed and shown as due on any Return, have been
paid.


 


(c)                                  None
of the Purchased Assets is an asset or property that is or will be required to
be treated as (a) described in Section 168(f)(8) of the U.S.
Internal Revenue Code of 1954 and in effect immediately before the enactment of
the Tax Reform Act of 1986, or (b) tax exempt use property within the
meaning of Section 168(h)(1) of the Code.


 


(d)                                 Since
January 2, 2003, with respect to the Optoelectronics Business, no written
notice has been received by Seller or any Affiliate thereof from any
Governmental Body in any jurisdiction in which a Tax Return has not been filed
claiming that a Tax Return must be filed by Subsidiary or any Affiliate thereof
for that jurisdiction, except where the same has not had and could not
reasonably be expected to have a Seller Material Adverse Effect.


 


(e)                                  All
material Taxes that have been required to have been withheld with respect to
all employees, consultants or independent contractors engaged in the
Optoelectronics Business have been timely remitted to the applicable Tax
authority.


 


(f)                                    With
respect to the Optoelectronics Business, no material Tax Return of TriQuint or
any Subsidiary is currently under audit and no written notice of any such audit
or similar examination has been received; and there is no currently effective
agreement or other document extending, or having the effect of extending, the
period of assessment or collection of any material Taxes, nor has there been
any request in writing by Seller or its Affiliates for any such extension,
except where the same has not had and could not reasonably be expected to have
a Seller Material Adverse Effect.


 


3.21                        Accounts
Receivable


 


All Accounts Receivable that are reflected on the accounting records of
Seller as of the date hereof arose from sales actually made or services actually
performed by Seller in the ordinary course of business. Schedule 2.1(i) contains
a complete and accurate list of all Accounts Receivable as of the date hereof,
which list sets forth the aging of each such Account Receivable.


 


3.22                        Transactions
with Affiliates


 


Except as set forth on Schedule 3.22, there are no loans, leases,
contracts, agreements, understandings or commitments (written or oral) between (a) TriQuint,
on the one hand, and any Affiliate, stockholder, officer, director, employee,
agent, consultant or representative thereof, on the other, relating to the
Optoelectronics Business, or (b) TriQuint’s Optoelectronics Business
division, on the one hand, and any other division of TriQuint, on the other,
and there have been no such transactions from January 2, 2003 through the
date hereof.


 


3.23                        No Other
Representations or Warranties


 


Except for the representations and warranties contained in this Section 3
and in the Collateral Agreements, neither Seller, nor any Affiliate of Seller
makes any representations or warranties, and Seller hereby disclaims any other
representations or warranties, whether made by


 



















Seller, or any
Affiliate of Seller, or any of their respective officers, directors, employees,
agents or representatives, with respect to the execution and delivery of this
Agreement or any Collateral Agreement, the transactions contemplated hereby or
the Optoelectronics Business, notwithstanding the delivery or disclosure to
Buyer or its representatives of any documentation or other information with
respect to any one or more of the foregoing. 
Notwithstanding anything to the contrary herein, no representation or
warranty contained in this Section 3 is intended to, or does, cover or
otherwise pertain to any assets that are not included in the Purchased Assets
or any liabilities that are not included in the Assumed Liabilities.


 


4.                                      Representations
and Warranties of Buyer


 


Buyer hereby represents and warrants to TriQuint as follows, which
representations and warranties are true, correct, and complete as of the date
of this Agreement (unless made as of a specific date) and will be true,
correct, and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement throughout
this Section 4), except as set forth in the schedules hereto.


 


4.1                               Organization
and Qualification


 


Each of Buyer and any Buyer Designee is a corporation duly organized,
validly existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization and each of Buyer and any Buyer Designee has all
requisite legal power and authority to carry on its business as currently
conducted by it and to own or lease and operate its properties. Each of Buyer
and any Buyer Designee is duly qualified to do business and is in good standing
as a foreign corporation (in any jurisdiction that recognizes such concept) in
each jurisdiction where the ownership or operation of its assets or the conduct
of its business requires such qualification, except where the failure to be so
qualified or in good standing, individually or in the aggregate, has not had
and could not reasonably be expected to have a material adverse effect on Buyer’s
business taken as a whole or on Buyer’s or any Buyer Designee’s ability to consummate
the transactions under this Agreement and the Collateral Agreements.


 


4.2                               Authorization;
Binding Effect


 


(a)                                  Each
of Buyer and any Buyer Designee has all requisite corporate power and authority
to execute, deliver and perform this Agreement and the Collateral Agreements to
which it will be a party, as the case may be, and to effect the transactions
contemplated hereby and thereby and the execution, delivery and performance of
this Agreement and the Collateral Agreements by Buyer or a Buyer Designee has
been duly authorized by all requisite corporate action.


 


(b)                                 This
Agreement has been duly executed and delivered by Buyer and this Agreement is,
and the Collateral Agreements to which Buyer or a Buyer Designee will be a
party when duly executed and delivered by Buyer or such Buyer Designee will be,
valid and legally binding obligations of Buyer or such Buyer Designee
enforceable against Buyer or such Buyer Designee in accordance with their
respective terms, except to the extent that enforcement of the rights and
remedies created hereby and thereby may be affected by bankruptcy,
reorganization,


 





















 


moratorium,
insolvency and similar Laws of general application affecting the rights and
remedies of creditors and by general equity principles.


 


4.3                               Non-Contravention;
Consents


 


(a)                                  Assuming
that the consents specified in Section 4.3(b) below have been
obtained, the execution, delivery and performance of this Agreement and the
Collateral Agreements by Buyer and any Buyer Designee and the consummation of
the transactions contemplated hereby and thereby do not and will not: (i) result
in a breach or violation of any provision of Buyer’s or any Buyer Designee’s
charter or by-laws or similar organizational document (ii) violate or
result in a breach of or constitute an occurrence of default under any
provision of, result in the acceleration or cancellation of any obligation
under, or give rise to a right by any party to terminate or amend its
obligations under, any mortgage, deed of trust, conveyance to secure debt, note,
loan, indenture, lien, lease, agreement, instrument, order, judgment, decree or
other arrangement or commitment to which Buyer or any Buyer Designee is a party
or by which it or its assets or properties are bound, or (iii) violate any
applicable Law, order, judgment, injunction, decree, rule or regulation of
any court or any Governmental Body having jurisdiction over Buyer or any Buyer
Designee or any of their respective properties.


 


(b)                                 No
consent, approval, order or authorization of, or registration, declaration or
filing with, any Person is required to be obtained by Buyer or any Buyer
Designee in connection with the execution, delivery and performance of this
Agreement or the Collateral Agreements or for the consummation of the
transactions contemplated hereby or thereby.


 


4.4                               Brokers


 


No broker, investment banker, financial advisor or other Person is
entitled to any broker’s, finder’s, financial advisor’s or other similar fee or
commission in connection with the transactions contemplated by this Agreement
based on arrangements made by or on behalf of Buyer or an Affiliate of Buyer.


 


4.5                               No
Inducement or Reliance; Independent Assessment


 


(a)                                  With
respect to the Purchased Assets, the Optoelectronics Business and any other
rights or obligations to be transferred hereunder or under the Collateral
Agreements or pursuant hereto or thereto, Buyer has not been induced by and has
not relied upon any representations, warranties or statements, whether express
or implied, made by TriQuint, any Affiliate of TriQuint, or any agent,
employee, attorney or other representative of TriQuint or by any other Person
representing or purporting to represent TriQuint that are not expressly set
forth in this Agreement or in the Collateral Agreements (including the
Schedules and Exhibits hereto and thereto), whether or not any such
representations, warranties or statements were made in writing or orally, and
none of TriQuint, any Affiliate of TriQuint, or any agent, employee, attorney,
other representative of TriQuint or other Person shall have or be subject to
any liability to Buyer or any other Person resulting from the distribution to
Buyer, or Buyer’s use of, any such information, including any information,
documents or material made available in any “data rooms” or management
presentations or in any other form in expectation of the transactions
contemplated hereby.


 





















 


(b)                                 Buyer
acknowledges that it has made its own assessment of the present condition and
the future prospects of the Optoelectronics Business and is sufficiently
experienced to make an informed judgment with respect thereto.  Buyer further acknowledges that neither
Seller nor any Affiliate of Seller has made any warranty, express or implied,
as to the future prospects of the Optoelectronics Business or its profitability
for Buyer, or with respect to any forecasts, projections or Optoelectronics
Business plans prepared by or on behalf of Seller and delivered to Buyer in
connection with the Optoelectronics Business and the negotiation and the
execution of this Agreement.


 


4.6                               Sufficiency
of Funds


 


Buyer has delivered to TriQuint true and correct copies of non-binding
term sheets relating to proposed debt and equity financing transactions (the “Term Sheets”).  Assuming the consummation of the transactions
described in the Term Sheets, Buyer would have sufficient funds to pay the cash
portion of the Purchase Price and any expenses incurred by Buyer in connection
with the transactions contemplated by this Agreement or the Collateral
Agreements.  Buyer (i) has the
resources and capabilities (financial or otherwise) to perform its obligations
hereunder and under the Collateral Agreements, but for part of the cash portion
of the Purchase Price; and (ii) has not incurred any obligation,
commitment, restriction or liability of any kind, absolute or contingent,
present or future, which would impair or adversely affect such resources and
capabilities.  Buyer intends to
consummate the transactions described in the Term Sheets, on terms at least as
favorable to the lenders and investors as the terms described in the Term
Sheets.  To Buyer’s best knowledge, the
other parties to the transactions described in the Term Sheets are ready,
willing, and able to consummate such transactions.


 


4.7                               No
Other Representations or Warranties


 


Except for the representations and warranties contained in this Section 4
and in the Collateral Agreements, neither Buyer nor Affiliate of Buyer makes
any representations or warranties, and Buyer hereby disclaims any other
representations or warranties, whether made by Buyer, any Affiliate of Buyer,
or any of their officers, directors, employees, agents or representatives, with
respect to the execution and delivery of this Agreement or any Collateral
Agreement or the transactions contemplated hereby and thereby, notwithstanding
the delivery or disclosure to Seller or its representatives of any
documentation or other information with respect to any one or more of the
foregoing.


 


5.                                      Certain
Covenants


 


5.1                               Access
and Information


 


(a)                                  Seller
shall give, or cause its Affiliates to give, to Buyer and its Affiliates, and
their respective officers, employees, accountants, counsel and other
representatives (including financing sources) reasonable access during Seller’s
or the applicable Affiliate’s normal business hours throughout the period prior
to the Closing to all of Seller’s or the applicable Affiliate’s properties,
books, contracts, commitments, reports of examination and records relating to
the Optoelectronics Business, the Purchased Assets and the Assumed Liabilities
(but excluding those related primarily to the Excluded Assets and Excluded
Liabilities


 





















 


and subject to
any limitations that are reasonably required to preserve any applicable
attorney-client privilege or legal or contractual Third-Party confidentiality
obligation, in which case excerpts or summaries shall be provided). Seller
shall assist, and cause its Affiliates to assist, Buyer and its Affiliates,
representatives and financing sources in making such investigation and shall
cause its counsel, accountants, engineers, consultants and other non employee
representatives to be reasonably available to any of them for such purposes.


 


(b)                                 After
the Closing Date, Seller and Buyer shall provide, and shall cause their
respective Affiliates to provide, to each other and to their respective
officers, employees, accountants, counsel and other representatives, upon
request (subject to any limitations that are reasonably required to preserve
any applicable attorney-client privilege or legal or contractual Third-Party
confidentiality obligation), reasonable access for inspection and copying of
all Business Records, Governmental Permits, Licenses, Contracts and any other
information existing as of the Closing Date and relating to the Optoelectronics
Business, the Purchased Assets, the Assumed Liabilities or the Transferred
Employees and shall make their respective personnel reasonably available for
interviews, depositions and testimony in any legal matter concerning
transactions contemplated by this Agreement, the operations or activities
relating to the Optoelectronics Business, the Purchased Assets, the Assumed
Liabilities or the Transferred Employees and as otherwise may be necessary or
desirable to enable the party requesting such assistance to:  (i) comply with any reporting, filing or
other requirements imposed by any Governmental Body; (ii) assert or defend
any claims or allegations in any litigation or arbitration or in any
administrative or legal proceeding other than claims or allegations that one
party to this Agreement has asserted against the other; (iii) prepare any
and all historical or pro forma financial statements related to the
Optoelectronics Business for purposes of complying, or preparing to comply,
with any rules or regulations of the Securities and Exchange Commission;
or (iv)  subject to clause (ii) above, perform its obligations under
this Agreement.  The party requesting
such information or assistance shall reimburse the other party for all
reasonable and necessary out-of-pocket costs and expenses, if any, incurred by
such party in providing such information and in rendering such assistance.  The access to files, books and records
contemplated by this Section 5.1(b) shall be during normal business
hours and upon reasonable prior notice and shall be subject to such reasonable
limitations as the party having custody or control thereof may impose to
preserve the confidentiality of information contained therein.  Seller will make any access software that is
necessary for access to Business Records under this paragraph, available
without charge, and shall permit and assist to make electronic copies of any
Business Records available electronically, all subject to reasonable security
measures.


 


(c)                                  For
a period of three (3) years after the Closing Date, Buyer shall not
destroy or otherwise dispose of any Business Records, Licenses and Governmental
Permits that are included in the Purchased Assets.  Thereafter, for a period of four (4) additional
years, Buyer shall not destroy or otherwise dispose of any of such materials
without first giving TriQuint at least thirty (30) days’ prior written notice
of its intention to do so, during which period TriQuint may request that such
records be delivered to it at TriQuint’s expense.


 


(d)                                 After
the Closing Date and until September 30, 2005, Buyer shall permit Seller
reasonably to access, use and occupy the Leased Premises for the purpose of
storing, removing, and disposing of any Excluded Assets that may be located in
the Leased Premises on the Closing Date. 
To facilitate the disposition of the Excluded Assets, Buyer shall also
permit


 





















 


Seller to
invite into the Leased Premises representatives of potential buyers, auction
companies, and other Persons as reasonably requested by Seller.


 


5.2                               Conduct
of the Optoelectronics Business


 


From and after the date of this Agreement and through the Closing Date,
except as otherwise contemplated by this Agreement or in Schedule 5.2 or
as Buyer shall otherwise expressly consent to in writing, Seller, with respect
to the Optoelectronics Business:


 


(a)                                  will
carry on the Optoelectronics Business in the ordinary course consistent with
past practice and use commercially reasonable efforts to keep intact the
Optoelectronics Business, keep available the services of the Business Employees
and preserve the relationships of the Optoelectronics Business with customers,
suppliers, licensors, licensees, distributors and others that have a business
relationship with the Optoelectronics Business;


 


(b)                                 will
not permit, other than as may be required by Law, all or any of the Purchased
Assets to be sold, licensed, disposed of, or subjected to any Encumbrance,
other than sales of Inventory consistent with Section 5.2(c), and will
use, operate, maintain and repair the Purchased Assets in the ordinary course
consistent with past practice;


 


(c)                                  will
not sell Inventory outside of the ordinary course of business consistent with
past practice and will maintain Inventory sufficient to meet expected customer
requirements, consistent with past practice, including sufficient raw
materials, capacity and work in process in light of anticipated demand and
customary cycle times;


 


(d)                                 will
not acquire any asset that will be a Purchased Asset except in the ordinary
course of business consistent with past practice;


 


(e)                                  will
not enter into, terminate or materially extend or materially modify any
Material Contract except in the ordinary course of business consistent with
past practice;


 


(f)                                    will
not incur or assume any liabilities, obligations or indebtedness for borrowed
money, other than in the ordinary course of business consistent with past
practice or that will constitute Excluded Liabilities;


 


(g)                                 will
not other than in the ordinary course of business consistent with past practice
increase the salaries, wage rates, other compensation or fringe benefits of any
Business Employees;


 


(h)                                 shall,
in good faith and consistent with past practice, pay any due Accounts Payable;


 


(i)                                     shall
provide to Buyer, promptly upon receipt thereof, a copy of any notice from any
Governmental Body or other Third Party of the revocation, suspension,
violation, or limitation of the rights of Seller or an Affiliate thereof under
any material license or permit held by any of them relating to the
Optoelectronics Business, or any notice of material violation relating to any
real property owned, leased or used by Seller or an Affiliate thereof in
connection with the Optoelectronics Business, as well as give written notice to
Buyer promptly upon the


 





















 


commencement
of any action, investigation, arbitration or proceeding (including any
proceeding before any Governmental Body), or promptly upon obtaining knowledge
of any facts giving rise to a threat of any such action, investigation,
arbitration or proceeding that could, if adversely determined, reasonably be
expected to have a Seller Material Adverse Effect;


 


(j)                                     shall
promptly notify Buyer upon (1) becoming aware of any order or complaint
praying for an order restraining or enjoining the performance of this Agreement
or consummation of the transactions contemplated hereby, or (2) receiving
any notice from any Governmental Body of its intention (i) to institute an
investigation into, or institute a suit or proceeding to restrain or enjoin
performance of this Agreement or the consummation of the transactions contemplated
hereby, or (ii) to nullify or render ineffective this Agreement or the
transactions contemplated hereby if consummated;


 


(k)                                  shall
promptly notify Buyer in writing of, and furnish any information that Buyer may
reasonably request with respect to, any material claim or litigation asserted
or, to the knowledge of Seller, threatened by or against Seller or its
Affiliates relating to the Optoelectronics Business; any notice of default or
potential default received by Seller or its Affiliates under any Material
Contract, or any material adverse development with respect to any such claim or
litigation or default or potential default; any event or condition that would
cause any of the conditions to Buyer’s obligation to consummate the
transactions contemplated by this Agreement not to be fulfilled; and any other
occurrence of any kind that has had or could reasonably be expected to have a
Seller Material Adverse Effect;


 


(l)                                     shall,
no more than fifteen (15) days and not less than three (3) days prior to
the Closing Date, provide to Buyer a list identifying all material agreements
(written or oral) relating to the Optoelectronics Business and entered into by
TriQuint and/or the Subsidiaries subsequent to the date hereof, and if
requested by Buyer, correct and complete copies of such agreements (or summary
of any oral agreements);


 


(m)                               will
cause TriQuint Mexico’s accounts receivable from Seller and its Affiliates, and
TriQuint Mexico’s accounts payable to Seller and its Affiliates to be paid,
canceled or otherwise discharged  in full
prior to the Closing Date;


 


(n)                                 will
cause trade accounts receivable and other rights to payment from Seller and its
Affiliates as customers of the Optoelectronics Business, and trade accounts
payable to Seller and its Affiliates for materials and services used in the
Optoelectronics Business to be paid, canceled or otherwise discharged in full
prior to the Closing Date;


 


(o)                                 will
not do any other act which would cause any representation or warranty of Seller
in this Agreement to be or become untrue in any material respect or
intentionally omit to take any action necessary to prevent any such
representation or warranty from being untrue in any material respect; and


 


(p)                                 will
not enter into any agreement or commitment with respect to any of the
foregoing.


 





















 


5.3                               Allocation
of Consideration


 


TriQuint and Buyer recognize their mutual obligations pursuant to Section 1060
of the Code to timely file IRS Form 8594 (the “Asset Acquisition Statement”) with their respective federal
income tax returns.  Accordingly,
TriQuint and Buyer shall, no later than ninety (90) days after the Closing
Date, attempt in good faith to (i) enter into a Purchase Price allocation
agreement providing for the allocation of the Purchase Price among the
Purchased Assets consistent with the provisions of Section 1060 of the
Code and the Treasury Regulations thereunder (it being agreed that the portion
of the cash portion of the Purchase Price allocation in respect of the equity
participation rights of TriQuint Mexico, being purchased pursuant to the Equity
Purchase Agreement, shall be equal to the book value of such entity) and (ii) cooperate
in the preparation of the Asset Acquisition Statement in accordance with clause
(i) for timely filing with their respective federal income tax
returns.  If TriQuint and Buyer shall
have agreed on a Purchase Price allocation and an Asset Acquisition Statement,
then TriQuint and Buyer shall file the Asset Acquisition Statement in the form
so agreed and neither TriQuint nor Buyer shall take a Tax position which is
inconsistent with such Purchase Price allocation, unless compelled to do
otherwise by the IRS.


 


5.4                               Business
Employees


 


(a)                                  As
of the Closing Date, Buyer shall make offers of employment to those Business
Employees listed on Schedule 5.4(a). Schedule 5.4(a) shall be
prepared and agreed upon by Seller and Buyer prior to the Closing Date;
provided that Schedule 5.4(a) shall include at least 80% of the
Business Employees.  Seller shall provide
Buyer or a Buyer Designee with reasonable access to the Business Employees to
allow Buyer or a Buyer Designee to make offers of employment and will not take
any action, or cause any of the Subsidiaries to take any action, which would
impede, hinder, interfere or otherwise compete with Buyer’s or a Buyer Designee’s
effort to hire any Business Employees. Business Employees who accept Buyer’s or
a Buyer Designee’s offer of employment, as of the Closing Date, are referred to
as “Transferred Employees.”
Employment with Buyer or a Buyer Designee of Transferred Employees shall be
effective as of the day following the close of business on the Closing Date.


 


(b)                                 Buyer
shall maintain, or cause each Buyer Designee to maintain, for a period of at
least twelve (12) months after the Closing Date, severance benefits under terms
and conditions no less favorable than those set forth on Schedule 5.4(b) to
Transferred Employees whose employment is terminated involuntarily by Buyer on
or before the first anniversary of the Closing Date other than terminations in
circumstances that would not require payments of severance benefits under
Seller’s severance plan.  As of the
Closing Date, Buyer intends to keep in effect the terms and conditions of
employment of the Transferred Employees, as in effect on the Closing Date;
however, Buyer reserves the right to review such terms and conditions and make
any changes therein (including, cancellation or replacement thereof) as Buyer
deems necessary or appropriate in its discretion.


 


(c)                                  Buyer
or a Buyer Designee shall provide, or shall cause to be provided, to
Transferred Employees employee benefits on terms that are no less favorable
than employee benefits offered to similarly situated employees of Buyer or the
applicable Buyer Designee. Except as expressly set forth in this Section 5.4,
no assets of any Benefit Plan shall be transferred


 





















 


to Buyer or
any Affiliate of Buyer.  Each employee
benefit plan, program, policy and arrangement of Buyer or an Affiliate of
Buyer, including any Pension Plans, Welfare Plans, vacation plans and severance
plans, shall recognize to the extent permitted by Buyer’s or a Buyer Designee’s
plans and to the extent that it is administratively feasible to do so at no
additional cost or expense to Buyer or Buyer Designee for purposes of
determining eligibility to participate, vesting and for any schedule of
benefits based on service, all service with Seller, including service with
predecessor employers that was recognized by Seller and any prior unbridged
service with Seller, provided that such service shall not be recognized to the
extent such recognition would result in a duplication of benefits. Buyer or the
applicable Buyer Designee will continue to provide tuition assistance to those
Transferred Employees who are receiving such benefits as of the Closing Date
for the current academic session, in each case as set forth on Schedule 3.10(a).
Upon hire, Seller shall pay out to each Transferred Employee the amount of paid
time off and sabbatical credited to such Transferred Employee by Seller as of
the Closing Date.


 


(d)                                 Seller
intends that the transactions contemplated by this Agreement shall not
constitute a severance of employment of any Transferred Employee prior to or
upon the consummation of the transactions contemplated hereby and that such
employees will have continuous and uninterrupted employment immediately before
and immediately after the Closing Date. 
Buyer intends that each Transferred Employee shall be treated as a new
employee of Buyer or the applicable Buyer Designee, subject only to Buyer’s
commitments hereunder.


 


(e)                                  Buyer
agrees that its and its Affiliates’ health and welfare plans shall, to the
extent permitted by such plans, waive any pre-existing condition exclusion (to
the extent such exclusion was waived under applicable health and welfare plans
offered to the Transferred Employees by Seller) and any proof of
insurability.  Seller shall remain
responsible for any benefits payable under a Benefit Plan with respect to
claims incurred by Business Employees prior to or on the Closing Date.


 


(f)                                    The
parties agree to cooperate in good faith to determine whether any notification
may be required under the Worker Adjustment and Retraining Notification Act
(the “WARN Act”) as a result of
the transactions contemplated by this Agreement.  Seller will be responsible for providing any
notification that may be required under the WARN Act with respect to Business
Employees terminated on or before the Closing Date. Buyer will be responsible
for providing any notification that may be required under the WARN Act with
respect to any Transferred Employees terminated after the Closing Date.


 


(g)                                 Nothing
in this Agreement shall require Buyer or a Buyer Designee to employ any
Business Employees, or to employ any Transferred Employee on anything other
than an at-will basis, terminable at any time with or without cause.  Neither Buyer, Buyer’s Designee, nor Seller
shall make any representation inconsistent with the terms of this Agreement to
any Business Employees regarding Buyer’s or Buyer Designee’s intentions or
plans to hire or not hire any Business Employees or to assume or honor or to
not assume or honor any collective bargaining agreement, or regarding Seller’s
intention to continue to employ or not employ any Business Employees after the
Closing Date.  Buyer, Buyer’s Designee,
and Seller shall instruct their respective management and supervisory employees
involved in negotiating this transaction to refrain from any representations
that are inconsistent with the terms of this Agreement.


 





















 


5.5                               Collateral
Agreements; Leased Equipment


 


(a)                                  On
or before the Closing Date, subject to satisfaction of the conditions to
Closing set forth in Article 8, Buyer or a Buyer Designee shall execute
and deliver to TriQuint, and TriQuint or the applicable Subsidiary shall execute
and deliver to Buyer or a Buyer Designee the Collateral Agreements.


 


(b)                                 Prior
to the Closing Date, Seller and Buyer shall negotiate in good faith the terms
of the Stock Purchase Agreement and the Breingsville Lease.


 


(c)                                  Prior
to the Closing Date, Seller shall provide Buyer with the costs and other terms
applicable to the Leased Equipment and Buyer shall decide whether such Leased
Equipment will (i) transfer to Buyer as of the Closing Date by Buyer
assuming the leases for such equipment in which case such lease agreement shall
be deemed a Contract hereunder, (ii) be acquired by Buyer as of the
Closing Date by Buyer paying for the costs of purchasing such equipment to the
applicable Third Party pursuant to the equipment rentals or leases (the “Purchased Leased Equipment”), or (iii) remain
the property of Seller as of the Closing Date (the “Excluded Leased Equipment”). 
The Purchased Leased Equipment is set forth on Schedule 5.5(c)(ii).  The Excluded Leased Equipment is set forth on
Schedule 5.5(c)(iii).


 


5.6                               Commercially
Reasonable Efforts


 


Upon the terms and subject to the conditions set forth in this
Agreement (and specifically without limiting the obligations of Seller pursuant
to Section 5.11), each of the parties agrees to use its commercially reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.  Without limiting the
generality of the foregoing, the parties shall use commercially reasonable
efforts to: (i) take all acts necessary to cause the conditions to Closing
to be satisfied as promptly as practicable (including, without limitation,
Buyer using commercially reasonable efforts to satisfy the condition set forth
in Section 8.1(e) by effecting the consummation of the transactions
described in the Term Sheets); (ii) obtain all necessary actions or
nonactions, waivers, consents and approvals from Governmental Bodies, make of
all necessary registrations and filings (including filings with Governmental
Bodies, if any) and take of all steps as may be necessary to obtain an approval
or waiver from, or to avoid an action or proceeding by any Governmental Body;
and (iii) obtain of all necessary consents, approvals or waivers from
Third Parties required to be obtained by each such party.


 


5.7                               Contacts
with Suppliers and Customers


 


Prior to the Closing, without the prior consent of Seller, Buyer shall
not contact any suppliers to, or customers of, the Optoelectronics Business in
connection with or pertaining to any subject matter of this Agreement or the
Collateral Agreements. In contemplation of the Closing, Seller and Buyer agree
to cooperate in contacting certain suppliers to, and customers of, the
Optoelectronics Business in connection with and pertaining to the subject
matter of this Agreement and the Collateral Agreements.


 





















 


5.8                               Use
of Seller’s Name


 


(a)                                  Buyer
and Seller agree as follows:


 


(1)                                  Nothing in this
Agreement grants any license or rights to Buyer or its Affiliates to use any
names or trademarks of Agere Systems, Inc.


 


(2)                                  Nothing in this
Agreement grants any license or rights to Buyer or its Affiliates to use “TriQuint,”
“TriQuint Semiconductor,” “TriQuint Optoelectronics,” or any similar mark, or
any other trademark, design, or logo previously or currently used by Seller of
any of Seller’s Affiliates not otherwise purchased by Buyer hereunder of under
the Collateral Agreements.


 


(3)                                  Notwithstanding Section 5.8(a)(2),
Buyer shall have the right to sell existing inventory and to use existing
packaging, labeling, containers, supplies, advertising materials, technical
data sheets and any similar materials bearing Seller’s names or any other
trademark, design or logo previously or currently used by Seller or any of its
Affiliates until the earlier of (i) twelve months after the Closing Date
or (ii) the depletion of such existing inventory and materials.  If such existing inventory or materials are
depleted within twelve months after the Closing Date, and if Buyer requires new
inventory or materials with Seller’s name, trademark, design or logo within
that time in order to fulfill customer orders, then with Seller’s consent
(which will not be unreasonably withheld) Buyer may continue the use of Seller’s
name, trademark, design or logo on new inventory or materials as necessary to
fulfill such customer orders.  In no
event may Buyer use Seller’s names or any other trademark, design or logo
previously or currently used by Seller or any of its Affiliates after the first
anniversary of the Closing Date.


 


(b)                                 In
no event shall Buyer or any Affiliate of Buyer advertise or hold itself out as
Seller or an Affiliate of Seller after the Closing Date.


 


5.9                               Deposit;
No Negotiation or Solicitation


 


(a)                                  The
parties acknowledge that Buyer has deposited $500,000 with Ater Wynne LLP,
counsel for Seller (“Deposit Holder”),
pursuant to the terms of a deposit agreement (“Deposit Agreement”) among Buyer, TriQuint, and Deposit Holder,
substantially in the form attached hereto as Exhibit F.  The Deposit Agreement provides, among other
things, that (i) the $500,000 deposit is non-refundable and will be paid
to Seller at the Closing (as part of the cash portion of the Purchase Price) or
upon the termination of this Agreement for any reason other than by Buyer as
described in Section 11.1(b) (except due to non-satisfaction of the
condition set forth in Section 8.1(e)), and (ii) if this Agreement is
terminated by Buyer pursuant to Section 11.1(b) (except due to
non-satisfaction of the condition set forth in Section 8.1(e)), the
deposit will be paid without interest to Buyer. 
In the event of any inconsistency between the terms of the Deposit
Agreement and the provisions of this Section 5.9, the Deposit Agreement
will control.


 


(b)                                 Prior
to the Closing Date, Seller and its Affiliates will not (and Seller will cause
each of its employees, officers, directors, representatives, and agents not to)
directly or indirectly (a) solicit, initiate, entertain or encourage the
submission of any proposal, offer or any


 





















 


discussions
that might reasonably be expected to lead to or result in any proposal or offer
from any Person relating to the direct or indirect acquisition of the
Optoelectronics Business or any portion of the Purchased Assets (other than
purchases of goods or services from the Optoelectronics Business in the
ordinary course of business consistent with past practice), or (b) participate
in any discussions or negotiations regarding the Optoelectronics Business,
furnish any information with respect thereto, or assist or participate in, or
facilitate in any other manner any effort or attempt by any Person to do or
seek any of the foregoing, except as otherwise agreed herein.  Seller will notify Buyer if any Person makes
any proposal, offer, inquiry or contact with respect to any of the foregoing
within two Business Days after receipt of any such offer or proposal.  Seller will notify Buyer promptly if any
Person makes any proposal, offer, inquiry, or contact with respect to any of
the foregoing.


 


5.10                        Non-Competition


 


(a)                                  Seller
agrees that, as part of the consideration for the payment of the Purchase
Price, for a period of three (3) years immediately following the Closing
Date, neither Seller nor any of its Affiliates will directly or indirectly,


 


(1)                                  as a principal,
stockholder or otherwise, operate, perform or have any ownership interest in
any business that develops, manufactures, sells, installs or distributes
products in competition with the Optoelectronics Business, except that Seller
may (i) purchase or otherwise acquire by merger, purchase of assets,
stock, controlling interest or otherwise any Person or business or engage in
any similar merger and acquisition activity with any Person the primary
business (defined below) of which is not in competition with the
Optoelectronics Business, or (ii) use or license its Proprietary
Information to the extent permitted by the Intellectual Property
Agreement.  For the purposes of this Section 5.10(a),
ownership of securities of a company whose securities are publicly traded under
a recognized securities exchange not in excess of 10% of any class of such
securities shall not be considered to be competition with the Optoelectronics
Business, and a Person shall not be considered to be in the “primary business”
of competing with the Optoelectronics Business if such Person derives less than
20% of its revenues from products that compete with the Optoelectronics
Business, or


 


(2)                                  solicit for
employment or employ anyone who is then, or had within the preceding twelve
(12) months been, an employee of Buyer or a Buyer Designee.


 


(b)                                 Seller
acknowledges that the restrictions set forth in Section 5.10(a) constitute
a material inducement to Buyer’s entering into and performing this Agreement.
Seller further acknowledges, stipulates and agrees that a breach of such
obligation could result in irreparable harm and continuing damage to Buyer for
which there may be no adequate remedy at law and further agrees that in the
event of any breach of said obligation, Buyer may be entitled to injunctive
relief and to such other relief as is proper under the circumstances.


 


(c)                                  If
any provision contained in this Section shall for any reason be held
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Section 5.10,
but this Section 5.10 shall be construed


 





















 


as if such
invalid, illegal or unenforceable provision had never been contained
herein.  It is the intention of the
parties that if any of the restrictions or covenants contained herein is held
to cover a geographic area or to be for a length of time which is not permitted
by applicable Law, or in any way construed to be too broad or to any extent
invalid, such provision shall not be construed to be null, void and of no
effect, but to the extent such provision would be valid or enforceable under
applicable Law, a court of competent jurisdiction shall construe and interpret
or reform this Section 5.10 to provide for a covenant having the maximum
enforceable geographic area, time period and other provisions (not greater than
those contained herein) as shall be valid and enforceable under such applicable
Law.


 


5.11                        Consents


 


Seller shall, and shall cause its Affiliates to, use their respective
commercially reasonable efforts to obtain, or cause to be obtained, all of the
Required Consents.  Buyer shall
reasonably cooperate (at no cost or expense to Buyer) in Seller’s efforts in
connection therewith.


 


6.                                      Confidential
Nature of Information


 


6.1                               Confidentiality
Agreement


 


Buyer agrees that the Confidentiality Agreement shall apply to (a) all
documents, materials and other information that it shall have obtained
regarding Seller or its Affiliates during the course of the negotiations
leading to the consummation of the transactions contemplated hereby (whether
obtained before or after the date of this Agreement), any investigations made
in connection therewith and the preparation of this Agreement and related
documents and (b) all analyses, reports, compilations, evaluations and
other materials prepared by Buyer or its counsel, accountants or financial
advisors that contain or otherwise reflect or are based upon, in whole or in
part, any of the provided information; provided, however, that subject to Section 6.2(a),
the Confidentiality Agreement shall terminate as of the Closing and shall be of
no further force and effect thereafter with respect to information of Seller or
its Affiliates the ownership of which is transferred to Buyer or a Buyer
Designee.


 


6.2                               Seller’s
Proprietary Information


 


(a)                                  Except
as provided in Section 6.2(b) and except for such Proprietary
Information the ownership of which is transferred to Buyer or a Buyer Designee
as part of the Purchased Assets, after the Closing and for a period of five (5) years
following the Closing Date, Buyer agrees that it will keep confidential all of
Seller’s and its Affiliates’ Proprietary Information that is received from, or
made available by, Seller in the course of the transactions contemplated
hereby, including, for purposes of this Section 6.2, information about the
Optoelectronics Business’s business plans and strategies, marketing ideas and
concepts, especially with respect to unannounced products and services, present
and future product plans, pricing, volume estimates, financial data, product
enhancement information, business plans, marketing plans, sales strategies,
customer information (including customers’ applications and environments),
market testing information, development plans, specifications, customer
requirements, configurations, designs, plans, drawings, apparatus, sketches,
software, hardware,


 





















 


data,
prototypes, connecting requirements or other technical and business
information. This clause shall not restrict the use of any licensed assets
within the scope of the license.


 


(b)                                 Notwithstanding
the foregoing, such Proprietary Information shall not be deemed confidential
and Buyer shall have no obligation with respect to any such Proprietary
Information that:


 


(1)                                  at the time of
disclosure was already known to Buyer other than as a result of this
transaction, free of restriction as evidenced by documentation in Buyer’s
possession;


 


(2)                                  is or becomes
publicly known through publication, inspection of a product, or otherwise, and
through no negligence or other wrongful act of Buyer;


 


(3)                                  is received by Buyer
from a Third Party without similar restriction and without breach of any
agreement;


 


(4)                                  to the extent it is
independently developed by Buyer; or


 


(5)                                  is, subject to Section 6.2(c),
required to be disclosed under applicable Law or judicial process.


 


(c)                                  If
Buyer (or any of its Affiliates) is requested or required (by oral question,
interrogatory, request for information or documents, subpoena, civil
investigative demand or similar process) to disclose any Proprietary
Information, Buyer will promptly notify Seller of such request or requirement
and will cooperate with Seller such that Seller may seek an appropriate
protective order or other appropriate remedy. 
If, in the absence of a protective order or the receipt of a waiver
hereunder, Buyer (or any of its Affiliates) is in the opinion of Buyer’s
counsel compelled to disclose the Proprietary Information or else stand liable
for contempt or suffer other censure or penalty, Buyer (or its Affiliate) may
disclose only so much of the Proprietary Information to the party compelling
disclosure as is required by Law.  Buyer
will exercise its (and will cause its Affiliates to exercise their) reasonable
commercial efforts to obtain a protective order or other reliable assurance
that confidential treatment will be accorded to such Proprietary Information.


 


6.3                               Buyer’s
Proprietary Information


 


(a)                                  Except
as provided in Section 6.3(b), after the Closing Date and for a period of
five (5) years thereafter, Seller agrees that it will keep confidential
all of Seller’s and its Affiliates’ Proprietary Information the ownership of
which or exclusive use of which is transferred to Buyer as part of the
Purchased Assets, including, for purposes of this Section 6.3, information
about the Optoelectronics Business’s business plans and strategies, marketing
ideas and concepts, especially with respect to unannounced products and
services, present and future product plans, pricing, volume estimates,
financial data, product enhancement information, business plans, marketing
plans, sales strategies, customer information (including customers’ applications
and environments), market testing information, development plans,
specifications, customer requirements, configurations, designs, plans,
drawings, apparatus, sketches, software, hardware, data, prototypes, connecting
requirements or other technical and business information.


 





















 


(b)                                 Notwithstanding
the foregoing, such Proprietary Information regarding the Optoelectronics
Business shall not be deemed confidential and Seller shall have no obligation
with respect to any such Proprietary Information that:


 


(1)                                  is or becomes
publicly known through publication, inspection of a product, or otherwise, and
through no negligence or other wrongful act of Seller;


 


(2)                                  is received by Seller
from a Third Party without similar restriction and without breach of any agreement;
or


 


(3)                                  is, subject to Section 6.3(c),
required to be disclosed under applicable Law or judicial process.


 


(c)                                  If
Seller (or any of its Affiliates) is requested or required (by oral question,
interrogatory, request for information or documents, subpoena, civil
investigative demand or similar process) to disclose any Proprietary
Information regarding the Optoelectronics Business, Seller will promptly notify
Buyer of such request or requirement and will cooperate with Buyer such that
Buyer may seek an appropriate protective order or other appropriate
remedy.  If, in the absence of a
protective order or the receipt of a waiver hereunder, Seller (or any of its
Affiliates) is in the opinion of Seller’s counsel compelled to disclose the
Proprietary Information or else stand liable for contempt or suffer other
censure or penalty, Seller (or its Affiliate) may disclose only so much of the
Proprietary Information to the party compelling disclosure as is required by
Law.  Seller will exercise its (and will
cause its Affiliates to exercise their) reasonable commercial efforts to obtain
a protective order or other reliable assurance that confidential treatment will
be accorded to such Proprietary Information.


 


6.4                               Confidential
Nature of Agreements


 


Both parties agree that the terms and conditions of this Agreement, the
Collateral Agreements and all Schedules, attachments and amendments hereto and
thereto shall be considered Proprietary Information protected under this Article 6,
except to the extent (a) that disclosure thereof is required under
accounting, stock exchange or federal securities or labor relations Laws
disclosure obligations, or (b) that disclosure thereof is reasonably
required in connection with Buyer’s efforts to consummate the transactions
described in the Term Sheets, provided that any disclosure described in clause (b) may
be made only to parties that have agreed to keep the information confidential
and have agreed not to use the information for any purpose other than to
investigate and consummate the transactions described in the Term Sheets.


 


6.5                               Other
Confidentiality Agreements


 


Notwithstanding anything in this Article 6 to the contrary, in the
event that any such Proprietary Information is also subject to a limitation on
disclosure or use contained in another written agreement between Buyer and
Seller or either of their respective Affiliates that is more restrictive than
the limitation contained in this Article 6, then the limitation in such
agreement shall supersede this Article 6.


 





















 


7.                                      Closing


 


At the Closing, the following transactions shall take place:


 


7.1                               Deliveries
by Seller


 


On the Closing Date, TriQuint shall, or shall cause a Subsidiary to,
execute and deliver to Buyer or a Buyer Designee the following:


 


(a)                                  the
Collateral Agreements;


 


(b)                                 all
consents, waivers or approvals, including, without limitation, the Required
Consents, theretofore required to be obtained by Seller with respect to the
sale of the Purchased Assets, or assignment of the Contracts, or the
consummation of the transactions contemplated by this Agreement or the
Collateral Agreements;


 


(c)                                  a
certificate of an appropriate officer of Seller, dated the Closing Date,
certifying the fulfillment of the conditions set forth in Sections 8.1(a) and
(b);


 


(d)                                 an
opinion of counsel to Seller, in the form attached hereto as Exhibit G;


 


(e)                                  all
such other bills of sale, assignments and other instruments of assignment,
transfer or conveyance as Buyer or a Buyer Designee may reasonably request or
as may be otherwise necessary to evidence and effect the sale, transfer,
assignment, conveyance and delivery of the Purchased Assets to Buyer or a Buyer
Designee or and to put Buyer or a Buyer Designee in actual possession or
control of the Purchased Assets; and


 


(f)                                    an
affidavit by TriQuint and each Subsidiary, dated as of the Closing Date and in
a form acceptable to Buyer, stating under penalty of perjury, the transferor’s
name, taxpayer identification number, address and that the transferor is not a
foreign person, pursuant to Section 1445(b)(2) of the Code and the
Treasury Regulations thereunder.


 


7.2                               Deliveries
by Buyer or a Buyer Designee


 


On the Closing Date, Buyer shall, or shall cause a Buyer Designee to,
execute and deliver to TriQuint or a Subsidiary the following:


 


(a)                                  the
Purchase Price;


 


(b)                                 the
Collateral Agreements;


 


(c)                                  certified
copies of the resolutions of the Board of Directors of Buyer authorizing and
approving this Agreement and the Collateral Agreements and the consummation of
the transactions contemplated hereby and thereby;


 


(d)                                 incumbency
certificates relating to each person executing (as a corporate officer or
otherwise on behalf of another Person) any document executed by Buyer or a
Buyer Designee and delivered to Seller pursuant to the terms of this Agreement
and/or the Collateral


 





















 


Agreements;


 


(e)                                  a
certificate of an appropriate officer of Buyer, dated the Closing Date,
certifying as to accuracy of Buyer’s representations and warranties as of the
date hereof and the Closing Date;


 


(f)                                    a
certificate of an appropriate officer of Buyer, dated the Closing Date,
certifying the fulfillment of the conditions set forth in Sections 8.2(a) and
(b); and


 


(g)                                 all
such other documents and instruments as Seller may reasonably request or as may
be otherwise necessary or desirable to evidence and effect the assumption by
Buyer or a Buyer Designee of the Assumed Liabilities.


 


7.3                               Closing
Date


 


Subject to the satisfaction or waiver of the conditions set forth in Article 8
hereof, the Closing shall take place at the offices of Seller in Breinigsville,
Pennsylvania, at 10:00 a.m. local time on April 29, 2005, or at such
other place or time or on such other date as Seller and Buyer may agree upon in
writing (such date and time being referred to herein as the “Closing Date”).


 


7.4                               Contemporaneous
Effectiveness


 


All acts and deliveries prescribed by this Article 7, with respect
to the Closing, regardless of chronological sequence, will be deemed to occur
contemporaneously and simultaneously on the occurrence of the last act or
delivery, and none of such acts or deliveries will be effective until the last
of the same has occurred.


 


8.                                      Conditions
Precedent to Closing


 


8.1                               Conditions
Precedent to Buyer’s Obligations


 


The obligations of Buyer to effect the Closing of the transactions
contemplated hereby are subject to the fulfillment, prior to or at the Closing,
of each of the following conditions, any of which may be waived in writing by
Buyer:


 


(a)                                  Representations
and Warranties of Seller True and Correct at Closing.  The representations and warranties of Seller
contained in this Agreement or in any Schedule, certificate or document
delivered pursuant to the provisions hereof or in connection with the
transactions contemplated hereby shall be true and correct in all material
respects (but without regard to any qualifications therein as to materiality or
material adverse effect) at and as of the Closing Date, as though such
representations and warranties were made at and as of the Closing Date, except (i) as
affected by the transactions contemplated hereby and (ii) to the extent
that such representations and warranties are made as of a specified date, in
which case such representations and warranties shall be true and correct as of
the specified date.


 


(b)                                 Performance
by Seller. TriQuint and/or the applicable Subsidiary shall have delivered
all of the documents required under Section 7.1 and shall have otherwise
performed in all material respects all obligations and agreements and complied
in all material


 





















 


respects with
all covenants required by this Agreement to be performed or complied with by it
prior to or at the Closing, including executing the Collateral Agreements.


 


(c)                                  No
Seller Material Adverse Effect. 
There shall not have occurred a Seller Material Adverse Effect from the
date hereof to the Closing Date.


 


(d)                                 Required
Consents.  Seller shall have obtained
all Required Consents.


 


(e)                                  Financing.   Buyer shall have arranged for equity and/or
debt financing, on terms and conditions satisfactory to it, for the payment of
the cash portion of the Purchase Price and any expenses incurred by Buyer in
connection with the transactions contemplated by this Agreement or the
Collateral Agreements.


 


(f)                                    Non-assignable
Assets.  The Non-assignable Assets
shall not collectively represent a material portion of the Purchased Assets.


 


(g)                                 No
Injunctive Proceedings.  No action,
suit, or proceeding shall be pending or threatened before any Governmental Body
wherein an order would (a) prevent consummation of any of the transactions
contemplated by this Agreement, (b) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation, (c) affect
adversely the right of Buyer or Seller to consummate the transactions
contemplated by this Agreement, or (d) affect adversely the right of Seller
or Buyer to own its assets and to operate its business (and no such order shall
be in effect).


 


(h)                                 Transferred
Employees.  Eighty percent (80%) of
the Business Employees listed on Schedule 5.4(a) to whom Buyer has
made an offer of employment have accepted employment with Buyer.


 


(i)                                     Stock
Purchase Agreement and Breinigsville Lease. 
The parties shall have negotiated the (i)                                      Stock Purchase
Agreement and Breinigsville Lease on terms reasonably acceptable to each, and
shall have executed and delivered the same.


 


8.2                               Conditions
Precedent to Seller’s Obligations


 


The obligations of Seller to effect the Closing of the transactions
contemplated hereby are subject to the fulfillment, prior to or at the Closing,
of each of the following conditions, any of which may be waived in writing by
TriQuint:


 


(a)                                  Representations
and Warranties of Buyer True and Correct at Closing.  The representations and warranties of Buyer
contained in this Agreement or in any Schedule, certificate or document
delivered pursuant to the provisions hereof or in connection with the
transactions contemplated hereby shall be true and correct in all material
respects (but without regard to any qualifications therein as to materiality or
material adverse effect) at and as of the Closing Date as though such
representations and warranties were made at and as of the Closing Date, except
to the extent that such representations and warranties are made as of a
specified date, in which case such representations and warranties shall be true
and correct  as of the specified date;
provided, that this condition shall be deemed satisfied unless the failure of
any such representations and warranties to be true and correct, individually or
in the aggregate, at and


 





















 


as of the
Closing Date has not had and could not reasonably be expected to have a
material adverse effect on Buyer’s business taken as a whole or on Buyer’s or
any Buyer Designee’s ability to consummate the transactions under this
Agreement or any of the Collateral Agreements.


 


(b)                                 Performance
by Buyer.  Buyer and/or the
applicable Buyer Designee shall have delivered all of the documents required
under Section 7.2 and shall have otherwise performed in all material
respects all obligations and agreements and complied in all material respects
with all covenants required by this Agreement to be performed or complied with
by it prior to or at the Closing, including executing the Collateral
Agreements.


 


(c)                                  Stock
Purchase Agreement and Breinigsville Lease. 
The parties shall have negotiated the (i)                                      Stock Purchase
Agreement and Breinigsville Lease on terms reasonably acceptable to each, and
shall have executed and delivered the same.


 


(d)                                 Buyer
Financing.   The terms and conditions
of the Stock Purchase Agreement shall be at least as favorable to investors as
the equity financing transaction described in the Term Sheets.  Buyer shall have consummated the transactions
contemplated by the Stock Purchase Agreement.


 


9.                                      Status
of Agreements


 


The rights and obligations of Buyer and Seller under this Agreement
shall be subject to the following terms and conditions:


 


9.1                               Survival
of Representations and Warranties


 


The representations and warranties of Buyer and Seller contained in
this Agreement shall survive the Closing solely for purposes of this Article 9
and such representations and warranties shall terminate at the close of
business on the date that is 12 months after the Closing Date; provided,
however, that the representations and warranties in Section 3.5(a) (with
respect to title matters), Section 3.7(c) (with respect to Excluded
Liabilities regarding environmental matters), Section 3.10 (with respect
to Excluded Liabilities regarding employee matters), and Section 3.20
(with respect to Excluded Liabilities regarding tax matters) shall survive
indefinitely.  Neither Seller nor Buyer
shall have any liability whatsoever with respect to any such representations or
warranties after the applicable expiration date except with respect to claims
properly made prior to such expiration in accordance with Section 9.3(c).


 


9.2                               General
Agreement to Indemnify


 


(a)                                  Seller
and Buyer shall indemnify, defend and hold harmless the other party hereto, and
Affiliates thereof, and any director, officer, employee or agent of such other
party or Affiliates thereof (each an “Indemnified
Party”) from and against any and all claims, actions, suits,
proceedings, liabilities, obligations, Taxes, losses, and damages, amounts paid
in settlement, interest, costs and expenses (including reasonable attorney’s
fees, court costs and other out-of-pocket expenses incurred in investigating,
preparing or defending the foregoing) (collectively, “Losses”) incurred or suffered by any
Indemnified Party to the extent that the Losses arise by reason of, or result
from (i) subject to Section 9.1, any breach or any failure of


 





















 


any
representation or warranty of such party contained in this Agreement to have
been true when made and at and as of the Closing Date, (ii) the breach by
such party of any covenant or agreement of such party contained in this
Agreement to the extent not waived by the other party, or (iii) the fraud
or willful misconduct of such party .


 


(b)                                 In
addition, Seller agrees to indemnify and hold harmless Buyer and any Buyer
Indemnified Party from and against any Losses incurred by Buyer or any Buyer
Indemnified Party arising out of, resulting from, or relating to: (i) the
Excluded Liabilities and/or the Excluded Assets; (ii) Buyer’s or a Buyer
Designee’s waiver of any applicable Bulk Sales Laws; and (iii) Business
Employees that do not constitute Transferred Employees.


 


(c)                                  In
addition, Buyer agrees to indemnify and hold harmless Seller and any Seller
Indemnified Party from and against any Losses incurred by Seller or any Seller
Indemnified Party arising out of, resulting from, or relating to any failure of
Buyer to pay, perform or discharge when due any of the Assumed Liabilities.


 


(d)                                 Amounts
payable in respect of the parties’ indemnification obligations shall be treated
as an adjustment to the Purchase Price. 
Buyer and Seller agree to cooperate in the preparation of a supplemental
Asset Acquisition Statement as required by Section 5.3(b) and
Treasury Reg. §1.1060-1(e) as a result of any adjustment to the
Purchase Price pursuant to the preceding sentence.  Whether or not the Indemnifying Party (as
defined below) chooses to defend or prosecute any Third-Party Claim (as defined
below), both parties hereto shall cooperate in the defense or prosecution
thereof and shall furnish such records, information and testimony, and attend
such conferences, discovery proceedings, hearings, trials and appeals, as may
be reasonably requested in connection therewith or as provided in Section 5.1.


 


(e)                                  The
Indemnifying Party’s liability for all claims made under Section 9.2(a) through
9.2(c) shall be subject to the following limitations:  (i) the Indemnifying Party shall have no
liability for such claims until the aggregate amount of the Losses incurred
shall exceed $200,000, in which case the Indemnifying Party shall be liable for
all Losses, and (ii) the Indemnifying Party’s aggregate liability for all
such claims shall not exceed $3,000,000.


 


(f)                                    The
indemnification provided in this Article 9 shall be the sole and exclusive
remedy after the Closing Date for damages available to the parties to this
Agreement for breach of any of the terms, conditions, representations or
warranties contained herein or any right, claim or action arising from the
transactions contemplated by this Agreement; provided, however, this exclusive
remedy for damages does not preclude a party from bringing an action for (i) specific
performance or other equitable remedy to require a party to perform its
obligations under this Agreement or any Collateral Agreement or (ii) fraud,
willful misconduct, or intentional misrepresentation.


 


(g)                                 Notwithstanding
anything contained in this Agreement to the contrary, no party shall be liable
to the other party for any indirect, special, punitive, exemplary or
consequential loss or damage (including any loss of revenue or profit) arising
out of this Agreement, provided, however, that the foregoing shall not be
construed to preclude recovery by the Indemnified Party in respect of Losses
directly incurred from Third Party Claims.


 





















 


9.3                               General
Procedures for Indemnification


 


(a)                                  The
Indemnified Party seeking indemnification under this Agreement shall promptly
notify the party against whom indemnification is sought (the “Indemnifying Party”) of the assertion of
any claim, or the commencement of any action, suit or proceeding by any Third
Party, in respect of which indemnity may be sought hereunder and shall give the
Indemnifying Party such information with respect thereto as the Indemnifying
Party may reasonably request, but failure to give such notice shall not relieve
the Indemnifying Party of any liability hereunder (unless and to the extent
that the Indemnifying Party has suffered material prejudice by such
failure).  If the Indemnifying Party
acknowledges in writing its obligation to indemnify the Indemnified Party, then
the Indemnifying Party shall have the right, but not the obligation,
exercisable by written notice to the Indemnified Party within 20 days of
receipt of notice from the Indemnified Party of the commencement of or
assertion of any claim, action, suit or proceeding by a Third Party in respect
of which indemnity may be sought hereunder (a “Third-Party Claim”), to assume the defense and control the
settlement of such Third-Party Claim that (i) involves (and continues to
involve) solely money damages, or (ii) involves (and continues to involve)
claims for both money damages and equitable relief against the Indemnified
Party that cannot be severed, where the claims for money damages are the
primary claims asserted by the Third Party and the claims for equitable relief
are incidental to the claims for money damages. If the Indemnifying Party has
not acknowledged in writing its obligation to indemnify the Indemnified Party,
then the Indemnified Party shall have the right to assume and control the
defense or the settlement against such Third Party Claim. In the event that any
party exercises its right to undertake any such defense against any Third Party
Claim as provided above, then the other parties shall cooperate in such defense
and make available at such cooperating party expense all witnesses, pertinent
records, materials and information in such party’s possession and control
relating thereto as is reasonably required to by the party conducting the
defense.


 


(b)                                 The
Indemnifying Party or the Indemnified Party, as the case may be, shall have the
right to participate in (but not control), at its own expense, the defense of
any Third-Party Claim that the other is defending, as provided in this
Agreement.


 


(c)                                  The
Indemnifying Party, if it has assumed the defense of any Third-Party Claim as
provided in this Agreement, shall not consent to a settlement of, or the entry
of any judgment arising from, any such Third-Party Claim without the
Indemnified Party’s prior written consent (which consent shall not be
unreasonably withheld, conditioned or delayed) unless such settlement or
judgment relates solely to monetary damages. 
The Indemnifying Party shall not, without the Indemnified Party’s prior
written consent, enter into any compromise or settlement that (i) commits
the Indemnified Party to take, or to forbear to take, any action, or (ii) does
not provide for a complete release by such Third Party of the Indemnified
Party.  The Indemnified Party shall have
the sole and exclusive right to settle any Third-Party Claim, on such terms and
conditions as it deems reasonably appropriate, to the extent such Third-Party
Claim involves equitable or other non-monetary relief against the Indemnified
Party, and shall have the right to settle any Third-Party Claim involving money
damages for which the Indemnifying Party has not assumed the defense pursuant
to this Section 9.3 with the written consent of the Indemnifying Party,
which consent shall not be unreasonably withheld, conditioned or delayed.


 





















 


(d)                                 In
the event an Indemnified Party shall claim a right to payment pursuant to this
Agreement, such Indemnified Party shall send written notice of such claim to
the Indemnifying Party; but failure to give such notice shall not relieve the
Indemnifying Party of any liability hereunder (unless and to the extent that
the Indemnifying Party has suffered prejudice by such failure).  Such notice shall specify the basis for such
claim, the amount thereof, if known, and the method of computation thereof, all
with reasonable particularity and shall contain a reference to the provisions of
this Agreement in respect of which such a claim shall have been incurred.  Such notice shall be given promptly after the
Indemnified Party becomes aware of the basis for each such a claim.  The Indemnifying Party shall, within thirty
(30) days after receipt of such notice of an indemnified Loss, and subject to
the limitations set forth in Section 9.2, 
(i) pay or cause to be paid to the Indemnified Party the amount of
such Loss specified in such notice which the Indemnifying Party does not
contest, or (ii) notify the Indemnified Party if it wishes to contest the
existence or amount of part or all of such a Loss by stating with particularity
the basis upon which it contests the existence or amount thereof.


 


10.                               Miscellaneous
Provisions


 


10.1                        Notices


 


All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given upon receipt if (i) mailed by
certified or registered mail, return receipt requested, (ii) sent by
recognized overnight courier, fee prepaid, (iii) sent via facsimile with
receipt confirmed, or (iv) delivered personally, addressed as follows or
to such other address or addresses of which the respective party shall have
notified the other.


 


	
  If to
  Seller, to:

  	
   

  	
  TriQuint
  Semiconductor, Inc.

  
	
   

  	
   

  	
  Attn: Chief
  Financial Officer

  
	
   

  	
   

  	
  2300 NE
  Brookwood Parkway

  
	
   

  	
   

  	
  Hillsboro,
  OR 97124

  
	
   

  	
   

  	
  Facsimile:
  (503) 615-8904

  
	
   

  	
   

  	
   

  
	
  With a copy
  to:

  	
   

  	
  Ater Wynne
  LLP

  
	
   

  	
   

  	
  222 SW
  Columbia, Suite 1800

  
	
   

  	
   

  	
  Portland, OR
  97201

  
	
   

  	
   

  	
  Facsimile:
  (503) 226-0079

  
	
   

  	
   

  	
   

  
	
  If to Buyer,
  to:

  	
   

  	
  CyOptics, Inc.

  
	
   

  	
   

  	
  Attn: Chief
  Executive Officer

  
	
   

  	
   

  	
  7360 Windsor
  Drive

  
	
   

  	
   

  	
  Allentown,
  PA 18106

  
	
   

  	
   

  	
  Facsimile:
  (610) 336-5861

  
	
   

  	
   

  	
   

  
	
  With a copy
  to:

  	
   

  	
  Sonnenschein
  Nath & Rosenthal LLP

  
	
   

  	
   

  	
  Attn:
  Michael R. Flynn, Esq.

  
	
   

  	
   

  	
  1221 Avenue
  of the Americas

  
	
   

  	
   

  	
  New York, NY
  10020

  
	
   

  	
   

  	
  Facsimile:
  (212) 768-6800

  



 





















 


	
  If to
  Deposit Holder

  	
   

  	
  Ater Wynne
  LLP

  
	
  under the
  Deposit

  	
   

  	
  222 SW
  Columbia, Suite 1800

  
	
  Agreement:

  	
   

  	
  Portland, OR
  97201

  
	
   

  	
   

  	
  Facsimile:  (503) 226-0079

  



 


10.2                        Expenses


 


Except as otherwise provided in this Agreement, each party to this Agreement
will bear all the fees, costs and expenses that are incurred by it in
connection with the transactions contemplated hereby, whether or not such
transactions are consummated.


 


10.3                        Entire
Agreement


 


The agreement of the parties, which consists of this Agreement, the
Schedules and Exhibits hereto and the documents referred to herein, sets forth
the entire agreement and understanding between the parties and supersedes any
prior agreement or understanding, written or oral, relating to the subject matter
of this Agreement, including the Confidentiality Agreement (subject to Article 6)
and the letter of intent executed by the parties on February 23,
2005.  No amendment, supplement,
modification or waiver of this Agreement shall be binding unless in writing and
executed by both parties.


 


10.4                        Assignment;
Binding Effect; Severability


 


This Agreement may not be assigned by any party hereto without the
other party’s written consent; provided, that Buyer may transfer or assign in
whole or in part to one or more Buyer Designees its the right to purchase all
or a portion of the Purchased Assets, but no such transfer or assignment will
relieve Buyer of its obligations hereunder. 
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the successors, legal representatives and permitted assigns of
each party hereto.  The provisions of
this Agreement are severable, and in the event that any one or more provisions
are deemed illegal or unenforceable the remaining provisions shall remain in
full force and effect unless the deletion of such provision shall cause this
Agreement to become materially adverse to either party, in which event the
parties shall use reasonable commercial efforts to arrive at an accommodation
that best preserves for the parties the benefits and obligations of the
offending provision.


 


10.5                        Governing
Law


 


This agreement shall be governed by and construed and interpreted in
accordance with the laws of the state of Delaware applicable to contracts
performed entirely within that state, irrespective of the choice of laws
principles of the state of Delaware, as to all matters, including matters of
validity, construction, effect, enforceability, performance and remedies.


 


10.6                        Consent to
Jurisdiction


 


Each of Buyer and Seller irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts situated in Portland, Oregon, and
Allentown, Pennsylvania for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction


 





















 


contemplated
hereby.  Each of Buyer and Seller
irrevocably and unconditionally waives (and agrees not to plead or claim), any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the transactions contemplated hereby in the jurisdictions
set forth above or that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.


 


10.7                        Waiver of
Jury Trial


 


Each party hereby waives, and agrees to cause each of its Affiliates to
waive, to the fullest extent permitted by applicable Law, any right it may have
to a trial by jury in respect of any litigation directly or indirectly arising
out of, under or in connection with this Agreement.


 


10.8                        Execution
in Counterparts


 


This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.  Facsimile
signatures shall be legally effective for all purposes hereof.


 


10.9                        Public
Announcement


 


Prior to the signing of this Agreement, Seller will prepare a press
release and other disclosures that are required by Law announcing the
transaction contemplated hereby, subject to consultation with Buyer. After the
signing of this Agreement, Seller will disclose certain terms of the
transactions contemplated by this Agreement in certain public filings, investor
conferences, and other investor materials. 
Except for such press release and disclosures, neither Seller nor Buyer
shall, without the approval of the other, make any press release or other
announcement concerning the existence of this Agreement or the terms of the
transactions contemplated by this Agreement, except as and to the extent that
any such party shall be so obligated by Law, in which case the other party
shall be advised and the parties shall use their reasonable commercial efforts
to cause a mutually agreeable release or announcement to be issued; provided,
however, that the foregoing shall not preclude communications or disclosures
necessary to comply with accounting, stock exchange or federal securities or
labor relations Law disclosure obligations.


 


10.10                 No Third-Party
Beneficiaries


 


Nothing in this Agreement, express or implied, is intended to or shall (a) confer
on any Person other than the parties hereto and their respective successors or
assigns any rights (including Third-Party beneficiary rights), remedies,
obligations or liabilities under or by reason of this Agreement or (b) constitute
the parties hereto as partners or as participants in a joint venture.  This Agreement shall not provide Third
Parties with any remedy, claim, liability, reimbursement, cause of action or
other right in excess of those existing without reference to the terms of this
Agreement.  Nothing in this Agreement
shall be construed as giving to any Business Employee, or any other individual,
any right or entitlement to employment or continued employment or any right or
entitlement under any Benefit Plan, policy or procedure maintained by Seller,
except as expressly provided in such Benefit Plan, policy or procedure.  No Third Party shall have any rights under Section 502,
503 or 504 of ERISA or any regulations thereunder because of this Agreement
that would not otherwise exist without reference to this Agreement.  No Third Party shall have any right,
independent of any right that exists irrespective


 





















 


of this
Agreement, under or granted by this Agreement, to bring any suit at law or
equity for any matter governed by or subject to the provisions of this
Agreement.


 


10.11                 Waiver of Terms
or Conditions


 


Any term or condition hereof may be waived and at any time prior to the
Closing Date by the party hereto which is entitled to the benefits thereof,
provided, however, that such action shall be evidenced by a written instrument
duly executed on behalf of such party by its duly authorized officer.  The failure of either party to enforce at any
time any provision of this Agreement shall not be construed to be a waiver of
such provision nor shall it in any way affect the validity of this Agreement or
the right of such party thereafter to enforce each and every such
provision.  No waiver of any breach of
this Agreement shall be held to constitute a waiver of any other or subsequent
breach.


 


10.12                 Amendment of Agreement


 


This Agreement may be amended with respect to any provision contained
herein at any time prior to the Closing Date by action of the parties hereto
taken by their Boards of Directors or by their duly authorized officers or
employees, whether before or after such party’s action; provided, however, that
such amendment shall be evidenced by a written instrument duly executed on
behalf of each party by its duly authorized officer or employee.


 


11.                               Termination


 


11.1                        Termination


 


This Agreement may be terminated at any time prior to the Closing Date
by:


 


(a)                                  Mutual
Consent.  The mutual written consent
of Buyer and Seller;


 


(b)                                 Failure
of Buyer Condition.  Buyer upon
written notice to Seller if any of the conditions to the Closing set forth in Section 8.1
shall have become incapable of fulfillment on or prior to May 2, 2005 and
shall not have been waived in writing by Buyer;


 


(c)                                  Failure
of Seller Condition.  Seller upon
written notice to Buyer if any of the conditions to the Closing set forth in Section 8.2
shall have become incapable of fulfillment on or prior to May 2, 2005 and
shall not have been waived in writing by Seller;


 


(d)                                 Court
or Administrative Order.  Buyer or
Seller if (i) there shall be in effect a final, non-appealable order of a
court or government administrative agency of competent jurisdiction prohibiting
the consummation of the transactions contemplated hereby or (ii) if there
shall be any Law that makes consummation of the transactions contemplated
hereby illegal or otherwise prohibited; or


 


(e)                                  Delay.
Buyer or Seller if the Closing shall not have occurred by May 6, 2005.


 





















 


provided,
however, that the party seeking termination pursuant to clause (b), (c) or
(e) is not then in breach in any material respect of any of its
representations, warranties, covenants or agreements contained in this
Agreement.


 


11.2                        Effect of
Termination


 


In the event of the termination of this Agreement in accordance with Section 11.1,
this Agreement shall become void and have no effect, without any liability on the
part of any party or its directors, officers or stockholders, except for the
obligations of the parties hereto as provided in Section 5.9(a) relating
to the deposit, Article 6 relating to the obligations of Buyer and Seller
to keep confidential certain information, Section 10.2 relating to certain
expenses, Section 10.9 relating to publicity and this Section 11.2.  Nothing in this Section 11.2 shall be
deemed to release either party from any liability for any willful and material
breach of any obligation or covenant hereunder.


 


[The rest of this page is intentionally
blank.]


 





















 


IN WITNESS WHEREOF, each party has caused this Agreement to be duly
executed on its behalf by its duly authorized officer as of the date first
written above.


 


	
  Seller:

  	
  Buyer:

  
	
   

  	
   

  
	
  TRIQUINT
  SEMICONDUCTOR, INC.

  	
  CYOPTICS,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/

  	
  Raymond A. Link

  	
   

  	
  By:

  	
  /s/

  	
  Ed J. Coringrato

  	
   

  
	
  Name:

  	
   

  	
  Raymond A. Link

  	
   

  	
  Name:

  	
   

  	
  Ed J. Coringrato

  	
   

  
	
  Title:

  	
   

  	
  Vice-President and CFO

  	
   

  	
  Title:

  	
   

  	
  President and CEO

  	
   

  



 





















 


EXHIBIT A


 


ASSIGNMENT
AND ASSUMPTION AGREEMENT

AND

BILL OF SALE


 


THIS ASSIGNMENT AND ASSUMPTION AGREEMENT AND
BILL OF SALE (the “Agreement”) is
made as of April 29, 2005 by and between TriQuint Semiconductor, Inc.,
a Delaware corporation (“TSI”),
TriQuint Optoelectronics, Inc., a Delaware Corporation (“TOI” and, together with TSI, the “Assignor”) and CyOptics, Inc., a
Delaware corporation (“Assignee”).


 


RECITALS


 


A.                                   Assignor and
Assignee are parties to that certain Asset Purchase Agreement dated as of April 29,
2005 (the “Purchase Agreement”).


 


B.                                     Pursuant to the
Purchase Agreement, TSI agreed, and agreed to cause TOI, to sell, transfer and
assign to Assignee, and Assignee agreed to purchase and accept from Assignor,
the Purchased Assets, and Assignee agreed to assume, the Assumed Liabilities,
in each case as more fully described, and upon the terms and subject to the
conditions set forth, in the Purchase Agreement.


 


C.                                     Assignor desires
to grant, bargain, sell, assign, transfer and deliver to Assignee, and Assignee
desires to purchase, accept, acquire and assume, the Purchased Assets.


 


D.                                    Assignor desires to
transfer and assign, and Assignee desires to assume and subsequently pay,
perform, honor, discharge when due and payable, the Assumed Liabilities.


 


F.                                      Assignor is the
owner of the Purchased Assets.


 


G.                                     Capitalized terms
used but not defined herein shall have the meanings provided in the Purchase
Agreement.


 


NOW, THEREFORE,
in consideration of the foregoing premises, for good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, and in
further consideration of the mutual agreements and covenants herein contained
and intending to be legally bound, the parties hereto hereby agree as follows:


 


AGREEMENT


 


1.                                       Assignor hereby
GRANTS, BARGAINS, SELLS, TRANSFERS, ASSIGNS, CONVEYS and DELIVERS to Assignee
all right, title and interest in and to the Purchased Assets listed on Schedule A
hereto, but excluding the Excluded Assets, in accordance with, and subject to,
the terms and conditions of the Purchase Agreement.


 





















 


2.                                       Assignee hereby
accepts, assumes and agrees to pay, perform, honor, discharge when due and
payable the Assumed Liabilities, but excluding the Excluded Liabilities, in
accordance with, and subject to, the terms and conditions of the Purchase
Agreement.


 


3.                                       Each party, for
itself, its Affiliates, and its successors and assigns, hereby covenants and
agrees that, at any time and from time to time forthwith upon the written
request of the other party, it will do, or cause its Affiliates to, execute,
acknowledge and deliver or cause to be done, executed, acknowledged and
delivered, each and all of such further acts, deeds, assignments, transfers,
conveyances, powers of attorney and assurances as may reasonably be required by
the other party or as required pursuant to the Purchase Agreement in order to (a) assign,
transfer, set over, convey, assure and confirm unto and vest in Assignor, its
successors and assigns, title to the Purchased Assets sold, assigned, conveyed,
transferred and delivered by this Agreement, or (b) accept, assume and
pay, perform, honor, discharge when due and payable the Assumed Liabilities
assumed pursuant to this Agreement.


 


4.                                       This Agreement
is subject to the terms and conditions of the Purchase Agreement, which are
incorporated herein by reference, and shall be binding upon Assignor and
Assignee, and their respective successors and assigns.


 


5.                                       This agreement
shall be governed by and construed and interpreted in accordance with the laws
of the State of Delaware irrespective of the choice of laws principles of the
State of Delaware, as to all matters, including matters of validity,
construction, effect, enforceability, performance and remedies.


 


[The rest of this page is
intentionally blank.]


 





















 


IN WITNESS WHEREOF, each of Assignor and
Assignee has caused this Agreement to be duly executed on its behalf by its
duly authorized officer as of the date first written above.


 


	
  Assignor:

  	
  Assignee:

  
	
   

  	
   

  
	
  TRIQUINT SEMICONDUCTOR, INC.

  	
  CYOPTICS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Stephanie Welty

  	
   

  	
  By:

  	
  /s/ Ed
  Coringrato

  	
   

  
	
  Name:

  	
  Stephanie
  Welty

  	
   

  	
  Name:

  	
  Ed
  Coringrato

  	
   

  
	
  Title:

  	
  Vice
  President - Finance

  	
   

  	
  Title:

  	
  President
  and CEO

  	
   

  
	
   

  	
   

  
	
  Assignor:

  	
   

  
	
   

  	
   

  
	
  TRIQUINT OPTOELECTRONICS, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Stephanie Welty

  	
   

  	
   

  
	
  Name:

  	
  Stephanie
  Welty

  	
   

  	
   

  
	
  Title:

  	
  Vice
  President - Finance

  	
   

  	
   

  



 





















 


EXHIBIT B


 




 





 


INTELLECTUAL
PROPERTY AGREEMENT


 


 


by
and between


 


 


TRIQUINT
SEMICONDUCTOR, INC.


 


 


and


 


 


CYOPTICS,
INC.


 


 


Dated
April 29, 2005


 




 





 





















 


CONFIDENTIAL


 


TABLE OF CONTENTS


 


	
  ARTICLE I. DEFINITIONS

  	
   

  
	
   

  	
   

  
	
  ARTICLE II. SOFTWARE
  LICENSES

  	
   

  
	
   

  	
   

  
	
  ARTICLE III.
  LICENSES TO INFORMATION

  	
   

  
	
   

  	
   

  
	
  ARTICLE IV. PATENT
  LICENSES

  	
   

  
	
   

  	
   

  
	
  ARTICLE V.
  ASSIGNMENT OF TRADEMARKS

  	
   

  
	
   

  	
   

  
	
  ARTICLE VI. EXPORT
  CONTROL

  	
   

  
	
   

  	
   

  
	
  ARTICLE VII.
  TERM AND TERMINATION

  	
   

  
	
   

  	
   

  
	
  ARTICLE VIII. ASSIGNABILITY

  	
   

  
	
   

  	
   

  
	
  ARTICLE IX.
  LICENSES TO RELATED COMPANIES AND IMPROVEMENTS

  	
   

  
	
   

  	
   

  
	
  ARTICLE X.
  RIGHTS AND OBLIGATIONS

  	
   

  
	
   

  	
   

  
	
  ARTICLE XI.
  WARRANTIES AND COVENANTS

  	
   

  
	
   

  	
   

  
	
  ARTICLE XII.
  GENERAL PROVISIONS

  	
   

  
	
   

  	
   

  
	
  ARTICLE XIII.
  NOTICES

  	
   

  



 





















 


INTELLECTUAL PROPERTY AGREEMENT


 


THIS INTELLECTUAL PROPERTY AGREEMENT (this “Agreement”) is made by and between TRIQUINT SEMICONDUCTOR,
INC., a Delaware corporation (“TriQuint”
or “Seller”) and CYOPTICS, INC., a
Delaware corporation (“Buyer”).  Seller and Buyer are sometimes referred to
herein individually as a “Party”
and collectively as the “Parties.”


 


R
E C I T A L S


 


A.                                   This Agreement is provided as Exhibit B to
a certain Asset Purchase Agreement dated as of April 14, 2005 (the “Purchase Agreement”) entered into by and
between TriQuint and Buyer pursuant to which TriQuint is selling and Buyer is
acquiring certain Purchased Assets, as that term is defined in the Purchase
Agreement.  This Agreement is executed upon
the signing by all Parties and shall become effective concurrent with and on
the Closing Date of the Purchase Agreement (the “Effective Date”);


 


B.                                     This
Agreement is intended by the Parties to address, among other things, the
intellectual property rights and Information either included in the Purchased
Assets or licensed to Buyer; and


 


C.                                     In
connection with the sale and purchase of the Optoelectronics Business, Seller
agrees to assign certain intellectual property rights to Buyer and to license
certain intellectual property rights to Buyer, in each case in accordance with
the terms hereof.


 


The Parties agree as follows:


 


ARTICLE I.

DEFINITIONS


 


1.01                        Unless
otherwise defined in Appendix A attached hereto, as used in this Agreement any
term in initial capital letters shall have the meaning ascribed thereto in the
Purchase Agreement.


 


ARTICLE II.

SOFTWARE LICENSES


 


2.01                        Seller
hereby grants to Buyer a fully paid-up, royalty-free, worldwide, perpetual
irrevocable (subject to Article VII) and non-transferable (except as
provided in Article VIII) license the (“Software
License”) to use, copy, sublicense and distribute the Licensed
Software, and create, use, copy, sublicense and distribute Derivative Works
from the Licensed Software in connection with the conduct or operation of the
Optoelectronics Business, under any and all copyright, trade secret and other
intellectual property rights (other than patent rights which are specifically
granted in Article IV herein) in the Licensed Software owned by Seller or
its Related Companies or in which Seller or its Related Companies have a right
to license as of the Effective Date including, but not limited to, the right (i) to
reproduce the Code of and Documentation for


 





















 


such Licensed
Software; (ii) to sell, lease, sublicense (but only to the extent that
Seller has a right to authorize Buyer to grant such a sublicense and provided
that Seller shall not be obligated to pay any consideration for such sublicense
authorization) or otherwise transfer copies of the Licensed Software and
Derivative Works therefrom, in whole or in part for use within the scope of the
Optoelectronics Business; and (iii) to combine the Licensed Software and
Derivative Works therefrom with other software or hardware within the scope of
the Optoelectronics Business.


 


The Software License shall remain exclusive for a period of three (3) years
from the Effective Date after which the Software License shall become
non-exclusive.


 


2.02                        Seller
agrees to deliver to Buyer, within thirty (30) days of the Effective Date,
complete and useable copies of the Licensed Software and any related
Documentation and Code. To Seller’s knowledge, all of the Licensed Software
will, as of the Effective Date, be included in the Principal Equipment
transferred to Buyer or otherwise in the possession of the Transferred
Employees.  Notwithstanding the
foregoing, Seller agrees to take all steps reasonably requested by Buyer in
connection with promptly delivering to Buyer any copies of any components of
the Licensed Software, Documentation and Code not delivered to Buyer as of the
Effective Date. Buyer agrees that the previous sentences provide Buyer’s sole
remedy for Seller’s failure to deliver the Licensed Software, and is
specifically enforceable.


 


2.03                        The
Parties recognize that the best or only available copy of certain Licensed
Software may reside, after the Effective Date, within the Optoelectronics
Business or in the possession of the Optoelectronics Business, and that Seller
may require certain access to or copies of the Licensed Software for purposes consistent
with this Agreement, which, because of inadvertence or oversight, a copy was
not retained by or made available to Seller prior to the Effective Date.  To that end, Buyer agrees for a period of six
months following the Effective Date, upon receiving a written request from
Seller, to provide, within a commercially reasonable amount of time after
receipt of Seller’s written request, copies of any portion of the Licensed
Software, in the form such software was delivered from Seller to Buyer as of
the Effective Date, in order for Seller or one of its Related Companies to
exercise its rights in accordance with this Agreement.  Any reasonable costs associated with the
assembling, copying and delivering of such requested Licensed Software shall be
borne by Seller. Seller agrees that the second preceding sentence provides
Seller’s sole remedy for Buyer’s failure to deliver the Licensed Software, and
is specifically enforceable.


 


2.04                        Seller
grants to Buyer a sublicense under those software license rights granted to
Seller by any third party pursuant to any license agreement between such third
party and Seller existing as of the Effective Date of this Agreement and in
use, contemplated for use, or previously used in the Optoelectronics Business
(the “Third Party Software Sublicense”),
but only to the extent that Seller has a right to grant such a sublicense and
provided that Seller shall not be obligated to pay any consideration for such
sublicense or relinquish its own licenses, and if otherwise consistent with those
limitations, with rights and obligations co-extensive with the rights and
obligations granted to Seller and which Seller grants to its own Licensed
Software herein.  To the extent Seller
would be required to pay any consideration for such sublicense, should Buyer
wish to effect such sublicense, Buyer shall be responsible for the payment of
such


 





















 


consideration and
shall have the right to negotiate with the licensor relating to such
consideration, and shall hold Seller harmless from any failure of Buyer to pay
the consideration due under any such sublicense.  Seller shall not grant any other person or
entity a Third Party Software Sublicense for a period of three (3) years
from the Effective Date.


 


ARTICLE III.

LICENSES TO INFORMATION


 


3.01                        Seller
grants to Buyer a fully paid-up, royalty-free worldwide, irrevocable, perpetual
(subject to Article VII) and non-transferable (except as provided in Article VIII)
license to use, copy, sublicense and distribute Licensed Technical Information,
and create, use, copy, sublicense and distribute Derivative Works from the
Licensed Technical Information, in connection with the conduct and operation of
the Optoelectronics Business under any and all copyright, trade secret and other
intellectual property rights in such Licensed Technical Information (other than
patent rights which are specifically granted in Article IV herein) owned
by Seller or its Related Companies as of the Effective Date.  The foregoing license shall be exclusive for
a period of three (3) years from the Effective Date, after which period
such license shall become non-exclusive.


 


3.02                        Seller
grants to Buyer a non-transferable (except as provided in Article VIII)
right, as an attribute of the right to use the Licensed Technical Information
in Section 3.01, to communicate (subject to confidentiality provisions at
least as restrictive as those in Section 11.03) portions of and grant
nonexclusive sublicenses (of the same scope as the licenses granted to Buyer
under Section 3.01) to such Licensed Technical Information to third party
suppliers or manufacturers for the procurement by Buyer of materials,
manufacturing facilities, parts and/or components reasonably necessary for use
by Buyer in the manufacture and assembly of Products of the Optoelectronics Business
in accordance with this Agreement.


 


3.03                        Seller
agrees to deliver to Buyer, within 30 days of the Effective Date, copies of all
documents of whatever kind in whatever medium, whether electronic or otherwise,
that embody the Licensed Technical Information. To Seller’s knowledge, all of
the Licensed Technical Information will, on the Effective Date, be included in
the Business Records transferred to Buyer or otherwise in the possession of the
Transferred Employees.  Notwithstanding
the foregoing, Seller agrees to take all steps reasonably requested by Buyer in
connection with delivering to Buyer any documents that embody the Licensed
Technical Information not delivered to Buyer on the Effective Date.  Buyer agrees that the previous sentences
provide Buyer’s sole remedy for Seller’s failure to deliver the Licensed
Technical Information, and is specifically enforceable.


 


3.04                        The
Parties recognize that the best or only available copy of certain Licensed
Technical Information may reside, after the Effective Date, within the
Optoelectronics Business or in the possession of the Optoelectronics Business,
and Seller may require certain access to or copies of the Licensed Technical
Information for purposes consistent with this Agreement, which because of
inadvertence or oversight, a copy was not retained by or made available to
Seller prior to the Effective Date.  To
that end, Buyer agrees for a period of six months following the Effective Date,
upon receiving a written request from Seller, to provide, within a commercially


 





















 


reasonable amount
of time after receipt of Seller’s written request, copies of any portion of the
Licensed Technical Information, in the form such information was delivered from
Seller to Buyer as of the Effective Date, in order for Seller or one of its
Related Companies to exercise its rights in accordance with this Agreement. Any
reasonable costs associated with the assembling, copying and delivering of such
requested Licensed Technical Information shall be borne by Seller. Seller
agrees that the second preceding sentence provides Seller’s sole remedy for
Buyer’s failure to deliver the identified information, and is specifically
enforceable.


 


3.05                        Seller
grants to Buyer a sublicense under those Information license rights granted to
Seller by any third party pursuant to any license agreement between such third
party and Seller existing as of the Effective Date of this Agreement and in
use, contemplated for use, or previously used in the Optoelectronics Business
(the “Third Party Information Sublicense”),
but only to the extent that Seller has a right to grant such a sublicense and
provided that Seller shall not be obligated to pay any consideration for such
sublicense or relinquish its own licenses, and if otherwise consistent with
those limitations, with rights and obligations co-extensive with the rights and
obligations Seller grants to its own Licensed Technical Information
herein.  To the extent Seller would be
required to pay any consideration for such sublicense, should Buyer wish to
effect such sublicense, Buyer shall be responsible for the payment of such
consideration and shall have the right to negotiate with the licensor relating
to such consideration, and shall hold Seller harmless from any failure of Buyer
to pay the consideration due under any such sublicense.  Seller shall not grant any other person or
entity a Third Party Information Sublicense for a period of three (3) years
from the Effective Date.


 


ARTICLE IV.

PATENT LICENSES


 


4.01                        Subject
to the consideration recited in the Purchase Agreement, Seller hereby grants to
Buyer a fully paid-up, royalty-free, worldwide, perpetual, non-transferable
(except as provided in Article VIII) and irrevocable (subject to Article VII)
license (the “Patent License”)
under the Licensed Patents, excluding the Manufacturing Inventions of the
Licensed Patents, to make, have made, use, sell, have sold, offer to sell,
lease and import Optoelectronics Products. Licenses granted in this Section 4.01
to Buyer are not to be construed either (i) as consent by Seller to any
act which may be performed by Buyer, except to the extent impacted by a patent
licensed herein to Buyer, or (ii) to include licenses to contributorily
infringe or induce infringement under U.S. law or a foreign equivalent thereof.


 


The Patent License shall remain exclusive for a period of three (3) years
from the Effective Date after which the Patent License shall become
non-exclusive.  Notwithstanding the
foregoing, during such three year period Seller shall have the right to
non-exclusively license the Licensed Patents (other than the Licensed Patents
listed on Appendix E hereto) in instances where Seller is threatened or sued by
a third party based on allegations of patent infringement by Seller of the
third party’s patents and Seller reasonably and in good faith determines that
cross-licensing of one or more of the Licensed Patents is in its commercial
best interest as a means of resolving such threat or suit, provided, that the
granting of such license is not a sham to re-license the Licensed Patents to a
third party in circumvention of the three year exclusivity period provided for
herein.  Seller will promptly notify
Buyer upon its decision to grant such a license,


 





















 


and will use
reasonable good faith efforts to do so with 30 days advance notice, or in any
case such advance notice of the grant as may be commercially possible under the
circumstances.


 


4.02                        The
patent licenses granted hereunder to Licensed Patents shall extend until the
patent’s expiration or the expiration of as much of such term as Seller has the
right to grant, unless otherwise terminated in accordance with the terms of
this Agreement.


 


4.03                        Seller’s
failure to meet its exclusivity obligations hereunder, due to assignment of
title to any invention or patent, or the granting of any licenses, to the
United States Government or any agency or designee thereof as required under a
statute or regulation of such Government or agency shall not constitute a
breach of this Agreement, unless such assignment or license resulted from Seller’s
failure to act where Seller had the ability to prevent such assignment or
license by timely action.


 


4.04                        Seller
grants to Buyer a sublicense under those patent license rights granted to
Seller by any third party pursuant to any patent license agreement between such
third party and Seller existing as of the Effective Date of this Agreement and
in use, contemplated for use or previously used in the Optoelectronics Business
(the “Third Party Patent Sublicense”),
but only to the extent that Seller has a right to grant such a sublicense and
provided that Seller shall not be obligated to pay any consideration for such
sublicense or relinquish its own licenses, and if otherwise consistent with
those limitations, with rights and obligations co-extensive with the rights and
obligations Seller grants to its own patents herein.  To the extent Seller would be required to pay
any consideration for such sublicense, should Buyer wish to effect such
sublicense, Buyer shall be responsible for the payment of such consideration
and shall have the right to negotiate with the licensor relating to such
consideration, and shall hold Seller harmless from any failure of Buyer to pay
the consideration due under any such sublicense.  Seller shall not grant
any other person or entity a Third Party Patent Sublicense for a period of
three (3) years from the Effective Date.  


 


4.05                        The
have made rights granted to Buyer hereunder shall not be exercised in a manner
whereby the exercise of such have made rights is a sham to sublicense the
Licensed Patents to a third party and not for bona
fide business purposes of the Buyer.


 


ARTICLE V.

ASSIGNMENT OF TRADEMARKS AND AGREEMENT


 


5.01                        Seller
agrees to transfer and assign, pursuant to the Trademark Assignment attached as
Appendix D hereto, to Buyer all of its worldwide right, title and interest in
and to the Assigned Marks and the good will associated therewith as well as all
rights, privileges and priorities of Seller, as well as the right to sue at law
or in equity in respect of past, present and future infringement of any of such
Assigned Marks, including the right to receive all proceeds or damages
therefrom. Such assignment shall be subject to all agreements entered into
between Seller, its predecessors (including AT&T Corp. and its Subsidiaries,
Lucent Technologies and its Subsidiaries, and Agere Systems, Inc. and its
Subsidiaries) or its Related Companies, and one or more third parties prior to
the Effective Date of this Agreement. 
Seller attests that there have


 





















 


been no agreements
entered into by Seller or its predecessors or its related companies relating to
the Assigned Marks.


 


5.02                        Buyer
shall bear any and all administrative and similar costs external to Seller
related to the recordation or transfer of title of Assigned Marks from Seller
to Buyer pursuant to Section 5.01 above. 
Seller for no additional consideration but at Buyer’s expense for any
out of pocket costs shall execute all documents and perform all acts as
required to give effect to the assignment and recording of the transfer of
Assigned Marks to Buyer under this Agreement.


 


5.03                        Seller hereby assigns all of
Seller’s rights, title and interest in that certain Intellectual Property
Agreement by and between Agere Systems Inc. and Seller, dated January 2,
2003 (the “Agere Agreement”), and
pursuant to Section 11.02 of the Agere Agreement, Buyer hereby becomes and
is deemed substituted as the “Buyer” thereunder.  Buyer hereby accepts the assignment of the
Agere Agreement by its signature below, and agrees to provide any documents to
Agere as reasonably necessary to document and substantiate such
acceptance.  Seller and Buyer agree to
and shall comply with the requirements of the Agere Agreement, Section 11.02,
regarding Assignment.  Seller and Buyer
agree that the assignment of the Agere Agreement to Buyer shall not deprive
Seller of the intellectual property rights that were assigned (as opposed to
licensed) by Agere to Seller under the Agere Agreement (“Assigned IP”) and to the extent that Seller’s
assignment of the Agere Agreement to Buyer hereunder effects a transfer of the
Assigned IP to Buyer, Buyer hereby assigns to Seller all Assigned IP.  Such Assigned IP, to the extent related to
the Optoelectronics Business, shall be included in, be covered by and remain
subject to the licenses granted to Buyer hereunder.


 


ARTICLE VI.

EXPORT CONTROL


 


6.01                        The
Parties acknowledge that information and software (including, but not limited
to, services and training) provided under this Agreement are subject to U.S.
export laws and regulations and any use or transfer of such information and
software must be authorized under those regulations.  Each Party hereby assures the other Party
that it will comply with all applicable export laws of the U.S. as may be in
effect at the time any export of such information or software is made.


 


ARTICLE VII.

TERM AND TERMINATION


 


7.01                        This
Agreement shall be effective during the term commencing on the Effective Date
hereof and shall continue unless terminated by mutual agreement between the
Parties.


 


7.02                        The
rights and obligations of Buyer and Seller which by their nature would continue
beyond termination of this Agreement shall survive and continue after any
termination of this Agreement, including without limitation, confidentiality
obligations.


 


7.03                        If a
Party shall fail to fulfill one or more of its material obligations under this
Agreement or the Purchase Agreement, to the extent that any such failure is not
attributable to


 





















 


any failure on the
part of the other Party to perform any of its obligations under this Agreement,
the non-breaching Party may upon its election and in addition to any other
remedies that it may have, at any time terminate the licenses granted under
this Agreement by not less than two (2) months prior written notice to the
breaching Party specifying any such breach or failure, unless within the period
of such notice all grounds specified therein for termination pursuant to this Section 7.03
shall have been remedied.


 


Notwithstanding the foregoing, the Parties agree that a single inadvertent
disclosure by a Party of an insubstantial portion (or more than one inadvertent
disclosures that collectively are not substantial) of the other Party’s
Confidential Information in violation of the provisions of Section 11.03
will not be considered a material breach giving rise to a right of termination
under this Section 7.03; provided that the disclosing party uses best
commercially reasonable efforts to restore the confidentiality of the disclosed
information.


 


ARTICLE VIII.

ASSIGNABILITY


 


8.01                        The
Parties hereto have entered into this Agreement in contemplation of personal
performance, each by the other, and intend that the licenses and rights granted
hereunder to a Party not be extended other than by an assignment pursuant to Section 8.02
to entities other than such Party’s Related Companies without the other Party’s
express written consent.


 


8.02                        All of
a Party’s rights, title and interest in this Agreement and any licenses and
rights granted to it hereunder may be assigned to any of its Related Companies
or any direct or indirect successor to all or a portion of the business of the
Party, which successor shall thereafter be deemed substituted as the Party
hereto, effective upon such assignment subject to written acceptance of such
assignment by such successor. 
Notwithstanding any such assignment to a successor, any licenses
assigned herein to the successor do not include any past or future licenses to
products that are sold or otherwise distributed, directly or indirectly, by
such successor prior to any assignment.


 


ARTICLE IX.

LICENSES TO RELATED COMPANIES AND IMPROVEMENTS


 


9.01                        The
grant of each license hereunder includes the right to grant sublicenses, within
the scope of the original license grant, to a Party’s Related Companies for so
long as they remain its Related Companies. Any and all licenses or sublicenses
granted to Related Companies pursuant to this Agreement may be made effective
retroactively, but not prior to the Effective Date hereof, nor, unless
otherwise authorized pursuant to another provision of this Agreement, prior to
the sublicensee’s becoming a Related Company of such Party.


 


9.02                        Unless
otherwise specifically expressed in this Agreement, the Purchase Agreement or
the Collateral Agreements, no license to, or right of a Party, under any
patent, copyright, trademark, trade secret, or any other intellectual property
right, is either granted or implied by conveying any information to such Party.


 





















 


9.03                        Any
improvements and Derivative Works created by a Party, including pursuant to a
license granted hereunder, and all rights therein shall belong to the Party
that created such improvement and/or such Derivative Work, as the case may be,
provided that this clause shall not act to extend Buyer’s rights under any
third party software, information, or patents beyond those rights which Seller
has the legal right to grant.


 


9.04                        Except
as otherwise expressly provided for herein or the Purchase Agreement or the
Collateral Agreements, no rights are granted to a Party under any improvements
or Derivative Works of the Licensed Software or the Licensed Technical
Information to the extent made by the other Party after the Effective Date.


 


9.05                        The
grant of each license or sublicense hereunder also includes the right of a
Party to sublicense (within the scope of its own license) any business which is
divested by that Party or any of its Related Companies, provided, that the
sublicense is granted within sixty (60) days of divestiture, and provided, that
any such sublicense of any tier shall not include any past or future licenses
to products which are sold or otherwise distributed, directly or indirectly, by
an acquiror of such business prior to the date of acquisition even if they are
of the same kind or similar to those of the divested business, and finally,
provided that, with respect to Licensed Software, Licensed Technical
Information, and Licensed Patents that are themselves held by Seller under
license, Seller has the rights to grant sub-sublicense rights subject to the
terms of this Agreement.


 


ARTICLE X.

RIGHTS AND OBLIGATIONS


 


10.01                 For any
license provided from one Party to the other, the licensee shall, at its sole
expense, comply at all times with all applicable laws and regulations in
connection with the use of the rights licensed to it hereunder, and obtain all
appropriate permits and approvals, as applicable.


 


10.02                 The licenses
granted herein by Seller or Buyer, as the case may be, shall be deemed to be,
for purposes of Section 365(n) of the U.S. Bankruptcy Code, to the fullest
extent permitted by law, licenses to rights in “intellectual property” as
defined in Section 101 of the Bankruptcy Code.  The Parties agree that the licensee to any
such licenses, as the case may be, shall retain and may fully exercise all of
its rights and elections under the Bankruptcy Code.  In the event that a bankruptcy proceeding
under the Bankruptcy Code is commenced by or against the licensor of any such
licenses, the licensee shall be entitled to retain all of its rights under this
Agreement (including without limitation all rights and licenses granted herein)
pursuant to Section 365(n) of the U.S. Bankruptcy Code.


 


ARTICLE XI.

WARRANTIES AND COVENANTS


 


11.01                 Except as
expressly provided herein, all warranties and representations are exclusively
set forth in the Purchase Agreement.


 





















 


11.02                 (a)                                  EXCEPT
AS EXPRESSLY PROVIDED HEREIN OR IN THE PURCHASE AGREEMENT, THE TECHNICAL
INFORMATION, SOFTWARE OR OTHER INFORMATION OR RIGHTS ASSIGNED OR LICENSED UNDER
THIS AGREEMENT IS ASSIGNED OR LICENSED “AS IS” WITH ALL FAULTS, AND WITHOUT ANY
WARRANTY OF ANY TYPE.  EXCEPT AS
EXPRESSLY PROVIDED HEREIN OR IN THE PURCHASE AGREEMENT SELLER AND ITS RELATED
COMPANIES MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED.  BY WAY OF EXAMPLE, BUT NOT OF LIMITATION, EXCEPT
AS EXPRESSLY PROVIDED HEREIN OR IN THE PURCHASE AGREEMENT SELLER AND ITS
RELATED COMPANIES MAKE NO REPRESENTATIONS OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR THAT THE USE OF THE TECHNICAL INFORMATION, SOFTWARE OR
OTHER INFORMATION WILL NOT INFRINGE ANY PATENT OR OTHER INTELLECTUAL PROPERTY
RIGHT OF ANY THIRD PARTY AND IT SHALL BE THE SOLE RESPONSIBILITY OF BUYER TO
MAKE SUCH DETERMINATION AS IS NECESSARY WITH RESPECT TO THE ACQUISITION OF
LICENSES UNDER PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.


 


(b)                                  EXCEPT
AS EXPRESSLY PROVIDED HEREIN OR IN THE PURCHASE AGREEMENT, SELLER AND ITS
RELATED COMPANIES SHALL NOT BE HELD TO ANY LIABILITY WITH RESPECT TO ANY PATENT
INFRINGEMENT OR ANY OTHER CLAIM MADE BY BUYER OR ANY THIRD PARTY ON ACCOUNT OF,
OR ARISING FROM THE USE OF, THE TECHNICAL INFORMATION, SOFTWARE, RIGHTS, OR
OTHER INFORMATION ASSIGNED OR LICENSED HEREUNDER.


 


11.03                 Each Party
agrees:


 


(a)                                  that it will not,
without the other Party’s express written permission or as provided herein or
in the Purchase Agreement, or as otherwise agreed to in writing, (i) use
in advertising, publicity, or otherwise any trade name, trademark, trade
device, service mark, logo, symbol, trade dress or any other identification or
any abbreviation, contraction or simulation thereof owned or used by the other
Party or any of its Related Companies, or (ii) represent, directly or
indirectly, that any product or service produced in whole or in part with the
use of any of the Licensed Software or Licensed Technical Information is a
product or service of the other Party or any of its Related Companies; and


 


(b)                                 that except as
otherwise expressly provided for in this Agreement, it will hold in confidence
for the other Party all private or confidential information of the other Party,
including any Licensed Software or Licensed Technical Information licensed
hereunder that the receiving Party’s personnel may unavoidably receive or have
access to during the term of this Agreement (“Confidential
Information”).  Each Party
further agrees that all Confidential Information shall remain the property of
the Party that provides such information and, except as required to exercise
its rights under this Agreement, that the receiving Party shall not make any
disclosure of such information to anyone, except to its employees to whom such
disclosure is necessary to the use for which rights are granted hereunder.  Each Party shall appropriately notify


 





















 


all employees to
whom any such disclosure is made that such disclosure is made in confidence and
shall be kept in confidence by them.  The
Licensed Software and Licensed Technical Information shall be deemed
confidential information of both Parties.


 


(c)                                  The restrictions
under Section 11.03(b) on the use or disclosure of such Confidential
Information shall not apply to such information:


 


(i)                                     which is
independently developed by such Party or is lawfully received, free of
restriction, from another source having the right to so furnish such
information; or


 


(ii)                                  after it has become
generally available to the public by acts not attributable to such Party or its
employees, agents or contractors; or


 


(iii)                               which at the time of
disclosure to such Party was known to such party free of restriction and
evidenced by documentation in such Party’s possession; or


 


(iv)                              which the other Party
agrees in writing is free of such restrictions; or


 


(v)                                 which is requested
pursuant to a judicial or governmental request, requirement or order under law,
provided that such Party provides the other Party with sufficient prior notice
in order to contest such request, requirement or order or seek protective
measures.


 


(d)                                 In the event of any
conflict between the representations and warranties in this Agreement and the
representations and warranties in the Purchase Agreement, the representations
and warranties in the Purchase Agreement shall prevail.


 


11.04                 Prosecution and
Protection of Intellectual Property


 


(a)                                  If Buyer’s
intellectual property counsel can reasonably demonstrate to Seller that certain
identified Licensed Patents are infringed by a third party, Seller shall in
good faith use commercially reasonable efforts to protect the underlying
Licensed Patents.  Any such efforts shall
be determined in Seller’s sole discretion, which discretion will be reasonably
exercised considering in good faith the impact of the infringement on Buyer’s
business.


 


(b)                                 Seller shall use
commercially reasonable efforts to continue its prosecution of any
applications, continuations or extensions of the Licensed Patents, in each case
in a manner  reasonably consistent with
its prior practice.  If Seller elects not
to pursue such efforts, it shall comply with Section 11.06 with respect to
the Licensed Patent(s) in question, whereupon Seller shall be released from its
obligations under this paragraph (b) with respect thereto.


 


11.05                 Right to Request
Interest in Patents


 


(a)                                  Buyer shall have the
right to request that Seller transfer sufficient interest to Buyer in one or
more Licensed Patents for the limited purpose of filing suit against an
identified third party with respect to a product of such third party which,
after diligent inquiry


 





















 


and reasonable
belief, Buyer is of the opinion infringes one or more claims of a Licensed
Patent and where Seller elects not to bring any action in accordance with Section 11.04.
Buyer shall make such request in writing, and shall specify the identity of the
third party, the relevant Licensed Patent(s), and the subject matter of the
prospective suit, including the products of the third party that will be
identified in the suit.


 


(b)                                 Seller may in its
discretion, which discretion will be reasonably exercised considering in good
faith the impact of the infringement on Buyer’s business, transfer a sufficient
interest in the identified patents for the sole purpose of allowing Buyer to
file a lawsuit against the third party.


 


(c)                                  Buyer’s rights with
respect to any interest in any patent transferred to Buyer pursuant to this Section 11.05
shall be limited to filing, maintaining, and settling the suit and claims
arising therefrom.  Seller reserves the
right to defend the validity, enforceability, and its ownership of any such
patents and to intervene to protect its business interests.  Buyer shall have no right to grant licenses
or releases under any such patent to any party other than the third party
identified in the suit, and such licenses and releases must be approved in
advance in writing by Seller.


 


(d)                                 Buyer shall have no
right to make any claim for damages accruing prior to the Effective Date.


 


(e)                                  Upon termination or
settlement of any suit brought under this Section 11.05, Buyer shall
immediately transfer back to Seller whatever interest that was previously
transferred from Seller to Buyer in any patent in anticipation of such suit.


 


(f)                                    Buyer shall bear
all its own expenses in connection with any action brought under this Section 11.05
and shall pay or reimburse Seller for any and all expenses incurred by Seller
as a result of any such action.  Neither
Seller nor any of its Related Companies shall be obligated to provide any
assistance to Buyer in connection with such action other than as specified in
this Section 11.05.


 


(g)                                 Buyer shall not use
Seller’s or any of its Related Companies’ names in connection with any press
release or public announcement or statement relating to any suit brought under
this Section 11.05 without Seller’s prior written consent.


 


(h)                                 Buyer shall be
responsible for any and all recording fees related to the assignment of any or
all patents, or any interest therein, from Seller to Buyer and from Buyer to
Seller pursuant to this Section 11.05. 
Seller and Buyer agree to execute all documents required for such
assignments.


 


11.06                 Transfer of
Intellectual Property.  In the event
that Seller determines to abandon, discontinue or otherwise terminate its
interest with respect to any Licensed Patent(s), Licensed Software and/or
Licensed Information (including in each case any applications, continuations or
extensions therefor), Seller shall so notify Buyer in writing prior to any such
action on Seller’s part.  Buyer shall
thereupon have the right, at its option (exercised by written


 





















 


notice to Seller
within 60 days after Buyer’s receipt of Seller’s notice), to elect to cause
Seller to assign any such Licensed Patent(s), Licensed Software and/or Licensed
Information to Buyer, without further consideration and on an “as-is, where-is,
with all faults” basis.  Buyer shall bear
any out-of-pocket expenses incurred in effecting any such assignment.


 


ARTICLE XII.

GENERAL PROVISIONS


 


12.01                 Consideration.  The
consideration for the transfers, assignments and grant of rights and licenses
under this Agreement by Seller to Buyer and by Buyer to Seller is provided in
this Agreement and the Purchase Agreement and no further payment of royalties
will be due under this Agreement.


 


12.02                 Agreement
Prevails.  This Agreement shall prevail in the event of any
conflicting terms or legends which may appear on the documents, the Licensed
Software, the Documentation or the Licensed Technical Information transferred
or licensed hereunder.


 


12.03                 Relationship
Between Parties.  Neither Party to this Agreement shall have the
power to bind the other by any guarantee or representation that it may give, or
to incur any debts or liabilities in the name of or on behalf of the other
Party.  The Parties acknowledge and agree
that nothing contained in this Agreement shall be deemed or construed to
constitute or create between the Parties hereto a partnership, association,
joint venture or other agency.


 


12.04                 Entire Agreement.  This
Agreement, the Purchase Agreement and Collateral Agreements set forth the
entire agreement and understanding between the Parties as to the subject matter
hereof and merge all prior discussions between them, and none of the Parties
shall be bound by any conditions, definitions, warranties, modifications,
understandings or representations with respect to such subject matter other
than as expressly provided herein or in the Purchase Agreement and Collateral
Agreements, or, subsequent to the Effective Date, in writing and signed by a
proper and duly authorized representative of the Party to be bound thereby.


 


12.05                 Headings.  Section and
subsection headings contained in this Agreement are inserted for
convenience of reference only, shall not be deemed to be a part of this
Agreement for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.


 


12.06                 Further Actions.  Each
Party agrees to execute, acknowledge and deliver such further instruments, and
to do all such other acts, as may be necessary or appropriate in order to carry
out the purposes and intent of this Agreement.


 


12.07                 Governing Law.  This
Agreement shall be governed by and construed and interpreted in accordance with
the laws of the State of New York, excluding the choice of law rules thereof.  Each Party irrevocably submits to the
non-exclusive jurisdiction of the state and federal courts situated in
Portland, Oregon, and Allentown, Pennsylvania for the purposes of any suit, action
or other proceeding arising out of this Agreement or any transaction
contemplated hereby.  Each Party
irrevocably and unconditionally waives (and agrees not to plead or claim), any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the transactions contemplated 


 





















 


hereby in the
jurisdictions set forth above or that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.


 


12.08                 Force Majeure.  Neither
Party shall lose any rights hereunder or be liable to the other Party for
damages or losses on account of failure of performance by the defaulting Party
if the failure is occasioned by government action, war, acts of terrorism,
fire, explosion, flood, strike, lockout, embargo, act of God, or other cause
beyond the reasonable control of the defaulting Party, provided that the Party
claiming force majeure has exerted commercially reasonable efforts to avoid or
remedy such force majeure.


 


12.09                 Waiver.  Except
as specifically provided for herein, the waiver from time to time by either of
the Parties of any of their rights or their failure to exercise any remedy
shall not operate or be construed as a continuing waiver of the same or of any
other of such Party’s rights or remedies provided in this Agreement.


 


12.10                 Severability.  If
any term, covenant or condition of this Agreement or the application thereof to
any Party or circumstances shall, to any extent, be held to be invalid or
unenforceable, then the remainder of this Agreement, or the application of such
term, covenant or condition to parties or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant or condition of this Agreement shall be valid and be
enforced to the fullest extent permitted by law.


 


12.11                 No Other Interest
in Products.  Except as otherwise agreed in this Agreement, in
the Purchase Agreement, or in a Collateral Agreement, Seller and Buyer shall
have no right or interest whatsoever in any product of the other Party whether
such product is conceived or developed by the other Party, during or after the
course of performance of this Agreement, the Purchase Agreement or any
Collateral Agreement.  Nothing in this
Agreement shall be construed to obligate Buyer or Seller to a specified level
of effort in its promotion and marketing of any product.


 


12.12                 Execution in
Counterparts.  This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


ARTICLE XIII.

NOTICES


 


13.01                 Until further
notice in writing, any notice or other communication hereunder shall be deemed
to be sufficiently given to the addressee and any delivery hereunder deemed
made when sent by certified mail to the addresses set out below.


 





















 


	
   

  	
  For TriQuint:

  	
   

  	
  TriQuint
  Semiconductor, Inc.

  
	
   

  	
   

  	
   

  	
  Attn: Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
  2300 NE
  Brookwood Parkway

  
	
   

  	
   

  	
   

  	
  Hillsboro, OR
  97124

  
	
   

  	
   

  	
   

  	
  Facsimile: (503)
  615-8900

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  With a copy to:

  	
   

  	
  Ater Wynne LLP

  
	
   

  	
   

  	
   

  	
  Attn: Douglas D.
  Morris

  
	
   

  	
   

  	
   

  	
  222 SW Columbia,
  Suite 1800

  
	
   

  	
   

  	
   

  	
  Portland, OR
  97201

  
	
   

  	
   

  	
   

  	
  Facsimile: (503)
  226-0079

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  For Buyer:

  	
   

  	
  CyOptics, Inc.

  
	
   

  	
   

  	
   

  	
  Attn: Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
  7360 Windsor
  Drive

  
	
   

  	
   

  	
   

  	
  Allentown, PA
  18108

  
	
   

  	
   

  	
   

  	
  Facsimile: (610)
  336-5861

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  With a copy to:

  	
   

  	
  Sonnenschein
  Nath & Rosenthal LLP

  
	
   

  	
   

  	
   

  	
  Attn: Michael R.
  Flynn

  
	
   

  	
   

  	
   

  	
  1221 Avenue of
  the Americas

  
	
   

  	
   

  	
   

  	
  New York, NY
  10020

  
	
   

  	
   

  	
   

  	
  Facsimile: (212)
  768-6800

  



 


[signature
page follows]


 





















 


IN WITNESS WHEREOF,
each of the Parties has caused this Agreement to be executed by its duly
authorized representative on the respective dates entered below.


 


	
   

  	
  TRIQUINT
  SEMICONDUCTOR, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephanie Welty

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Stephanie Welty

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President - Finance

  	
   

  
	
   

  	
   

  
	
   

  	
  Date: April 29,
  2005

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CYOPTICS,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ed Coringrato

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Ed Coringrato

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  President and CEO

  	
   

  
	
   

  	
   

  
	
   

  	
  Date: April 29,
  2005

  
									



 


THIS
AGREEMENT DOES NOT BIND OR OBLIGATE ANY PARTY

IN ANY MANNER UNLESS DULY EXECUTED BY
AUTHORIZED

REPRESENTATIVES OF ALL PARTIES


 





















 


EXHIBIT C


 


TRANSITION
SERVICES AGREEMENT


 


This Transition Services Agreement (this “Agreement”) is entered into as of April 29, 2005, between
TriQuint Semiconductor, Inc., a Delaware corporation (“TriQuint”), and CyOptics, Inc., a
Delaware corporation (“CyOptics”).


 


RECITALS


 


The parties desire to enter into this Agreement, pursuant to which
TriQuint and its Affiliates will provide certain services to CyOptics and its
Affiliates, in connection with the sale and transition of the Optoelectronics
Business as contemplated by the Asset Purchase Agreement between TriQuint and
CyOptics dated of even date (the “Asset
Purchase Agreement”). A capitalized term not defined in this
Agreement will have the meaning ascribed to it in the Asset Purchase Agreement.


 


The parties therefore agree:


 


AGREEMENT


 


1.                                      Services
To Be Provided


 


During the term of this Agreement, as and when requested by CyOptics,
TriQuint will provide or will instruct its Affiliates to provide, such services
as are listed on Schedule 1
attached hereto (the “Transition Services”),
and such additional services, if any, as the parties may agree upon in writing
(“Other Services” and,
collectively with the Transition Services, the “Services”). References to TriQuint in this Agreement will be
deemed to refer as appropriate to TriQuint and its Affiliates.


 


2.                                      Fees
for Services; Payments


 


2.1                               Fees


 


(a)                                  As
consideration for the Transition Services, CyOptics will pay to TriQuint the
amounts specified in Schedule 1
attached hereto (the “Transition Fee”).


 


(b)                                 For
Other Services, CyOptics will pay TriQuint a fee agreed to in writing by the
parties hereto prior to the provision of such Other Services.  If the Other Services are to be provided by
one or more employees of Seller who are Business Employees (who were not
offered or who did not accept employment with Buyer), then:  TriQuint will use commercially reasonable
efforts to maintain the continued employment of the particular Business
Employees as required by CyOptics, and (ii) the fee for such Other
Services will include the actual fully loaded cost of retaining the services of
the Business Employees performing the Other Services (including the cost of
salary and other compensation, benefits, taxes, insurance, and the like) during
the period required by CyOptics.


 





















 


2.2                               Payments


 


(a)                                  For
each calendar month in which Services are provided, TriQuint will submit to
CyOptics a reasonably detailed written statement of the amount of the
Transition Fee as well as the amount of the fee for Other Services provided, if
any, along with documentation evidencing in reasonable detail the calculation
of such fee for Other Services provided. The Transition Fee and the fee for
Other Services provided will be due and payable by CyOptics to TriQuint by wire
transfer of immediately available funds within five (5) Business Days
after such written statement is sent to CyOptics from TriQuint.


 


(b)                                 CyOptics
will have no right to set-off against any claims for payment of the Transition
Fee or of the fee for Other Services provided to be made by CyOptics pursuant
to this Agreement, any claims for payment of CyOptics resulting from the Asset
Purchase Agreement or any other agreement.


 


(c)                                  TriQuint
will have the right, at its option, to discontinue providing all Services if
full payment of fees for the Services is not received from CyOptics in a timely
manner. This provision will not apply, however, in case that CyOptics delivers
written notice to TriQuint that it in good faith disputes the provision of the
Services, their quality, or the amount it was billed for the respective
Services. In such case CyOptics and TriQuint will negotiate in good faith to
resolve such dispute and TriQuint will continue to render the respective Services,
provided CyOptics pays the amount which is not in dispute pending the
resolution of any such good faith dispute.


 


(d)                                 If
TriQuint discontinues Services for nonpayment pursuant to the provision above,
TriQuint will as promptly as reasonably practicable recommence such Services
upon full payment by CyOptics of the fees owed.


 


3.                                      Performance
of Services


 


(a)                                  TriQuint
will use commercially reasonable efforts to perform all Services hereunder in a
manner consistent with the provision thereof to the Optoelectronics business
unit immediately prior to the Closing; provided, however, that TriQuint will
not be obligated to hire additional employees, maintain the employment of any
particular employees, purchase, lease, or license any additional equipment or
software, or otherwise incur any material or extraordinary costs in connection
with its rendering of the Services.


 


(b)                                 TriQuint
and CyOptics agree to cooperate, to provide such information, and to take such
actions as may be reasonably required to assist in providing the Services.


 


(c)                                  Nothing
provided herein will require TriQuint to violate any agreement with a Third
Party, including any software license agreement. CyOptics will promptly provide
direction to TriQuint where business decisions are required in the performance
of Services by TriQuint. Where necessary for the performance of the Services,
CyOptics will designate TriQuint as its authorized agent.


 





















 


4.                                      Limitation
of Liability; Indemnification


 


TriQuint will not be liable to CyOptics for any liability, cost,
damage, expense, or loss, including, without limitation, any special, indirect,
or consequential damages (i) arising or allegedly arising out of TriQuint’s
actions or failures to act with respect to any Services provided under this
Agreement or (ii) as a result of CyOptics’s reliance on any action,
failure to act, advice, or data that TriQuint may provide or not provide
pursuant to this Agreement. However, the foregoing will not apply to the extent
that the liability, cost, damage, expense, or loss was caused by TriQuint’s
gross negligence or willful misconduct.


 


5.                                      Term
and Termination


 


The term of this Agreement will commence as of the date hereof and end
90 days after the Effective Date. 
However, CyOptics may terminate this Agreement at any time by written
notice to TriQuint.  The parties agree to
use their respective reasonable commercial efforts to cause the need for
Services to end as soon as commercially reasonable.  TriQuint will in good faith consider a
request made by CyOptics to TriQuint’s Chief Executive Officer to extend the
term of this Agreement for a reasonable period of time (not to exceed 30 days)
in the event that the need for the Services shall not have ended within the
term notwithstanding CyOptics’s reasonable diligence in that regard.


 


6.                                      Warranty


 


Unless otherwise provided for in this Agreement, TriQuint provide no
warranty, express or implied, with respect to the Services, including, without
limitation, a warranty for a particular level of service or for continued,
uninterrupted Services.


 


7.                                      Force
Majeure


 


Neither party will be liable to the other for failure or delay in the
performance of any of its obligations under this Agreement for the time and to
the extent such failure or delay is caused by force majeure such as, but not limited
to, riots, civil commotion, wars, strikes, freight embargo, shortage of supply,
lock-outs, hostilities between nations, governmental laws, orders or
regulations, actions by the government or any agency thereof, storms, fires,
sabotage, explosions, or any other contingencies beyond the reasonable control
of the respective party and its subcontractors. In such events, the affected
party will immediately inform the other party of such circumstances together
with documents of proof and the performance of obligations hereunder will be
suspending during, but not longer than, the period of existence of such cause
and the period reasonably required to perform the obligations in such cases.


 


8.                                      Confidentiality


 


The provisions of Article 6 of the Asset Purchase Agreement apply
to each party’s respective Proprietary Information that is made available to
the other party in the course of the transactions contemplated by this
Agreement.


 


[The rest of this page is
intentionally blank.]


 





















 


This Agreement is dated and effective as of the date set forth above.


 


	
  TRIQUINT
  SEMICONDUCTOR, INC.

  	
  CYOPTICS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Stephanie Welty

  	
   

  	
  By:

  	
  /s/ Ed Coringrato

  	
   

  
	
  Name:

  	
  Stephanie Welty

  	
   

  	
  Name:

  	
  Ed Coringrato

  	
   

  
	
  Title:

  	
  Vice President -
  Finance

  	
   

  	
  Title:

  	
  President and
  CEO

  	
   

  



 





















 


EXHIBIT D


 


THIS
SUBORDINATED UNSECURED PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS,
AND HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION
WITH, THE SALE OR DISTRIBUTION THEREOF. 
NO SUCH SALE OR DISTRIBUTION MAY BE MADE WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL OF CYOPTICS,
INC. THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED.


 


SUBORDINATED
UNSECURED PROMISSORY NOTE


 


	
  $4,000,000.00
  plus “Additional Principal Amount” (defined below)

  	
   

  	
  April 29,
  2005

  
	
   

  	
   

  	
  Allentown,
  Pennsylvania

  



 


FOR VALUE RECEIVED,
the undersigned, CyOptics, Inc., a Delaware corporation (the “Maker”), with principal offices at 7360
Windsor Drive, Allentown, Pennsylvania, 18106, hereby promises to pay to the
order of TriQuint Semiconductor, Inc. (the “Payee”), at 2300 NE Brookwood Parkway, Hillsboro, Oregon  97124, or at such other address as Payee may
from time to time designate in writing to Maker, or Payee’s assigns, in lawful
money of the United States of America, the principal sum of (x) Four Million
Dollars ($4,000,000.00) plus (y) the “Additional
Principal Amount” (computed in accordance with Section 2.3(b) of
the Purchase Agreement, defined below), together with interest on the
outstanding portion of such principal amount as set forth in Section 2(a) below.


 


This promissory note as amended, restated, supplemented or otherwise
modified from time to time (this “Note”)
is subordinated and unsecured and a Note under the Asset Purchase Agreement, by
and between Maker and Payee, of even date herewith (the “Purchase  Agreement”).  Additional rights and duties of Payee and
Maker are contained in the Purchase Agreement. 
Terms used herein, but not defined have the meanings assigned to them in
the Purchase Agreement.


 


Upon determination by Payee and Maker of the Additional Principal
Amount, the parties may restate this Note with a corrected principal amount
giving effect to such determination and removing the references to the “Additional
Principal Amount.”


 


1.                                      Definitions.


 


(a)                                  “Change in Control” shall mean (i) the close of a
transaction in which Maker is acquired by another entity by merger,
consolidation, share purchase, share exchange or other reorganization or any
transaction in which the holders of Maker’s voting capital stock immediately
prior to such transaction hold less than fifty percent (50%) of Maker’s voting
capital stock after the transaction; (ii) the close of a sale of more than
fifty percent (50%) the assets of Maker and (iii) the closing of an
initial public offering of Maker’s Common Stock pursuant to an effective
registration statement under the Securities Act of 1933, as amended.  Notwithstanding


 





















 


the foregoing, a
transaction shall not constitute a Change of Control if its sole purpose is to
change the state of Maker’s incorporation.


 


(b)                                  “Common Stock” shall mean the Common Stock
of CyOptics, Inc., $0.001 par value per share.


 


(c)                                  “Event of Default” has the meaning given in Section 5
hereof.


 


(d)                                  “Lien” shall mean, with respect to any
property, any security interest, mortgage, pledge, lien, claim, charge or other
encumbrance in, of, or on such property or the income therefrom, including,
without limitation, the interest of a vendor or lessor under a conditional sale
agreement, capital lease or other title retention agreement, or any agreement
to provide any of the foregoing, and the filing of any financing statement or
similar instrument under the Uniform Commercial Code or comparable law of any
jurisdiction.


 


(e)                                  “Maker” shall mean the corporation initially
executing this Note and any Person that shall succeed to or assume the
obligations of Maker under this Note by operation of law in accordance with the
terms herein.


 


(f)                                    “Material Adverse Effect” shall mean a
material adverse effect on (a) the business, assets, operations, prospects
or financial condition of Maker; (b) the ability of Maker to pay or
perform the Obligations in accordance with the terms of the Transaction
Documents or to avoid an Event of Default, or an event which, with the giving
of notice or the passage of time or both, would constitute an Event of Default,
under any Transaction Document; or (c) the rights and remedies of Payee or
its assigns under the Transaction Documents or any related document, instrument
or agreement.


 


(g)                                 “Maturity Date” shall mean the earlier of: (i) January 1
2012, and (ii) the occurrence of a Change in Control.


 


(h)                                 “Obligations” shall mean and include all
loans, advances, debts, liabilities and obligations, howsoever arising, owed by
Maker to Payee of every kind and description (whether or not evidenced by any
note or instrument and whether or not for the payment of money), now existing
or hereafter arising under or pursuant to the terms of the Transaction
Documents, including, all interest, fees, charges, expenses, attorneys’ fees
and costs and accountants’ fees and costs chargeable to and payable by Maker
hereunder and thereunder, in each case, whether direct or indirect, absolute or
contingent, due or to become due, and whether or not arising after the
commencement of a proceeding under Title 11 of the United States Code (11
U.S.C. Section 101 et seq.),
as amended from time to time (including post-petition interest) and whether or
not allowed or allowable as a claim in any such proceeding.


 


(i)                                    “Person” shall mean and include an
individual, a partnership, a corporation (including a business trust), a joint
stock company, a limited liability company, an unincorporated association, a
joint venture or other entity or a governmental authority.


 


(j)                                    “Senior Indebtedness” shall mean the
principal of and premium, if any, and interest on, and fees and charges with
respect to (i) (A) that certain revolving credit facility provided by
Silicon Valley Bank on the date hereof in the maximum amount of $5,000,000,


 





















 


(B) that
certain term loan provided by Silicon Valley Bank on the date hereof in the
maximum principal amount of $1,000,000, (C) that certain term loan
provided by ORIX Venture Finance LLC on the date hereof in the maximum
principal amount of $9,500,000 and (D) a revolving credit facility
provided by Comerica Bank on the date hereof in the maximum principal amount of
up to $9,500,000; together with deferrals, renewals, extensions and
refinancings of such indebtedness, (ii) any prior or future equipment
purchase arrangement or equipment lease financing arrangement and any future
draws on such financing arrangements for which the financing arrangement is
secured by the equipment, (iii) any other indebtedness of bank borrowings
with an original maturity date of less than one year, or (iv) any other
indebtedness of Maker which Maker and Payee may hereafter from time to time
expressly and specifically agree in writing shall constitute Senior
Indebtedness.


 


(k)                                “Subsidiary” shall mean (a) any
existing or future corporation of which more than 50% of the issued and
outstanding equity securities having ordinary voting power to elect a majority
of the Board of Directors of such corporation is at the time directly or
indirectly owned or controlled by Maker, or (b) any existing or future
partnership, limited liability company, joint venture, or other association of
which more than 50% of the interest having the power to vote, direct or
control the management of such partnership, limited liability company, joint
venture or other association is at the time directly or indirectly owned and
controlled by Maker or its affiliates, or (c) any other existing or future
entity included in the financial statements of Maker on a consolidated basis.


 


(l)                                    “Transaction Documents” shall mean this
Note, the Purchase Agreement, the Warrant issued or issuable under the Purchase
Agreement, and all exhibits and schedules to any of the foregoing agreements,
and all of the foregoing agreements as they may be amended from time to time.


 


2.                                      PAYMENTS.


 


(a)                                  General.  Payments due under this Note shall include
interest and principal.  The interest
rate shall be the lesser of (i) eight and one half percent (8.5%) and (ii) three
percent (3.0%), plus the one-year London Interbank Offered Rate as determined
on the date of this promissory note and redetermined on each subsequent
anniversary hereof (or business day most closely following that date if no rate
is published for that date), in each case per annum.  The initial payment shall be made April 1,
2007, thereafter payments shall be made on each January 1, April 1, July 1
and October 1 until the earlier of repayment in full or January 1,
2012.


 


(b)                                  Initial
Payment.  On April 1, 2007, the
following payment shall be due and payable: 
an amount equal to the sum of the accrued interest for the twenty-four
(24) month period commencing the date hereof and ending April 1, 2007 and
a quarterly installment determined by amortizing the total principal amount
hereunder over twenty (20) equal quarterly installments using the then
applicable interest rate.  The interest
rate for the accrued interest for the period commencing on the date hereof and
ending on April 1, 2006 shall be determined on the date hereof.  The interest rate for the accrued interest
for the period commencing on April 1, 2006 and ending on April 1,
2007 shall be determined on April 1, 2006. 
The interest rate to be


 





















 


used in the
amortization calculation for the payment due on April 1, 2007 shall be
determined on April 1, 2007.


 


(c)                                  Subsequent
Quarterly Payments.  For each
quarterly period commencing July 1, 2007 and ending January 1, 2012
the following payment shall be due and payable: an amount equal to the sum of
the accrued interest for the period commencing the date hereof and ending April 1,
2007 and a quarterly installment determined by amortizing the total principal
amount hereunder over twenty (20) equal quarterly installments using the then
applicable interest rate.  The rate of
interest to be used in the amortization calculation for subsequent quarterly
payments shall be redetermined on an annual basis on each anniversary hereof
and shall be applicable for the ensuing twelve (12) month period.


 


(d)                                  To
the extent applicable, on January 1, 2012, any remaining principal and
accrued interest shall become due in full.


 


For avoidance of
doubt, Schedule A
summarizes the scheduled payment dates for all payments due hereunder and
provides a sample calculation of amortized payments.


 


3.                                      PERMITTED
LIENS AND INDEBTEDNESS.  Maker shall
not incur, without the express written consent of Payee, any indebtedness for
money borrowed, excluding the Senior Indebtedness, unless such indebtedness by
its terms is expressly subordinated to the indebtedness evidenced
hereunder.  Additionally, no Liens shall
be permitted on any of Maker’s property or assets material to its business
without the express written consent of Payee, excluding Liens related to Senior
Indebtedness.


 


4.                                      PREPAYMENTS.  This Note including accrued but unpaid
interest may be prepaid, in whole or in part, at any time without premium or
penalty.


 


5.                                      DEFAULT.
 THE OCCURRENCE OF ANY OF THE
FOLLOWING SHALL CONSTITUTE AN “EVENT OF DEFAULT” HEREUNDER:


 


(a)                                  Failure
to Pay. Maker shall fail to pay when due (i) any principal or interest
payment on the date due hereunder or (ii) any other payment required under
the terms of this Note or any other Transaction Document, and such payment
shall not have been made within five days of Maker’s receipt of Payee’s written
notice to Maker of such failure to pay; or


 


(b)                                  Breaches
of Covenants. Maker or any of
its Subsidiaries shall fail to observe or perform any other material covenant,
obligation, condition or agreement contained in this Note or any Transaction
Document and (i) such failure shall continue for fifteen (15) days after
Maker’s receipt of Payee’s written notice to Maker specifying such failure, or (ii) if
such failure is not curable within such fifteen (15) day period, but is
reasonably capable of cure within thirty (30) days, either (A) such
failure shall continue for thirty (30) days after Maker knew or should have
reasonably known of such failure or (B) Maker or its Subsidiary shall not
have commenced a cure in a manner reasonably satisfactory to Payee within the
initial fifteen (15) day period; or


 


(c)                                  Representations
and Warranties. Any
representation, warranty, certificate, or other statement (financial or
otherwise) made or furnished by or on behalf of Maker to Payee


 





















 


in writing in
connection with any Transaction Document, or as an inducement to Payee to enter
into any Transaction Document, shall be false, incorrect, incomplete or
misleading in any material respect when made or furnished; or


 


(d)                                  Other
Payment Obligations. Any
indebtedness under any bonds, debentures, notes or other evidences of
indebtedness for money borrowed (or any guarantees thereof, excluding this Note
and the other Transaction Documents) by Maker or any of its Subsidiaries in an
aggregate principal amount in excess of $250,000 is not paid when due either at
its stated maturity or upon acceleration thereof, and such indebtedness is not
discharged, or such acceleration is not rescinded or annulled; or


 


(e)                                  Voluntary
Bankruptcy or Insolvency Proceedings. Maker
or any of its Subsidiaries shall (i) apply for or consent to the
appointment of a receiver, trustee, liquidator or custodian of itself or of all
or a substantial part of its property, (ii) be unable, or admit in writing
its inability, to pay its debts generally as they mature, (iii) make a
general assignment for the benefit of itself or any of its creditors, (iv) be
dissolved or liquidated, (v) become insolvent (as such term may be defined
or interpreted under any applicable statute), (vi) commence a voluntary
case or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or consent to any such relief or to the
appointment of or taking possession of its property by any official in an
involuntary case or other proceeding commenced against it, or (vii) take
any action for the purpose of effecting any of the foregoing; or


 


(f)                                    Involuntary
Bankruptcy or Insolvency Proceedings. Proceedings
for the appointment of a receiver, trustee, liquidator or custodian of Maker or
any of its Subsidiaries or of all or a substantial part of the property
thereof, or an involuntary case or other proceedings seeking liquidation,
reorganization or other relief with respect to Maker or any of its Subsidiaries
or the debts thereof under any bankruptcy, insolvency or other similar law now
or hereafter in effect shall be commenced and an order for relief entered or
such proceeding shall not be dismissed or discharged within sixty (60) days of
commencement; or


 


(g)                                 Judgments.
A final judgment or order for the payment of money in excess of $100,000 shall
be rendered against Maker or any of its Subsidiaries and the same shall remain
undischarged for a period of thirty (30) days during which execution shall not
be effectively stayed, or any judgment, writ, assessment, warrant of
attachment, or execution or similar process shall be issued or levied against a
substantial part of the property of Maker or any of its Subsidiaries; or


 


(h)                                 Transaction
Documents. Any Transaction Document or any material term thereof shall
cease to be, or be asserted by Maker not to be, a legal, valid and binding
obligation of Maker enforceable in accordance with its terms; or


 


(i)                                    Material
Adverse Effect. One or more conditions exist or events have occurred which
result in a Material Adverse Effect.


 


6.                                      REMEDIES
UPON DEFAULT.  If an Event of Default
shall occur, then and in any such event, in addition to all rights and remedies
of Payee under applicable law or otherwise, all


 





















 


such rights and
remedies being cumulative, not exclusive and enforceable alternatively,
successively and concurrently, Payee may, at its option, declare any or all
amounts owing under this Note to be due and payable, whereupon the then unpaid
balance hereof, together with all accrued and unpaid interest thereon, shall
forthwith become due and payable and the annual interest rate payable on this
Note shall be increased from the date of the Event of Default to twelve percent
(12%).


 


7.                                      COVENANTS.  FOR SO LONG AS ANY AMOUNT REMAINS
OUTSTANDING HEREUNDER, MAKER SHALL FURNISH TO PAYEE:


 


(a)                                  written
notice of the occurrence of any Event of Default promptly upon Maker becoming
aware of the occurrence of such Event of Default;


 


(b)                                  as
soon as available and in any event within sixty (60) days after the end of each
of the first three fiscal quarters of each fiscal year:


 


(i)                                     consolidated
balance sheets, statements of income and statements of cash flows of Payee and
its Subsidiaries for the period commencing at the end of the previous fiscal
quarter and ending with the end of such fiscal quarter; and


 


(ii)                                  consolidated
balance sheets, statements of income and statements of cash flows of Payee and
its Subsidiaries for the period commencing at the end of the previous fiscal
year and ending with the end of such fiscal quarter; and


 


(c)                                  as
soon as available and in any event within one hundred and fifty (150) days
after the end of each fiscal year, a copy of the annual audit report for such
year for Payee and its Subsidiaries, including consolidated balance sheets,
statements of income and statements of cash flows as of the end of such fiscal
year.


 


8.                                      SUBORDINATION


 


(a)                                  The
indebtedness evidenced by this Note, and the principal, interest and fees and
charges with respect hereto, are wholly subordinated, junior and subject in
right of payment, to the extent and in the manner hereinafter provided, to the
payment of all Senior Indebtedness and deferrals, renewals, extensions and refundings
of such Senior Indebtedness.  No
indebtedness of Maker, other than Senior Indebtedness, shall be senior in any
respect to the indebtedness evidenced by this Note.


 


(b)                                  The
provisions of this Section 8 are intended solely for the purposes of defining
the relative rights of the holders of this Note and the holders of Senior
Indebtedness.  Nothing in this Section 8
shall impair, as between Maker and Payee, the obligation of Maker, which is
unconditional and absolute, to pay to the holder of this Note the principal and
interest thereon, in accordance with the terms of this Note, nor shall anything
herein prevent Payee from exercising all remedies otherwise permitted by
applicable law upon default, subject to the rights set forth above of holders
of Senior Indebtedness to receive cash, property or securities otherwise
payable or deliverable to Payee.


 





















 


(c)                                  Upon
request by Maker, Payee shall execute and deliver a commercially reasonable
subordination agreement confirming the subordination of the indebtedness
evidenced by this Note to the Senior Indebtedness.


 


9.                                      AUTOMATIC
ACCELERATION.  THIS NOTE SHALL
ACCELERATE AND SHALL BE DUE AND PAYABLE IN FULL ON THE MATURITY DATE.


 


10.                               ATTORNEYS’
FEES.  In any proceeding to enforce
or concerning this Note, in addition to any other relief that the prevailing
party may be entitled to, the prevailing party shall be entitled to recover
their attorneys’ fees and costs incurred at the trial and appellate levels,
including, without limitation, any attorneys’ fees and costs incurred in
litigating the entitlement to and amount of such attorneys’ fees and costs.


 


11.                               NOTICE.  Maker hereby severally waives demand,
protest, presentment and notice of maturity, non-payment or protest and any and
all requirements necessary to hold Maker liable as an executor of this Note.


 


12.                               AMENDMENT
AND WAIVER.  Any provision of this
Note may be amended, waived or modified upon the written consent of Maker and
Payee.  The waiver by Payee of Maker’s
prompt and complete performance of, or default under, any provision of this
Note shall not operate nor be construed as a waiver of any subsequent breach or
default and the failure by Payee to exercise any right or remedy which it may
possess hereunder and shall not operate nor be construed as a bar to the
exercise of any such right or remedy upon the occurrence of any subsequent
breach or default.


 


13.                               GOVERNING
LAW.  This Note shall be governed by,
and construed in accordance with, the laws of the State of Delaware.


 


14.                               ASSIGNMENT
BY MAKER.  Neither this Note nor any
of the rights, interests or obligations hereunder may be assigned, by operation
of law or otherwise, in whole or in part, by Maker without the prior written
consent of Payee.  Payee may, upon written
notice to Maker, assign this Note and its rights, interests and obligations
hereunder by operation of law or otherwise to any Subsidiary or to any entity
in which the holders of Payee’s voting capital stock shall receive interests in
connection with a merger of Payee.


 


15.                               NOTICES.  All notices and other communications required
or permitted hereunder shall be in writing and shall be sent by facsimile or
carrier or other form of rapid communications, if possible, and if not, then
such notice or communication shall be mailed by first-class U.S. mail, postage
prepaid, addressed in each case to the party entitled thereto at the following
addresses:  (a) if to Maker, to
CyOptics, Inc., Attention: Chief Financial Officer, 7360 Windsor Drive,
Allentown, Pennsylvania, 18106 and
(b) if to Payee, TriQuint Semiconductor, Inc., Attention: Chief
Financial Officer, 2300 NE Brookwood Parkway, Hillsboro, Oregon  97124, or at such other address as one party
may furnish to the other in writing. 
Notice shall be deemed effective on the date dispatched if by personal
delivery, telecopy, telex or telegram; two (2) days after mailing if by
express mail; or three (3) days after mailing if by first-class mail.


 


16.                               PAYMENT.  Payment shall be made in lawful tender of the
United States.


 





















 


[The rest of this page is
intentionally blank.]


 





















 


IN WITNESS WHEREOF, the undersigned has executed this Note as of the
date first written above.


 


 


	
   

  	
  Maker:

  
	
   

  	
   

  
	
   

  	
  CYOPTICS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
  Ed Coringrato

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Ed Coringrato

  	
   

  
	
   

  	
  Title:

  	
   

  	
  President and
  CEO

  	
   

  
	
   

  	
   

  
	
  Acknowledged and
  Agreed by Payee:

  	
   

  
	
   

  	
   

  
	
  TRIQUINT
  SEMICONDUCTOR, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/

  	
  Stephanie Welty

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Stephanie Welty

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Vice President -
  Finance

  	
   

  	
   

  



 





















 


EXHIBIT E


 


EQUITY PURCHASE AGREEMENT


 


This EQUITY PURCHASE
AGREEMENT (this “Agreement”), dated as of April 29, 2005, is
entered into by and among TriQuint Semiconductor, Inc., a Delaware
corporation (“TriQuint”), TriQuint International Holding Co., a Delaware
corporation (“International”), TriQuint International Holding LLC, a
Delaware limited liability company (“Holding LLC”) (International and Holding LLC are sometimes collectively referred to
herein as “Sellers”), CyOptics, Inc., a Delaware corporation (“CyOptics”),
CyOptics International Holding Co., a Delaware corporation (“CyOptics Co.”),
CyOptics International Holding LLC, a Delaware limited liability company (“CyOptics
LLC”, and collectively with CyOptics Co, the “Buyers”) and
TriQuint de Mexico, S.R.L. DE C.V., a Sociedad de Responsabilidad Limitada de
Capital Variable organized under the laws of Mexico (the “Issuer”).  Capitalized terms not defined in this
Agreement have the meanings given them in the Asset Purchase Agreement, dated
the date herewith, between TriQuint and CyOptics (the “Master Purchase
Agreement”).


 


WHEREAS, pursuant to the Master Purchase
Agreement, TriQuint and its Subsidiaries, agreed to sell, transfer and assign
to CyOptics or a CyOptics Designee, and CyOptics or a CyOptics Designee agreed
to purchase from TriQuint and its Subsidiaries, the Purchased Assets
(including, without limitation, all of the Shares (as defined herein)), and
CyOptics or a CyOptics Designee agreed to assume, the Assumed Liabilities, in
each case as more fully described and upon the terms and subject to the
conditions set forth in the Master Purchase Agreement;


 


WHEREAS, TriQuint and CyOptics have determined
that it is in the best interest of the parties for Buyers to purchase all of
the issued and outstanding equity participation rights of the Issuer;


 


WHEREAS, TriQuint is the sole stockholder of
International and the sole member of Holding LLC, and Sellers are the owners of
all of the Shares, as more specifically described below; and


 


WHEREAS, Sellers desire to sell and Buyers
desire to purchase all of the Shares, upon the terms and subject to the
conditions set forth herein;


 


NOW, THEREFORE, in consideration of the promises and of
the mutual covenants contained herein and in the Master Purchase Agreement, the
parties hereto agree as follows:


 


1.                                       Purchase and Sale of Shares. 
For good and valuable consideration, the sufficiency of which Sellers
hereby specifically affirm, and subject to the terms and conditions contained
in this Agreement and the Master Purchase Agreement, Sellers hereby agree to
sell and Buyers hereby agree to purchase the Shares, at the Closing.


 


2.                                       Representations and Warranties.


 


2.1                                 Representations and Warranties of
TriQuint.  In addition to and without limiting any of
TriQuint’s representations and warranties in the Master Purchase Agreement,
Sellers, jointly and severally, hereby represent and warrant to Buyers that:


 





















 


(a)                                  TriQuint is the sole stockholder of
International and the sole member of Holding LLC;


 


(b)                                 the equity interests of Issuer consist of
“partes sociales” or equity participation rights, of which (i) International
is the record and beneficial owner of one equity participation right
representing a 99.96% equity interest in the Issuer (the “International
Share”) and (ii) Holding LLC is the record and beneficial owner of one
equity participation right representing a 0.04% equity interest in the Issuer
(the “Holding Share”) (the “International Share,” together with
the Holding Share, are sometimes collectively referred to in this Agreement as
the “Shares”);


 


(c)                                  the Shares (i) represent all of the
issued and outstanding equity participation rights or other forms of capital
stock of the Issuer, and (ii) are duly authorized, validly issued,
fully-paid and non-assessable and free and clear of any and all Encumbrances;


 


(d)                                 there are no outstanding options,
warrants or rights to purchase or acquire (including, without limitation,
rights of first refusal, conversion and preemptive rights), or agreements
relating to, the Shares, except as provided in this Agreement;


 


(e)                                  the Shares have been offered and sold in
compliance with all applicable securities laws;


 


(f)                                    at Closing, Buyers will acquire good and
marketable title to and complete ownership (both record and beneficial) of the
Shares, free and clear of any Encumbrances, except for Permitted Encumbrances;


 


(g)                                 neither the execution and delivery of
this Agreement by the Sellers, nor the consummation or performance of any of
the transactions contemplated by this Agreement by the Sellers will, directly
or indirectly (with or without notice or lapse of time):


 


(i)                                     cause the Shares to be reassessed or
revalued by any taxing authority or other Governmental Body; or


 


(ii)                                  result in the imposition or creation of
any Encumbrance other than a Permitted Encumbrance upon or with respect to the
Issuer or the Shares; and


 


(h)                                 the balance sheet of Issuer attached as Exhibit A
to this Agreement (the “Balance Sheet”) is accurate and complete in all
material respects, and presents fairly the assets and liabilities of the
Issuer.  Except as set forth in the
Balance Sheet, (i) the Issuer has no material liabilities, contingent or
otherwise and (ii) the Issuer has no receivables from, or payables to,
TriQuint or any of its Subsidiaries or Affiliates.


 


2.2                                 Additional Representations and Warranties. 
Sellers and the Issuer, jointly and severally, further represent and
warrant to Buyers that:


 


(a)                                  The Issuer (i) is a Sociedad de
Responsabilidad Limitada de Capital Variable duly organized and validly
existing under the laws of the jurisdiction of its organization, (ii) has
the requisite power and authority to own and operate its properties and 


 





















 


assets and to transact
its business, and (iii) has no subsidiaries or investments in any Person;


 


(b)                                 (i) International (A) is a
Delaware corporation duly incorporated, validly existing and in good standing
under the laws of the State of Delaware, and (B) has the requisite power
and authority to own and operate its properties and assets and to transact its
business, and (ii) Holding LLC (A) is a Delaware limited liability
company duly formed, validly existing and in good standing under the laws of
the State of Delaware, and (B) has the requisite power and authority to
own and operate its properties and assets and to transact its business;


 


(c)                                  International is the record and
beneficial owner of the International Share and Holding LLC is the record and
beneficial owner of the Holding Share;


 


(d)                                 the Shares are duly authorized, validly
issued, fully-paid and non-assessable and free and clear of any and all
Encumbrances of any kind and there are no outstanding options, warrants or
rights to purchase or acquire (including, without limitation, rights of first
refusal, conversion and preemptive rights), or agreements relating to, the
Shares, except as provided in this Agreement;


 


(e)                                  the Shares have been offered and sold in
compliance with all applicable securities laws, and the transfer to Buyers of
the Shares on the terms set forth herein shall be in compliance with all
applicable securities laws;


 


(f)                                    there are no subscriptions, options,
warrants, calls or other rights, agreements or commitments outstanding that
obligate the Issuer to offer, issue, deliver, sell or otherwise cause to become
outstanding any of its equity participation rights or other forms of its
capital stock or debt securities, or that obligate the Issuer to grant, extend
or enter into any such option, warrant, call or other such right, agreement or
commitment.  There are no outstanding or
authorized stock appreciation, stock option, phantom stock, profit
participation or similar rights with respect to the Issuer.  As of the date of this Agreement, there are
no issued or outstanding bonds, debentures, notes or other evidences of
indebtedness having a right to vote on any matters on which the Issuer’s equity
participation rights holders or shareholders may vote or which may, at the
option of the holder or otherwise, be converted into equity participation
rights or shares of the Issuer’s capital stock;


 


(g)                                 neither the execution and delivery of
this Agreement by Issuer nor the consummation or performance of any of the
transactions contemplated by this Agreement by Issuer will, directly or
indirectly (with or without notice or lapse of time):


 


(i)                                     cause the Shares or Issuer to be
reassessed or revalued by any taxing authority or other Governmental Body;


 


(ii)                                  result in the imposition or creation of
any Encumbrance, other than a Permitted Encumbrance upon or with respect to the
Issuer or the Shares;


 


(h)                                 Issuer has made, when due, all payments
required to be made under any applicable Laws or pursuant to the collective
bargaining agreement between Issuer and the Confederacion de Trabajadores de
Mexico, including, without limitation, all Employee Benefits Obligations.  There is no suit, action or proceeding
pending or, to Sellers’ and Issuer’s 


 





















 


knowledge, threatened by
any Person or Governmental Body in law or in equity relating to any failure by
Issuer to pay any Employee Benefit Obligation; and


 


(i)                                     the Balance Sheet is accurate and
complete in all material respects, and presents fairly the assets and
liabilities of the Issuer.  Except as set
forth in the Balance Sheet, (i) the Issuer has no material liabilities,
contingent or otherwise and (ii) the Issuer has no receivables from, or
payables to, TriQuint or any of its Subsidiaries or Affiliates.


 


3.                                       Closing.  At the
Closing:


 


(a)                                  Sellers shall (i) hold a
shareholders’ meeting to approve transfer of the Shares and (ii) deliver
to Buyers a certificate of the Secretary of the Issuer certifying that the
Shares have been duly recorded in the stock or equity participation rights
registry book of the Issuer in the name of the Buyers;


 


(b)                                 Issuer shall deliver to the Buyers
copies, certified by the Secretary of the Issuer, of the Issuer’s estatutos
sociales, as amended to the Closing Date;


 


(c)                                  Issuer shall cause Baker McKenzie,
counsel to the Issuer, to deliver an opinion to Buyers substantially in the Form of
Exhibit B;


 


(d)                                 Sellers shall deliver to Buyers all
Required Consents required to be obtained to effect the transactions
contemplated hereby;


 


(e)                                  Issuer shall deliver to the Buyers
evidence reasonably satisfactory to Buyers that all officers and directors of
the Issuer, immediately prior to the Closing, have submitted their written
resignations; and


 


(f)                                    Issuer and Sellers shall each deliver to
Buyer an officer’s certificates certifying as to the incumbency of its
officers, and the approvals of its directors and stockholder, members, or
partners, as applicable.


 


4.                                       Conditions of Closing.


 


The obligations of Buyers
to effect the Closing of the transaction contemplated hereby are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions,
any of which may be waived in writing by Buyers:


 


(a)                                  Representations and Warranties of Sellers
and Issuer True and Correct at Closing.  The
representations and warranties of Sellers and Issuer contained in this
Agreement and in the Master Purchase Agreement or in any Schedule, certificate
or document delivered pursuant to the provisions hereof and thereof or in
connection with the transactions contemplated hereby and thereby shall be true
and correct (without regard to any qualifications therein as to materiality or
material adverse effect) at and as of the Closing Date as though such
representations and warranties were made at and as of the Closing Date; provided,
that this condition shall be deemed satisfied unless the failure of any such
representation and warranty to be true and correct, individually or in the
aggregate, at and as of the Closing Date has not had and could not reasonably
be expected to have a material adverse effect on the Optoelectronics 


 





















 


Business or the Issuer’s
business taken as a whole, or on Sellers’ or Issuer’s ability to consummate the
transactions under this Agreement, the Master Purchase Agreement or any of the
Collateral Agreements.


 


(b)                                 Closing of Master Purchase Agreement. 
All conditions precedent to the Closing of the Master Purchase Agreement
shall have been performed in all material respects and the transactions
contemplated by the Master Purchase Agreement shall have closed.


 


(c)                                  Performance by Sellers. 
Sellers and/or Issuer shall have performed in all material respects all
obligations and agreements and complied in all material respects with all
covenants required by this Agreement and by the Master Services Agreement to be
performed or complied with by it prior to or at the Closing, including
executing the Collateral Agreements.


 


5.                                       Indemnity.


 


5.1                                 Notwithstanding anything to the contrary
in Section 9.3 of the Master Purchase Agreement, the representations and
warranties of TriQuint, Sellers and Issuer contained in this Agreement shall
survive Closing solely for purposes of this Article 5 and such
representations and warranties shall terminate at the close of business on the
date that is 12 months after the Closing Date.


 


5.2                                 The indemnity obligations of TriQuint set
forth in Section 9.3 of the Master Purchase Agreement shall apply in the
event of any Loss incurred or suffered by CyOptics or the Buyers to the extent
that the Loss arises by reason of, or results from (i) any breach or any
failure of any representation or warranty of Sellers or Issuer contained in
this Agreement, or contained in the Master Purchase Agreement insofar as such
representations or warranties relate to the Issuer or the business carried on
by the Issuer; or (ii) the breach by Seller or Issuer of any covenant or
agreement of such party contained in this Agreement, or the Master Purchase
Agreement insofar as such covenant or agreement relates to the Issuer or the
business carried on by the Issuer; provided, however, that
notwithstanding Section 9.3(f) of the Master Purchase Agreement,
TriQuint shall have no liability for claims under this Section 5 until the
aggregate amount of the Losses incurred with respect to this Section 5
shall exceed USD$200,000, in which case TriQuint shall be liable only for the
portion of the Loss exceeding USD$200,000 and provided further that TriQuint’s
aggregate liability for all claims arising under this Section 5 together
with all claims arising under Section 9 of the Master Purchase Agreement
shall not exceed USD$3,000,000.


 


6.                                       Notices.  Notices
and/or communications required and/or permitted by this Agreement shall be sent
in the manner provided for in the Master Purchase Agreement.


 


7.                                       Amendments.  Any provision
of this Agreement may be amended only by a written instrument duly executed on
behalf of each party by its duly authorized officer or employee.


 


8.                                       Governing Law; Jurisdiction. 
This Agreement shall be governed by and construed in accordance with the
laws of the United Mexican States.  In
connection with any action or proceeding arising out of this Agreement, each of
the parties hereto submits to the jurisdiction of the courts sitting in Mexico
City, United Mexican States, hereby waiving any other forum to which they might
be entitled on account of place of residence, domicile or otherwise.


 





















 


9.                                       Counterparts. 
This Agreement and any amendments hereto may be executed in several
counterparts, each of which shall be considered to be an original, but all of
which together shall constitute the same instrument.


 


10.                                 Effect of Headings. 
The section headings herein are for convenience only and shall not
affect the meaning or interpretation of this Agreement.


 





















 


IN WITNESS WHEREOF, the
parties have executed this Equity Purchase Agreement as of the date set forth
above.


 


	
   

  	
  TRIQUINT SEMICONDUCTOR, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  

  	
  Stephanie
  Welty

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Stephanie
  Welty

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice
  President, Finance

  	
   

  
	
   

  	
   

  
	
   

  	
  TRIQUINT INTERNATIONAL HOLDING CO.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 

  	
  Stephanie
  Welty

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Stephanie
  Welty

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice
  President, Finance

  	
   

  
	
   

  	
   

  
	
   

  	
  TRIQUINT INTERNATIONAL HOLDING LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 

  	
  Stephanie
  Welty

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Stephanie
  Welty

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice
  President, Finance

  	
   

  
	
   

  	
   

  
	
   

  	
  CYOPTICS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 

  	
  Ed Coringrato

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Ed Coringrato

  	
   

  
	
   

  	
  Title:

  	
   

  	
  President and CEO

  	
   

  
	
   

  	
   

  
	
   

  	
  CYOPTICS INTERNATIONAL HOLDING CO.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 

  	
  Ed Coringrato

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Ed Coringrato

  	
   

  
	
   

  	
  Title:

  	
   

  	
  President

  	
   

  
											



 





















 


	
   

  	
  CYOPTICS INTERNATIONAL HOLDING LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 

  	
  Ed
  Coringrato

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Ed
  Coringrato

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Authorized
  Signatory

  	
   

  
	
   

  	
   

  
	
   

  	
  TRIQUINT
  DE MEXICO, S.R.L. DE C.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 

  	
  Stephanie Welty

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Stephanie Welty

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President, Finance

  	
   

  
								



 





















 


Exhibit F


 


DEPOSIT
AGREEMENT


 


This Deposit Agreement
(this “Agreement”) is dated as of April 14,
2005 by and among TriQuint Semiconductor, Inc., a Delaware corporation (“Seller”), CyOptics, Inc., a Delaware corporation (“Buyer”), and Ater Wynne LLP, an Oregon limited liability
partnership (“Deposit Holder”).  Capitalized terms used but not otherwise
defined herein shall have the meanings set forth in the Purchase Agreement (as
defined below).


 


RECITALS


 


A.                                   Seller and Buyer are parties to that
certain Asset Purchase Agreement (the “Purchase Agreement”),
of even date herewith, pursuant to which Seller agreed to sell, and Buyer
agreed to purchase, certain assets of Seller, upon the terms and subject to the
conditions set forth in the Purchase Agreement.


 


B.                                     Buyer has deposited Five Hundred Thousand
Dollars ($500,000) (the “Deposit Amount”)
with the Deposit Holder.  Pursuant to Section 5.9(a) of
the Purchase Agreement, the Deposit Holder is to hold the Deposit Amount in a
client trust account until paid pursuant to the terms and subject to the
conditions of this Agreement.


 


C.                                     The Deposit Holder is willing to act upon
the terms and subject to the conditions of this Agreement.


 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the foregoing and other good and valuable consideration, the
parties hereby agree as follows:


 


1.                                      Deposit of Deposit Amount.


 


The parties acknowledge
delivery by Buyer to the Deposit Holder of the Deposit Amount, pursuant to Section 5.9(a) of
the Purchase Agreement.  The Deposit Holder
shall hold and distribute the Deposit Amount in accordance with the terms of
this Agreement.  The Deposit Amount is
non-refundable and will only be distributed pursuant to the terms of this
Agreement.


 


2.                                      Instructions Regarding the
Deposit Amount.


 


The following procedures
shall govern the application of the Deposit Amount:


 


2.1                               At Closing.  If Closing occurs, at the Closing, Seller and
Buyer shall deliver to the Deposit Holder a written certificate instructing the
Deposit Holder to distribute the Deposit Amount to Seller (as part of the cash
portion of the Purchase Price).


 


2.2                               Upon
Termination of the Purchase Agreement.


 


(a)                                  If Seller
delivers to the Deposit Holder a certificate (with a copy to Buyer) in which
Seller claims (A) that the Purchase Agreement has been terminated prior to
the Closing 


 





















 


(for
any reason other than by Buyer as described in Section 11.1(b) of the
Purchase Agreement (except due to non-satisfaction of the condition set forth
in Section 8.1(e) of the Purchase Agreement)) and (B) that
Seller has provided notice of such claim to Buyer, then the Deposit Holder
shall disburse to Seller the Deposit Amount and all accrued interest thereon,
if any, in accordance with such certificate on the twentieth (20th) calendar
day following the date such certificate is received by the Deposit Holder; provided, however, that
no such payment shall be made if the Deposit Holder receives from Buyer, within
such twenty (20) calendar day period, a certificate pursuant to which Buyer
objects to such claim, which certificate shall set forth in reasonable detail
the basis for Buyer’s objection.  If the
Deposit Holder receives such a certificate from Buyer within such twenty (20)
calendar day period, then the Deposit Holder shall, without evaluating the completeness
or reasonableness of the reasons for objection, hold the Deposit Amount until
receipt of (x) notice of a judgment pursuant to Section 2.2(d) below,
or (y) joint notification pursuant to Section 2.2(e) below.


 


(b)                                 If Buyer
delivers to the Deposit Holder a certificate (with a copy to Seller) in which
Buyer claims (A) that the Purchase Agreement has been terminated prior to
the Closing (pursuant to Section 11.1(b) of the Purchase Agreement
(except due to non-satisfaction of the condition set forth in Section 8.1(e) of
the Purchase Agreement)) and (B) that Buyer has provided notice of such
claim to Seller, then the Deposit Holder shall disburse to Buyer the Deposit
Amount in accordance with such certificate on the twentieth (20th) calendar day
following the date such certificate is received by the Deposit Holder; provided, however, that
no such payment shall be made if the Deposit Holder receives from Seller,
within such twenty (20) calendar day period, a certificate pursuant to which
Seller objects to such claim, which certificate shall set forth in reasonable
detail the basis for Seller’s objection. 
If the Deposit Holder receives such a certificate from Seller within
such twenty (20) calendar day period, then the Deposit Holder shall, without
evaluating the completeness or reasonableness of the reasons for objection,
hold the Deposit Amount until receipt of (x) notice of a judgment pursuant to Section 2.2(d) below,
or (y) joint notification pursuant to Section 2.2(e) below.


 


(c)                                  Buyer and
Seller shall not give instructions to the Deposit Holder that are inconsistent
with this Agreement.


 


(d)                                 If a court of
competent jurisdiction awards a judgment relating to the disbursement of the
Deposit Amount which is not subject to further appeal, then Buyer or Seller may
deliver to the Deposit Holder a written certificate instructing the Deposit
Holder to deliver to Seller or Buyer, as applicable, the Deposit Amount.  Such certificate shall be accompanied by a
true, correct and complete copy of the order or other evidence of judgment,
certified by the clerk of the court.  The
Deposit Holder shall deliver the Deposit Amount to Seller or Buyer, as
applicable, on the tenth (10th) Business Day after it receives such
certificate.


 


(e)                                  If Seller and
Buyer mutually agree to settle a claim for the disbursement of the Deposit
Amount, then Seller and Buyer shall deliver to the Deposit Holder a written
certificate instructing the Deposit Holder to deliver to the specified party or
parties, the amount of Deposit Amount as mutually agreed upon by Seller and
Buyer.  Such certificate shall state the
amount of Deposit Amount that the Deposit Holder shall deliver to each
specified party and the date upon which such delivery shall be made.  The Deposit Holder shall deliver the stated
amount of Deposit Amount to the specified party or parties, in accordance with
such certificate.


 





















 


Distribution
of Interest. 
Notwithstanding anything to the contrary contained herein, any interest
earned on the Deposit Amount shall be held by the Deposit Holder in accordance
with the terms of this Agreement and distributed to Seller contemporaneously
with the distribution by the Deposit Holder of the Deposit Amount.


 


3.                                      Duties of Deposit Holder.


 


3.1                               The duties,
responsibilities and obligations of the Deposit Holder shall be limited to
those expressly set forth herein and no duties, responsibilities or obligations
shall be inferred or implied.  The
Deposit Holder’s duties are as a depository only, and the Deposit Holder shall
incur no liability whatsoever, except for its gross negligence or willful
misconduct.  The Deposit Holder may
consult with counsel of its choice, and shall not be liable for any action
taken, suffered or omitted to be taken by it in good faith in accordance with
the advice of such counsel (except for its gross negligence or willful
misconduct).  Except as expressly
provided in this Agreement, the Deposit Holder shall not be bound in any way by
any of the terms of the Purchase Agreement or any other agreement to which
Buyer and Seller are parties, whether or not the Deposit Holder has knowledge
thereof, and the Deposit Holder shall not in any way be required to determine
whether or not the Purchase Agreement or any other agreement has been complied
with by Buyer or Seller or any other party thereto.


 


3.2                               Notwithstanding
its duties as Deposit Holder hereunder, all parties are aware that the Deposit
Holder acts as counsel for Seller and, accordingly, all parties agree that its
services as Deposit Holder hereunder shall not restrict or inhibit the Deposit
Holder in any way from representing Seller in any action, dispute, controversy,
arbitration, suit or negotiation arising under this Agreement, the Purchase
Agreement or the other Collateral Agreements.


 


4.                                      Reliance by Deposit Holder
on Instructions.


 


The Deposit Holder may
conclusively rely and shall be fully authorized and protected in relying upon
any written notice, demand, certificate or document which it, in good faith,
believes to be genuine.  The Deposit Holder
shall not be responsible in any respect for the form, execution, validity,
value or genuineness of documents or securities deposited hereunder, or for any
description therein, or for the identity, authority or rights of persons
executing or delivering or purporting to execute or deliver any such document,
security or endorsement.  The Deposit
Holder may rely on and shall be authorized and protected in acting or failing
to act in accordance with this Agreement upon the written, facsimile, or electronically
delivered instructions that it believes to be genuine, with respect to any
matter relating to the Deposit Holder acting as Deposit Holder, of any persons
acting or purporting to act on Seller’s or Buyer’s behalf.


 


5.                                      Risk to Deposit Holder.


 


None of the provisions of
this Agreement shall require the Deposit Holder to expend or risk its own funds
or otherwise to incur any liability, financial or otherwise, in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers if it shall have reasonable grounds for believing that repayment of such
funds or indemnity satisfactory to it against such risk or liability is not
assured to it.  None of the provisions of
this Agreement shall 


 





















 


impose upon the
Deposit Holder any liability for not performing any act or fulfilling any duty,
obligation or responsibility hereunder by reason of any occurrence beyond the
control of the Deposit Holder (including but not limited to any act or
provision of any present or future law or regulation or governmental authority,
any act of God or war, or the unavailability of the Federal Reserve Bank wire
or facsimile or other wire or communication facility).


 


6.                                      Legal Proceedings.


 


The Deposit Holder shall
not be required to institute legal proceedings of any kind.  If at any time the Deposit Holder is served
with any judicial or administrative order, judgment, decree, writ or other form
of judicial or administrative process which in any way affects the Deposit
Amount (including but not limited to orders of attachment or garnishment or
other forms of levies or injunctions or stays relating to the transfer of the
Deposit Amount), the Deposit Holder is authorized to comply therewith in any
manner it or legal counsel of its own choosing deems appropriate; and if the
Deposit Holder complies with any such judicial or administrative order,
judgment, decree, writ or other form of judicial or administrative process, the
Deposit Holder shall not be liable to any of the parties hereto or to any other
person or entity even though such order, judgment, decree, writ or process may
be subsequently modified or vacated or otherwise determined to have been
without legal force or effect.


 


7.                                      Indemnification of the
Deposit Holder.


 


Buyer and Seller, jointly
and severally, agree to indemnify and hold the Deposit Holder harmless from and
against any and all losses, claims, damages, liabilities and expenses,
including, without limitation, reasonable costs of investigation and reasonable
counsel fees and expenses, which may be imposed on the Deposit Holder or
incurred by it in connection with its acceptance of this appointment as Deposit
Holder hereunder or the performance of its duties hereunder, except as a result
of Deposit Holder’s gross negligence or willful misconduct.  Such indemnity includes, without limitation,
all losses, damages, liabilities and expenses (including reasonable counsel
fees and expenses) incurred in connection with any litigation (whether at the
trial or appellate levels) arising from this Agreement or involving the subject
matter hereof.  The indemnification
provisions contained in this Section are in addition to any other rights
any of the indemnified parties may have by law or otherwise and shall survive
the termination of this Agreement or the resignation or removal of Deposit Holder.  It being agreed that Buyer and Seller shall
each be responsible for only one-half of any indemnity payments due Deposit
Holder hereunder.


 


8.                                      Termination of Agreement.


 


Upon disbursement by the
Deposit Holder of all of the Deposit Amount pursuant to the terms of this
Agreement, this Agreement shall terminate, provided that the provisions of Section 7
hereof shall survive such termination.


 


9.                                      Miscellaneous.


 


The provisions of Article 10
of the Purchase Agreement (other than Section 10.9) shall apply to this
Agreement as though such provisions were set forth herein in full.


 





















 


The existence or
termination of this Agreement shall not affect any rights or obligations of the
parties under the Purchase Agreement, or any of the other Collateral
Agreements.


 


[The rest of this page is
intentionally blank.]


 





















 


IN WITNESS WHEREOF, each
party has caused this Agreement to be duly executed on its behalf by its duly
authorized officer as of the date first written above.


 


	
  Seller:

  	
  Buyer:

  
	
   

  	
   

  
	
  TRIQUINT SEMICONDUCTOR, INC.

  	
  CYOPTICS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ 

  	
  Raymond A.
  Link

  	
   

  	
  By:

  	
  /s/ 

  	
  Ed Coringrato

  	
   

  
	
  Name:

  	
   

  	
  Raymond A.
  Link

  	
   

  	
  Name:

  	
   

  	
  Ed
  Coringrato

  	
   

  
	
  Title:

  	
   

  	
  Vice-President
  and CFO

  	
   

  	
  Title:

  	
   

  	
  President
  and CEO

  	
   

  
	
   

  	
   

  
	
  Deposit Holder:

  	
   

  
	
   

  	
   

  
	
  ATER WYNNE LLP

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ 

  	
  Mike Shackelford

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Mike
  Shackelford

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Managing
  Partner

  	
   

  	
   

  



 





















 


	
  

  	
  Suite 1800

  
	
  222 S.W.
  Columbia

  
	
  Portland,
  OR  97201-6618

  
	
   

  	
  503-226-1191

  
	
   

  	
  Fax 503-226-0079

  
	
   

  	
  www.aterwynne.com

  



 


EXHIBIT G


 


April 29, 2005


 


CyOptics, Inc.


7360
Windsor Drive


Allentown,
PA 18106


 


Re:                               TriQuint Semiconductor, Inc.


 


Dear Ladies and Gentlemen:


 


We have acted as counsel
to TriQuint Semiconductor, Inc., a Delaware corporation (“Seller”), in
connection with certain of the transactions contemplated by that certain Asset
Purchase Agreement dated April 29, 2005 (the “Agreement”), by and between
Seller and CyOptics, Inc. (“Buyer”). 
This opinion is rendered pursuant to Section 7.1(d) of the
Agreement.  Capitalized terms used herein
but not otherwise defined shall have the meanings given to such terms in the
Agreement.


 


We have examined
originals or copies of the Agreement, the Intellectual Property Agreement, the
Transition Services Agreement, the Equity Purchase Agreement, the Lease
Assignments, and the Assignment and Assumption Agreement and Bill of Sale
(collectively, the “Transaction Documents”). 
We have also examined originals or copies of records, other agreements,
instruments and documents and have made such other investigation as we have
deemed relevant or necessary as a basis for the opinions expressed herein.  We have assumed without investigation the
genuineness of all signatures, the authenticity of all documents submitted to
us as originals and the conformity to original documents of all documents
submitted to us as copies.  As to various
questions of fact relevant to this opinion, we have relied, without
investigation, on certificates of public officials and statements or
certificates of officers or representatives of Seller.


 


We have also assumed that
(i) the parties to the Transaction Documents other than Seller have the
power, authority and capacity to enter into and perform their obligations under
the Transaction Documents, (ii) the Transaction Documents have been duly
authorized, executed and delivered by, are valid and binding upon, and are
enforceable in accordance with their terms against, such parties, (iii) the
execution, delivery and performance of the Transaction Documents will not
violate the organizational documents of such parties or any Law applicable to
or binding upon such parties, and (iv) such parties have obtained, all
consents, permits and approvals required to be obtained by such parties by or
from all Governmental Bodies in connection with the transactions contemplated
by the Transaction Documents, and such consents, permits and approvals are in
full force and effect.  We have further
assumed that the representations and warranties made by Buyer in the
Transaction Documents are true and correct and that, as to factual matters, the
representations and warranties made by Seller in the Transaction Documents 


 


M E N L
O   P A R K                                     P
O R T L A N D                                                  S
E A T T L E


 





















 


are true and
correct unless we have knowledge that such representations and warranties are
not true and correct.


 


We are members of the
Oregon State Bar.  Our opinions expressed
herein are limited to the laws of the State of Oregon, the Delaware General
Corporation Law and the federal laws of the United States, and we do not
express any opinion herein concerning the laws of any other jurisdiction.  We note that the Transaction Documents state
that such agreements are governed by the laws of the states of Delaware or New
York.  For purposes of this opinion we
have, with your permission, assumed such agreements are governed by the laws of
the State of Oregon.


 


As used in this opinion,
the expressions “knowledge,” “to our knowledge,” or other similar phrases,
mean, as to matters of fact, that based upon the current actual knowledge of
the individuals in this firm who have performed legal services for Seller, we
find no reason to believe that the opinions expressed are factually incorrect;
but beyond that we have made no factual investigation for the purposes of
rendering this opinion.


 


Based on the foregoing,
and subject to the limitations set forth above and below, we are of the opinion
that:


 


1.                                       Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware.  Seller has all requisite
corporate power and authority to execute and deliver the Transaction Documents
to which it is a party and to perform its obligations thereunder.


 


2.                                       Except as disclosed in the Transaction
Documents, the execution and delivery by Seller of, and performance by Seller
of its obligations under, the Transaction Documents, and the consummation of
the transactions contemplated thereby (a) have been duly authorized by all
necessary corporate action on the part of Seller; (b) do not contravene
the terms of Seller’s Certificate of Incorporation or By-Laws; and (c) to
our knowledge, will not violate, conflict with or result in any contravention
of or the creation of any Encumbrance under any Law that in our experience is
generally applicable to transactions of the type contemplated by the
Transaction Documents (without our having made any investigation concerning the
applicability of any other statute, rule or regulation).


 


3.                                       Except as disclosed in the Transaction
Documents, to our knowledge, no approval, consent, compliance, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Body or any other Person in respect of any requirement of Law and
no lapse of a waiting period under a requirement of Law, is necessary or
required in connection with the execution and delivery by Seller of, and
performance by Seller of its obligations under, the Transaction Documents to
which it is a party, and the consummation of the transactions contemplated
thereby other than those which have been obtained.


 


2





















 


4.                                       The Transaction Documents to which it is
a party have been duly executed and delivered by Seller, constitute the legal,
valid and binding obligations of Seller and are enforceable against Seller in
accordance with their respective terms.


 


5.                                       Except as disclosed in the Transaction
Documents, to our knowledge, there is no action, suit, consent decree,
proceeding, arbitration or governmental investigation pending or threatened (a) against
Seller, the Optoelectronics Business or the Purchased Assets, which seeks to
restrain or enjoin the consummation of the transactions contemplated by the
Agreement, or (b) with respect to the Optoelectronics Business, the
Purchased Assets, the Assumed Liabilities or the Transferred Employees that,
individually or in the aggregate, has had or could be reasonably expected to
have a Seller Material Adverse Effect.


 


The opinions expressed
above are specifically subject to the following limitations, exceptions,
qualifications and assumptions:


 


1.                                       We express no opinion as to the effect of
any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
other similar law relating to or affecting the relief of debtors or the rights
and remedies of creditors generally.  In
addition, we express no opinion with respect to (a) the laws, regulations
or ordinances of any county, municipality or governmental subdivision or agency
of whatever description or character or (b) antifraud laws, tax laws,
ERISA or other pension or employee benefit laws, antitrust or unfair
competition laws, environmental or health and safety laws, or labor and
employment laws.


 


2.                                       We express no opinion as to limitations
imposed by state law, federal law or general equitable principles upon the
availability of specific performance, injunctive relief or other equitable
remedies, regardless of whether enforcement of any such agreement is considered
a proceeding in equity or at law.


 


3.                                       We express no opinion as to the
enforceability of provisions pertaining to choice of law, jurisdiction or
venue.


 


4.                                       We express no opinion as to the
enforceability of any provisions waiving jury trial, statute of limitations,
and any other waivers of rights conferred by the Constitution, state
constitution or by statute or common law.


 


5.                                       We express no opinion as to the
enforceability of any severability provisions if the unenforceable portion of
the subject agreement is an essential part of the agreed-upon exchange.


 


6.                                       We express no opinion as to the
enforceability of provisions allowing a party to act in its “sole discretion”
or the like; a court may imply an obligation to act reasonably notwithstanding
the language of the contract.


 


3





















 


7.                                       We express no opinion as to the
enforceability of any reservation of the right to pursue inconsistent or
cumulative remedies.


 


8.                                       We express no opinion as to the
enforceability of provisions for attorneys’ fees other than to prevailing
parties.


 


9.                                       We express no opinion as to the
enforceability of provisions permitting waiver or modification of an agreement or
document only in writing.


 


This opinion is provided
to you as a legal opinion only, and not as a guaranty or warranty of the
matters discussed herein.  The opinions
expressed herein are rendered as of the date hereof, and we expressly disclaim
any undertaking or obligation to advise you of any changes which may occur
after the date hereof which would affect this opinion.  The opinions expressed herein are for the
benefit of and may be relied upon only by you, and then solely in connection
with the closing of the transactions contemplated by the Transaction Documents
(or by Comerica Bank who may rely upon this opinion solely in connection with
and for the purpose of advancing funds for the consummation of the transactions
contemplated by the Transaction Documents). 
Neither these opinions nor any extract herefrom or reference hereto
shall be published or furnished to, quoted to, or relied upon by any other
person for any other purpose without our express written permission.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  /s/
  Ater Wynne LLP

  	
   

  
	
   

  	
   ATER WYNNE LLP

  



 


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