Exhibit
2.1
     
 
 
 
 
 
 
  ASSET
PURCHASE AGREEMENT
  by
and among
  RAMBUS
INC.,
  RAMBUS
INTERNATIONAL LTD.,
  RAMBUS
DELAWARE LLC,
  GLOBAL
LIGHTING TECHNOLOGIES, INC.,
  SOLID
STATE OPTO LIMITED
  and
  GLOBAL
LIGHTING TECHNOLOGIES, INC.
  
  
  Dated
as of December 14, 2009
  
  Table
      of ContentPageARTICLE I
      THE ACQUISITION
      TRANSACTIONS
              21.1
              Certain Definitions
              21.2
              Additional
      Defined Terms
              71.3
              Purchase and
      Sale of Assets
              91.4
              Assumption of
      Certain Liabilities; Transferred Employees
              101.5
              The
      Closing
              111.6
              Payment of
      Purchase Price; Instruments of Sale
              111.7
              Allocation of
      Purchase Price
              12ARTICLE II
      REPRESENTATIONS AND WARRANTIES OF SELLER PARTIES
              132.1
              Organization;
      Power
              132.2
              Capital
      Structure
              132.3
              Subsidiaries
              142.4
              Authority
              142.5
              No
      Conflict
              142.6
              Consents
              152.7
              Tax
      Matters
              152.8
              Restrictions
      on Business Activities
              162.9
              Title
      to Properties; Absence of Liens and Encumbrances
              162.10
              Intellectual
      Property
              172.11
              Agreements,
      Contracts and Commitments
              232.12
              Interested
      Party Transactions
              252.13
              Governmental
      Authorization
              252.14
              Litigation
              252.15
              Environmental
      Matters
              252.16
              Brokers’
      and Finders’ Fees
              252.17
              Employee
      Benefit Plans and Compensation
              252.18
              Insurance
              282.19
              Compliance
      with Laws
              282.20
              Export
      Control Laws
              292.21
              Solvency
              292.22
              Valid
      Title
              292.23
              Corrupt
      Practices
              292.24
              Complete
      Copies of Materials
              292.25
              Representations
      Complete
              29ARTICLE III
      REPRESENTATIONS AND WARRANTIES OF BUYER PARTIES
              303.1
              Organization;
      Power
              303.2
              Authority
              303.3
              Conflicts
              30
  
  i
   
 3.4
              Consents
              313.5
              Adequacy
      of Funds
              313.6
              Representations
      Complete
              31ARTICLE IV
      ADDITIONAL AGREEMENTS
              314.1
              Taking
      of Necessary Action; Further Action; Access to Information
              314.2
              Confidentiality
              334.3
              Expenses
              334.4
              Public
      Disclosure
              344.5
              Tax
      Matters
              344.6
              Licensed
      Intellectual Property Rights
              354.7
              Right
      of First Refusal
              364.8
              Covenant
      Not to Sue
              374.9
              Release
      of Transferred Employees
              374.10
              Non-Solicitation
              37ARTICLE V
      CONDITIONS TO THE ASSET PURCHASE
              385.1
              Conditions
      to Obligations of Each Party to Effect the Asset Purchase
              385.2
              Conditions
      to the Obligations of Buyer Parties
              385.3
              Conditions
      to the Obligations of Seller Parties
              40ARTICLE VI
      SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ESCROW
              416.1
              Survival
      of Representations, Warranties and Covenants
              416.2
              Indemnification
              416.3
              Indemnification
      Limitations
              426.4
              Escrow
      Arrangements
              436.5
              No
      Indemnification Limitations and Other Matters
              44ARTICLE VII
      AMENDMENT AND WAIVER
              457.1
              Amendment
              457.2
              Extension;
      Waiver
              45ARTICLE VIII
      GENERAL PROVISIONS
              458.1
              Notices
              458.2
              Interpretation
              478.3
              Counterparts
              478.4
              Entire
      Agreement; Assignment
              478.5
              Severability
              478.6
              Other
      Remedies
              488.7
              Governing
      Law
              488.8
              Rules
      of Construction
              488.9
              WAIVER
      OF JURY TRIAL
              48
  
  
  ii
  INDEX
OF EXHIBITS AND SCHEDULES
 
 Exhibit
              DescriptionExhibit A
              Parker
      Employment AgreementExhibit
      B
              Pickett
      Employment AgreementExhibit
      C
              Bill
      of SaleExhibit
      D
              License
      AgreementExhibit
      E
              Copyright
      Co-Ownership AgreementExhibit
      F
              Transition
      Services AgreementExhibit
      G
              Referral
      AgreementExhibit
      H
              Rohm &
      Haas AmendmentExhibit
      I-1
              Form
      of Patent AssignmentExhibit
      I-2
              Form
      of Copyright AssignmentExhibit
      J
              Escrow
      AgreementSchedules
              DescriptionDisclosure
      Schedule
              Seller
      Disclosure ScheduleSchedule
      I
              Seller
      Intellectual Property – Transferred PatentsSchedule
      II
              Seller
      Intellectual Property – Transferred Know-HowSchedule
      1.3(b)
              Assumed
      ContractsSchedule
      1.4(a)
              Assumed
      LiabilitiesSchedule
      4.6-1
              Certain
      Seller Party PatentsSchedule
      4.6-2
              Excluded
      Entity ListSchedule
      5.2(b)
              Agreements
      to be Terminated at Closing
  
 
  
  
  
  
  
  
  
  
  iii
  
  THIS
ASSET PURCHASE AGREEMENT (the “Agreement”) is made and
entered into as of December 14, 2009 by and among, on the one hand, Rambus Inc.,
a Delaware corporation (“Buyer
Parent”), Rambus International Ltd., a Cayman Islands corporation (“Buyer IP”), Rambus Delaware
LLC, a Delaware limited liability corporation (“Buyer R&D,” and together
with Buyer Parent and Buyer IP, the “Buyer Parties,” and each a
“Buyer Party”), and, on
the other hand, Global Lighting Technologies, Inc., a Cayman Islands corporation
(“Seller Parent”), Solid
State OPTO Limited, a British Virgin Island business company (“Seller IP”), and Global
Lighting Technologies, Inc., an Ohio corporation (“Seller R&D,” and together
with Seller Parent and Seller IP, the “Seller Parties,” and each a
“Seller
Party”).
  RECITALS
  A.           Seller
Parties currently are engaged in the Business in connection with the operation
of their backlighting and illumination technology and manufacturing
business.
  B.           Seller
Parent owns, directly or indirectly, all of the outstanding capital stock of
Seller IP and Seller R&D, and accordingly will directly benefit from the
transactions contemplated pursuant to this Agreement.
  C.           Upon
and subject to the terms and conditions set forth herein, Seller Parties desire
to sell to Buyer Parties, and Buyer Parties desire to purchase from Seller
Parties, certain intellectual property and other assets of the Seller Parties,
and enter into certain related transactions, through (i) a purchase of
certain intellectual property and other assets from Seller IP and Seller R&D
and employment of certain employees of Seller R&D as specified in this
Agreement (the “Asset
Purchase”), (ii) the effectiveness of the licenses granted by Seller
to Buyer IP hereunder, (iii) the effectiveness of the licenses granted by Buyer
IP to Seller Parent pursuant to the License Agreement (collectively, the “License”), (iv) the
effectiveness of that certain Copyright Co-Ownership Agreement entered into
between Buyer Parent and Seller Parent (the “Copyright Co-Ownership”), (v)
the commencement of the provision of services by Seller Parent and its
Subsidiaries to Buyer Parent and its Subsidiaries, and by Buyer Parent and its
Subsidiaries to Seller Parent and its Subsidiaries, pursuant to the Transition
Services Agreement (the “Transition Services”), and
(vi) the commencement of the provision of referral services by Buyer Parent
to Seller Parent pursuant to the Referral Agreement (the “Referral Services,” and
together with the Asset Purchase, License, Copyright Co-Ownership and Transition
Services, the “Acquisition
Transactions”).
  D.           In
connection with the Acquisition Transactions, Seller Parties, on the one hand,
and Buyer Parties, on the other hand, desire to make certain representations,
warranties, covenants and other agreements, and a portion of the consideration
otherwise payable by the Buyer Parties in connection with the Asset Purchase
shall be deposited by the Buyer Parties into an escrow account as security for
the indemnification obligations set forth in this Agreement.
  E.           Concurrently
with the execution and delivery of this Agreement, as a material inducement to
Buyer Parties to enter into this Agreement, Jeff Parker is entering into an
offer letter for at-will employment with Buyer R&D and Chris Pickett is
entering into an offer letter for at-will employment with Buyer Parent, each in
substantially the forms attached hereto as
  
   Exhibit A (the “Parker Employment Agreement”)
and Exhibit B (the
“Pickett Employment
Agreement”), setting forth the principal terms and conditions of their
employment.
  NOW,
THEREFORE, in consideration of the mutual agreements, covenants and other
promises set forth herein, the mutual benefits to be gained by the performance
thereof, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and accepted, the parties hereby
agree as follows:
  ARTICLE I
  
  THE
ACQUISITION TRANSACTIONS
  1.1           Certain
Definitions
  For all
purposes of this Agreement, the following terms shall have the following
respective meanings:
  “Affiliate” means, with respect
to any Person, any other Person directly or indirectly controlling, controlled
by, or under common control with such Person.  As used in this
definition, the term “control” (including the terms “controlling,” “controlled
by” and “under common control with”) means possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a
Person, whether through ownership of voting securities, by contract or
otherwise.
  “Assumed Contracts” means those
agreements between Seller Parties and a third Person listed on Schedule 1.3(b)hereto or
that become Assumed Contracts following the Closing Date in accordance with the
provisions of this Agreement.
  “Business” means the research
and development, prototyping, marketing, manufacturing of, and the licensing and
delivery of intellectual property relating to, backlighting and illumination
technologies tailored to the requirements of a wide range of formats and
applications, including but not limited to, consumer electronic systems,
automotive lighting systems and general lighting illumination applications in
each case as such activities are presently conducted by Seller
Parties.
  “Business Day(s)” means each
day that is not a Saturday, Sunday or holiday on which banking institutions
located in California are authorized or obligated by law or executive order to
close.
  “Business Source Code” means,
any software Source Code owned by Seller Parties or embodied, incorporated or
used in the Business that is Transferred IP.
  “Code” means the U.S. Internal
Revenue Code of 1986, as amended.
  “Environmental Laws” means any
and all laws which prohibit, regulate or control any Hazardous Material or any
Hazardous Material Activity, including without
  2
   limitation,
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, the Resource Recovery and Conservation Act of 1976, the Federal Water
Pollution Control Act, the Clean Air Act, the Hazardous Materials Transportation
Act, the Clean Water Act and the Occupational Safety and Health
Act.
  “Excluded Assets” means all
assets owned by Sellers that are not Purchased Assets.
  “Governmental or Regulatory
Body” means any court, tribunal, arbitrator or any government or
quasi-governmental entity or municipality or political or other subdivision
thereof, whether federal, state, city, county, local, provincial, foreign or
multinational, or any agency, department, board, authority, bureau, branch,
commission, official or instrumentality of any of the foregoing, including
without limitation, the United States Patent and Trademark Office (the “PTO”) or equivalent authority
anywhere in the world.
  “Hazardous Material” means any
material, chemical, emission or substance that has been designated by any
Governmental or Regulatory Body to be radioactive, toxic, hazardous, a
pollutant, biohazardous, a medical waste, or otherwise a danger to health,
reproduction or the environment.
  “Hazardous Materials
Activities” mean the transportation, transfer, recycling, storage, use,
treatment, manufacture, labeling, removal, remediation, release, exposure of
others to, sale, or distribution of any Hazardous Material or any product or
waste containing a Hazardous Material, or product manufactured with Ozone
depleting substances, including, without limitation, any required payment of
waste fees or charges (including so-called e-waste fees) and compliance with any
recycling, product take-back or product content requirements.
  “Intellectual Property” means,
collectively, Technology and Intellectual Property Rights.
  “Intellectual Property Rights”
mean any or all common law or statutory rights in any of the following:
(i) patents and applications and registrations therefor, certificates of
invention, utility designs and all reissues, divisions, renewals, extensions,
provisionals, substitutions, continuations and continuations-in-part thereof and
foreign counterparts thereto (“Patents”); (ii) copyrights
(whether or not registered), copyrights registrations and applications therefor,
and all other rights corresponding thereto in any works of authorship (including
software and firmware) throughout the world including moral and economic rights
of authors and inventors, however denominated and regardless of medium of
fixation or means of expression (“Copyrights”); (iii) rights in
industrial designs and any registrations and applications therefor;
(iv) mask work rights and registrations and applications for registration
or renewal; (v) trade names, logos, trade dress, slogans, common law trademarks
and service marks, trademark and service mark registrations and applications
therefor and all goodwill associated therewith (“Trademarks”); (vi) trade
secrets (including those trade secrets defined in the Uniform Trade Secrets Act
and under corresponding foreign statutory and common law), business, technical
and know-how information, show-how information, non-public information, and
confidential information and rights to limit the use or disclosure thereof by
any Person
  3
   including
databases and data collections and all rights therein (“Trade Secrets”); and
(vii) any similar or equivalent rights to any of the foregoing (as
applicable) whether now known or hereafter recognized in any jurisdiction
worldwide, arising out of, or associated with the foregoing.
  “Interested Party” means any
officer, director or member of any Seller and any ancestor, sibling, descendant
or spouse of any of such Persons, or any trust, partnership or corporation in
which any of such Persons has or has had an interest.
  “Inventions” means any and all
inventions, discoveries and disclosures that (i) underlie, are described in, are
covered by and/or are included in any claim of the Transferred Patents, (ii) are
subject matter capable of being reduced to a patent claim in a reissue or
reexamination proceedings brought on any of the Transferred Patents, and/or
(iii) could have been included as a claim in any of the Transferred
Patents.
  “Knowledge” means the actual
Knowledge after reasonable inquiry of the following individuals: Mang-Shiang
Lee, Mike Mayer, Jeff Parker, Eddy Petric, Chris Pickett and Kurt
Starkey.
  “Law” means any law, statute,
rule, regulation, ordinance, directive, decree, codes, awards, Orders, and other
pronouncement having the effect of law of any country or state, or of any
Governmental or Regulatory Body.
  “Liability(ies)” means any
direct or indirect liability, indebtedness, guaranty, claim, loss, damage,
deficiency, assessment, obligation or responsibility, fixed or unfixed, choate
or inchoate, liquidated or unliquidated, secured or unsecured, accrued,
absolute, known or unknown, contingent or otherwise.
  “Licensed Intellectual Property
Rights” means all Intellectual Property Rights (other than Trademarks)
owned, controlled, held in the name of, or sublicensable by any Seller
immediately after Closing.
  “Lien” means any mortgage,
lien, pledge, hypothecation, charge, preference, security interest, attachment,
claim, contractual restriction, including transfer restrictions, put, call,
right of first refusal, easement, servitude, right-of-way, option, warrant,
conditional sale or installment contract or encumbrance of any kind and any
financing lease involving substantially the same effect (including, with regard
to any shares, any Liens that the issuer of such shares may have on such
shares).
  “Made Available” means that
Seller Parties have posted such materials to the virtual data room managed by
Seller Parties and accessible to Buyer Parties and their
representatives.
  “Material Adverse Effect” means
any change, event, circumstance, condition or effect that, individually or in
the aggregate with all other changes, events, circumstances, conditions or
effects, is or could reasonably be expected to be materially adverse to
(i) the Purchased Assets or (ii) the ability of Seller Parties to
perform their obligations under this
  4
   Agreement
and the Related Agreements or to consummate the Acquisition Transactions; provided, however, that none
of the following shall be deemed to constitute, and none of the following shall
be taken into account in determining whether there has been, or would reasonably
be expected to be, a Material Adverse Effect: (i) changes in general economic
conditions in the United States or any other country or region in the work, or
changes in conditions in the global economy generally, or in conditions in the
backlighting and illumination technology industry generally; (ii) changes in
conditions in the financial markets, credit markets or capital markets in the
United States or any other country or region in the world; (iii) changes in
political conditions in the United States or any other country or region in the
world; (iv) acts of war, sabotage or terrorism (including any escalation or
general worsening of any such acts of war, sabotage or terrorism) in the United
States or any other country or region in the world; (v) earthquakes, hurricanes,
tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters,
weather conditions and other force majeure events; and (vi) changes in law or
other legal or regulatory conditions (or the interpretation
thereof).
  “Object Code” shall mean
computer software, substantially or entirely in binary form, which is intended
to be directly executable by a computer after suitable processing and linking
but without the intervening steps of compilation or assembly.
  “Open Source Materials” means
software or other material that is distributed as “free software,” “open source
software” or under a similar licensing or distribution model (including but not
limited to the GNU General Public License (GPL), GNU Lesser General Public
License (LGPL), Mozilla Public License (MPL), BSD licenses, the Artistic
License, the Netscape Public License, the Sun Community Source License (SCSL)
the Sun Industry Standards License (SISL) and the Apache License).
  “Optical Pattern Software”
means all Software (excluding any commercially available, off the shelf, Third
Party Software) owned, or held in the name of or used by, Seller IP and/or
Seller RD for the design and further manufacture of a predetermined pattern of
elements or deformities to cause light to be emitted from a light emitting panel
assembly incorporating at least one optically conductive wave guide or an
optically conductive wave guide by itself, where such optically conductive wave
guide has at least (i) a greater cross sectional width than thickness, and (ii)
a predetermined pattern of elements or deformities configured to cause light to
be emitted.
  “Order” means any writ,
judgment, decree, award, ruling, injunction or similar order of any Governmental
or Regulatory Body, in each case whether preliminary or final.
  “Ordinary Course of Business”
or “Ordinary Course” or
any similar phrase means the ordinary course of business of the Business,
consistent with Seller Parties’ past practices for the Business.
  “Person” means any individual,
corporation, partnership, limited liability company, firm, joint venture,
association, company, trust, unincorporated organization, Governmental or
Regulatory Body or other entity.
  5
   “Registered Intellectual Property
Rights” means Intellectual Property Rights that have been registered,
applied for, filed, certified or otherwise perfected, issued, or recorded with
or by any Governmental or Regulatory Body.
  “Related Agreements” means the
Parker Employment Agreement, the Pickett Employment Agreement, the License
Agreement, the Copyright Co-Ownership Agreement, the Transition Services
Agreement, the Referral Agreement and the Bill of Sale.
  “Seller(s)” means Seller
Parent, and/or its Subsidiaries (including Seller IP and Seller R&D) and/or
their respective Affiliates.
  “Seller Intellectual Property”
means any and all Intellectual Property that is owned by, held in the name of,
or licensed to any Seller that is used in, held for, relating to, necessary for,
otherwise benefiting, or would be infringed by the operation of, the Business,
including but not limited to, all Intellectual Property listed or described on
Schedule I and Schedule
II.
  “Shrink-WrapAgreements” means generally
commercially available licenses for Object Code (other than development tools
and development environments) where such Object Code is available for a cost of
not more than U.S. $5,000 for a perpetual license for a single user or work
station (or $50,000 in the aggregate for all users and work
stations).
  “Software” means any and all
computer software and code, including assemblers, applets, compilers, Source
Code, Object Code, data (including image and sound data), design tools, and user
interfaces, in any form or format, however fixed.  “Software”
specifically includes Source Code listings and documentation.
  “Source Code” means computer
software and code, in form other than Object Code form, including related
programmer comments and annotations, help text, data and data structures,
instructions and procedural, object-oriented and other code, which may be
printed out or displayed in human readable form.
  “Subsidiary” means, with
respect to any Person, any other Person, whether or not existing on the date
hereof, in which such first Person, directly or indirectly, beneficially owns at
least fifty percent (50%) of either the equity interest, or voting power of or
in such other Person.
  “Technology” means any or all
of the following instantiations or embodiments of the following in any form and
embodied in any media: (i) works of authorship including computer programs,
Source Code, and Object Code, whether embodied in Software, firmware or
otherwise, architecture, documentation, designs, files, records and data,
(ii) inventions (whether or not patentable), discoveries, improvements,
invention disclosures, inventor notebooks, records, research and documentation
related to inventions, (iii) proprietary and confidential information,
trade secrets, show-how and know how, (iv) databases, data compilations and
collections, (v) technical data, customer lists, supplier lists, component
lists, manufacturing process or procedures descriptions,  manuals,
schedules, prototypes, methods and processes, and (vi) technology, hardware,
tools, manufacturing equipment, molds, casts, masters, templates, or
machinery.
  6
   “Transferred IP” means any and
all Transferred Patents and Transferred Know-How.
  “Transferred Know-How” means any and all
Technology listed or described on Schedule II, and any and all
Intellectual Property Rights (other than Patents) owned by, or held in the name
of, Seller IP and/or Seller R&D associated or embodied therein.
  “Transferred Patents” means those Patents
and Patent applications listed or described on Schedule I.
  1.2           Additional
Defined Terms
  The
following capitalized terms shall have the respective meanings set forth in the
respective Sections of this Agreement set forth opposite each such respective
term below:
 
 Index
      of Terms
              SectionAcquisition
      Transactions
              RecitalsAgreement
              PreambleAllocation
              1.7Asset
      Purchase
              RecitalsAssignment
      Instruments
              5.2(j)Assumed
      Liabilities
              1.4(a)Background
      License
              4.6Basket
      Amount
              6.3(b)Books
      and Records
              1.3(c)Business
      Authorizations
              2.13Buyer
      IP
              PreambleBuyer
      Parent
              PreambleBuyer
      Parties
              PreambleBuyer
      R&D
              PreambleBuyer
      Secretary Certificate
              5.3(e)Capital
      Stock
              4.7Change
      of Control
              4.7Charter
      Documents
              2.1Closing
              1.5Closing
      Date
              1.5COBRA
              2.17(a)Confidentiality
      Agreement
              4.2Conflict
              2.5Consultant
      Proprietary Information Agreement
              2.10(x)Contract(s)
              2.5Copyright
      Co-Ownership
              RecitalsCopyright
      Co-Ownership Agreement
              5.2(d)Copyrights
              1.1
  7
   
 Index
      of Terms
              SectionCounsel
              4.1(b)Disclosure
      Schedule
              Article
      IIDOL
              2.17(a)Employee
      Agreement
              2.17(a)Employee
      Proprietary Information Agreement
              2.10(x)ERISA
              2.17(a)ERISA
      Affiliate
              2.17(a)Escrow
      Agreement
              6.4(a)Escrow
      Amount
              6.4(a)Escrow
      Fund
              6.4(a)Escrow
      Period
              6.4(b)Exercise
      Notice
              4.7Exercise
      Period
              4.7FMLA
              2.17(a)HIPAA
              2.17(a)Inbound-Licenses
              2.10(o)Indemnified
      Parties
              6.2(a)Intercompany-Licenses
              2.10(o)International
      Employee Plan
              2.17(a)IP
      Contracts
              2.10(p)IRS
              2.17(a)Lease
      Agreements
              2.9(a)Leased
      Real Property
              2.9(a)License
              RecitalsLicense
      Agreement
              5.2(c)Loss(es)
              6.2(a)NDAs
              2.10(o)Non-Paying
      Party
              4.5(b)(iii)Offered
      Assets
              4.7Officer’s
      Certificate
              6.4(a)Outbound-Licenses
              2.10(o)Parker
      Employment Agreement
              RecitalsPatents
              1.1Paying
      Party
              4.5(b)(iii)PBGC
              2.17(a)Pension
      Plan
              2.17(a)Pickett
      Employment Agreement
              RecitalsPTO
              1.1Purchase
      Price
              1.6(a)Purchased
      Assets
              1.3Referral
      Agreement
              5.2(f)
  
  8
   
 Index
      of Terms
              SectionReferral
      Services
              RecitalsRetained
      Liabilities
              1.4(b)Returns
              2.7(b)(i)Right
      of First Refusal
              4.7Rohm &
      Haas Amendment
              5.2(i)Seller
      Employee Plan
              2.17(a)Seller
      IP
              PreambleSeller
      Parent
              PreambleSeller
      Parties
              PreambleSeller
      R&D
              PreambleSeller
      Secretary Certificate
              5.2(h)Straddle
      Period Tax
              4.5(b)(iii)Survival
      Date
              6.1Tax(es)
              2.7(a)Third
      Party Claim
              6.4(c)Third
      Party Expenses
              4.3Trade
      Secrets
              1.1Trademarks
              1.1Transfer
      Notice
              4.7Transfer
      Taxes
              4.5(a)Transferred
      Employees
              1.4(c)Transition
      Services
              RecitalsTransition
      Services Agreement
              5.2(e)Voting
      Stock
              4.7
  1.3           Purchase and
Saleof Assets
  Subject
to the terms and conditions set forth in this Agreement, at the Closing, Seller
Parties hereby agree to irrevocably sell, convey, transfer and assign to Buyer
Parties, free and clear of all Liens, and Buyer Parties hereby agree to purchase
from Seller Parties all right, title and interest in and to the following
assets:
  (a)           the
Transferred IP and all rights to sue or recover and claim damages and costs for
past, present and future infringement or misappropriation of any of the
thereof;
  (b)           all
rights of Seller Parties under the Assumed Contracts, if any;
  (c)           all
materials, papers, records, research and documentation (in paper or electronic
format) to the extent primarily relating to Transferred Know-How, including
copies of all competitive analysis documents, public marketing documents,
published and non-published technical papers, research and development supplier
lists with contact information for research and development prototying, and
prototyping documents (collectively, “Books and
Records”);
  (d)           all
other goodwill related to the Purchased Assets; and
  (e)           all
rights, claims and privileges pertaining to, arising out of, or associated with,
the assets described in Sections 1.3(a) through 1.3(d) above, including,
without limitation, the right to file, prosecute and maintain the Transferred
IP, the right to collect royalties or other payments, and the right to initiate
causes of action for injunctive relief and other remedies of any kind for all
past, present and future infringement of such Intellectual Property
Rights.
  9
   All of
the assets referred to in Sections 1.3(a) through
1.3(e), inclusive, are
collectively referred to herein as the “Purchased
Assets.”
  Without
limiting the generality of this Section 1.3, the Purchased
Assets shall not include the Excluded Assets.
  1.4           Assumption of
Certain Liabilities; Transferred Employees.
  (a)           Buyer
Parties shall not assume any Liabilities of Seller Parties except for those
Liabilities which Buyer Parties expressly assume pursuant to this Section 1.4(a).  On
the terms and subject to the conditions of this Agreement, Buyer Parties shall,
on the Closing Date, assume the Liabilities of Sellers as of the Closing Date,
whether accrued or arising before or after the Closing, listed on Schedule 1.4(a)hereto
(the “Assumed
Liabilities”).
  (b)           Seller
Parties shall retain and be responsible for paying, performing and discharging
when due, and Buyer Parties shall not assume or have any responsibility for, all
Liabilities of Seller Parties other than, as of the Closing Date, the Assumed
Liabilities (the “Retained
Liabilities”).  Without limiting the generality of the
foregoing, the Retained Liabilities shall include all of the following
Liabilities (other than the Assumed Liabilities): (i) any Liability arising
from or related to the operations of Seller Parties, whenever arising or
incurred, or the ownership of the Purchased Assets by Seller Parties through the
Closing Date; (ii) all implied or explicit warranty or support obligations
with respect to the Purchased Assets entered into prior to the Closing Date by
Seller Parties; (iii) any Liabilities related to Seller Parties’ employees
or employment matters; (iv) claims for death, personal injury, property
damage or consequential, punitive, or other damages relating to or arising out
of any business conducted by Seller Parties; (v) the violation or alleged
violation of any Law by Seller Parties, including but not limited to, laws
relating to civil rights, health, safety, labor, discrimination, export
controls, and protection of the environment; (vi) claims of creditors of
Seller Parties; (vii) claims relating to the disposal or arrangement for
disposal by Seller Parties of any hazardous substance at any site, location or
facility (whether or not owned or leased by Seller Parties); (viii) any
obligation of Seller Parties to indemnify any Person; (ix) any Taxes of
Seller Parties for any taxable period, including any liability for Taxes arising
from or attributable to the operation of the Business or use or ownership of the
Purchased Assets for all taxable periods (or portions thereof) ending on or
prior to the Closing Date, and including any Transfer Taxes and Straddle Period
Taxes allocable to Seller Parties pursuant to this Agreement; and (x) any
liability or obligation of Seller Parties for costs and expenses incurred in
connection with this Agreement, and the transactions contemplated hereby and
thereby.
  (c)           Prior
to the Closing, those employees of Seller R&D listed in Section 2.17(b)(i) of the
Disclosure Schedule (the “Transferred Employees”) will
have entered into offer letters for at-will employment with Buyer Parent or an
Affiliate of Buyer Parent, such employment to be conditioned upon the
Closing.  Buyer Parties shall be solely responsible for the execution
of employment agreements with such Transferred Employees and none of the Seller
Parties shall be liable in case any Transferred Employee does not accept
employment of Buyer Parent or any of its Affiliates.  Such employment
will (i) be in compliance with any standard human resources policies and
procedures of Buyer Parties, including requirements for
  10
   proof
evidencing a legal right to work in the U.S. and the execution of Buyer Parent’s
standard form of employee proprietary information agreement, (ii) have
terms, including the position and responsibilities of such Transferred Employee
as determined by Buyer Parties in consultation with Seller R&D, and
(iii) supersede any prior employment agreements and other arrangements with
such Transferred Employee in effect prior to the date thereof with any
Sellers.
  (d)           Prior
to the Closing, each Transferred Employee will have entered into a resignation
and release letter with the applicable Seller Party satisfactory to such Seller
Party, which shall provide, inter alia, that such Transferred Employee shall
release and forever discharge such Seller Party and its Affiliates from any and
all claims arising out of or in connection with his/her employment with such
Seller Party prior to the Closing Date and/or termination of employment with
such Seller Party at the Closing Date, whether by contract or
otherwise.  Seller Parties shall be solely responsible for the
execution of the resignation and release letters with such Transferred
Employees.
  (e)           On
and after the Closing Date, Buyer Parent and its Affiliates shall bear the sole
responsibility for instructing and supervising the Transferred Employees and
shall thereafter pay, perform, discharge or otherwise satisfy obligations for
the employment of such Transferred Employees.  The Liabilities of the
Transferred Employees shall be assumed by Buyer Parent and/or its Affiliates
commencing from the Closing.
  1.5           The
Closing
  The
closing of the Asset Purchase (the “Closing”) will take place,
subject to the satisfaction or waiver of the conditions set forth in Article Vhereof, on the date
hereof simultaneous with the entry into this Agreement, at the offices of Wilson
Sonsini Goodrich & Rosati, Professional Corporation, 650 Page Mill
Road, Palo Alto, CA 94304.  The date upon which the Closing actually
occurs shall be referred to herein as the “Closing Date.”  The
Closing will be effective as of 12:01 a.m. Cleveland time on the Closing
Date.
  1.6           Payment of
Purchase Price; Instruments of Sale
  (a)           The
purchase price for the Asset Purchase (the “Purchase Price”) is
$26,000,000 in cash.  An amount equal to $22,100,000 of the Purchase
Price shall be paid in cash by Buyer Parties by wire transfer of immediately
available funds at the Closing to a bank account designated in writing by Seller
Parties at least two (2) Business Days prior to the Closing Date, and an amount
equal to $3,900,000 of the Purchase Price shall be paid into escrow to be held
pursuant to the escrow arrangements contained in Section 6.4.
  (b)           At
the Closing, Buyer Parties shall execute and deliver to Seller
Parties:
  (i)      the
Purchase Price in the amount of $22,100,000 pursuant to Section 1.6(a)
above;
  (ii)      the
Related Agreements to which Buyer Parties are a party;
  (iii)    
an executed copy of the Escrow Agreement; and
  11
   
 (iv)    such
other instruments, documents and certificates referred to in Article V.
  (c)           At
the Closing, the applicable Seller Parties shall execute and deliver to Buyer
Parties:
  (i)                 
all of the Purchased Assets or, in the case of the Transferred IP or other
intangible assets, such instruments as are necessary or desirable to document
and to transfer title to such assets from Seller Parties to Buyer
Parties;
  (ii)               
 (A) a duly executed bill of sale for the Purchased Assets
substantially in the form of Exhibit C hereto;
(B) assignments of the Transferred IP in forms acceptable to Buyer Parties
and otherwise suitable for filing in all relevant jurisdictions, including
copyright, patent and trademark registrations and assignments, including the
assignment for Transferred Patents substantially in the form of Exhibit I-1 hereto and all
Copyrights in the Transferred IP substantially in the form of Exhibit I-2 hereto;
(C) such other good and sufficient instruments of conveyance, assignment
and transfer, in form and substance reasonably acceptable to Buyer Parties, as
shall be effective to vest in Buyer Parties good and valid title in and to the
Purchased Assets; and (D) an executed copy of the Escrow Agreement;
  (iii)                 (A) all
of the Assumed Contracts and (B) for each such Assumed Contract, to the
extent required by its terms, a written agreement in a form satisfactory to
Buyer Parties, signed by the party or parties (in addition to any Seller
Parties) to such Assumed Contract pursuant to which such party or parties
thereto: (1) consent to the transfer and assignment of such Assumed
Contract to Buyer Parties and (2) confirm that Buyer Parties will have all
rights that Sellers had under such Assumed Contract prior to the Closing and
that there is no breach or default under such Assumed Contract;
  (iv)                 any
other Related Agreements to which Seller Parties are a party;
  (v)                 
evidence of release of all Liens on the Purchased Assets;
  (vi)                 evidence
of termination of all agreements listed on Schedule 5.2(b);
and
  (vii)                such
other instruments, documents and certificates referred to in Article V.
  1.7           Allocation of
Purchase Price
  Buyer
Parties shall, within thirty (30) days after the Closing Date, deliver to Seller
Parties an allocation of the Purchase Price among the Purchased Assets in
accordance with Section 1060 of the Code and the Regulations promulgated
thereunder (the “Allocation”).  Within
ten (10) days after receipt of the Allocation, Seller Parties shall either (a)
accept the Allocation, in which case the Allocation shall be conclusive and
binding upon Buyer Parties and
  12
   Seller
Parties for all purposes, and the parties agree that all returns and reports
(including IRS Form 8594) and all financial statements shall be prepared in
a manner consistent with (and the parties shall not otherwise file a Return
position inconsistent with) the Allocation unless required by the IRS or any
other applicable taxing authority; or (b) Seller Parties shall have an
additional ten (10) days to discuss any differences with respect to the
Allocation with Buyer Parties, at the end of which period each of Seller Parties
and Buyer Parties will be entitled to prepare all returns and reports and all
financial statements in a manner that they deem appropriate.
  ARTICLE II
  
  REPRESENTATIONS
AND WARRANTIES OF SELLER PARTIES
  Seller
Parties represent and warrant to Buyer Parties, subject to such matters,
exceptions and/or qualifications as are disclosed in the disclosure schedule
supplied by Seller Parties to Buyer Parties (the “Disclosure Schedule”) and
dated as of the date hereof, as follows:
  2.1           Organization;
Power
  Seller
Parent is a company with limited liability, duly incorporated, validly existing
and in good standing under the laws of the Cayman Islands.  Seller IP
is a company with limited liability, duly incorporated, validly existing and in
good standing under the laws of the British Virgin Islands.  Seller
R&D is an Ohio corporation, duly incorporated, validly existing and in good
standing under the laws of the State of Ohio.  Each Seller Party has
all requisite corporate or other power to own its properties and to carry on its
business (including the Business) as currently conducted and as contemplated to
be conducted.  Each Seller Party is duly qualified or licensed to do
business and is in good standing as a company, or as the case may be, a foreign
corporation in each jurisdiction in which the character or location of its
assets or properties (whether owned, leased or licensed) or the nature of its
business make such qualifications necessary, except where failure to be
qualified would not reasonably be expected to result in a Material Adverse
Effect.  Seller Parties have Made Available true and correct copies of
the certificate of incorporation and bylaws, memorandum and articles of
association, or equivalent organizational documents of each Seller Party, each
as amended to date and in full force and effect on the date hereof
(collectively, the “Charter Documents”), to Buyer
Parties.  None of Seller Parties have approved or proposed any
amendment to any of the Charter Documents that is not already reflected in the
Charter Documents.
  2.2           Capital
Structure
  There
have not been any issuances, repurchases or redemptions of any outstanding
equity securities of Seller IP and Seller R&D that would impact the
execution and delivery by each Seller Party of this Agreement and any Related
Agreement to which such Seller Party is a party, and the consummation of the
Acquisition Transactions and the other transactions contemplated hereby and
thereby.
   13
  2.3           Subsidiaries
 Seller
R&D is the only Subsidiary of Seller IP, and Seller R&D has never had
any Subsidiaries and does not otherwise own any shares of capital stock or any
interest in, or control, directly or indirectly, any other corporation, limited
liability company, partnership, association, joint venture or other business
entity.
  2.4           Authority
  Each
Seller Party has all requisite power, legal right, capacity and authority to
enter into this Agreement and any Related Agreements to which it is a party and
to consummate the Acquisition Transactions and the other transactions
contemplated hereby and thereby.  This Agreement, the Acquisition
Transactions and the other transactions and grant of rights contemplated hereby
have been approved by the Board of Directors/members of each Seller
Party.  The execution and delivery of this Agreement and any Related
Agreements to which each Seller Party is a party and the consummation of the
Acquisition Transactions and the other transactions contemplated hereby and
thereby have been duly authorized by all necessary corporate action on the part
of each Seller Party and no further action is required on the part of each
Seller Party or its respective stockholders or shareholders, as the case may be,
to authorize this Agreement and any Related Agreements to which each of them is
a party and the Acquisition Transactions and the other transactions contemplated
hereby and thereby, and the approval of the shareholders of Seller Parent is not
required to authorize this Agreement and any Related Agreements and the
Acquisition Transactions and the other transactions contemplated hereby and
thereby.  This Agreement and each of the Related Agreements has been
duly executed and delivered by each Seller Party hereto and thereto, and
assuming the due authorization, execution and delivery by the other parties
hereto and thereto, constitute the valid and binding obligations of each Seller
Party hereto and thereto, enforceable against each in accordance with their
respective terms.
  2.5           No
Conflict
  The
execution and delivery by each Seller Party of this Agreement and any Related
Agreement to which such Seller Party is a party, and the consummation of the
Acquisition Transactions and the other transactions contemplated hereby and
thereby, will not (A) result in any breach or default under (with or
without notice or lapse of time, or both), or give rise to a right of
termination, cancellation, modification or acceleration of any obligation or
loss of any benefit under (any such event, a “Conflict”), (i) any
provision of any of the Charter Documents, (ii) any mortgage, indenture,
lease, contract, covenant, understanding, power of attorney or other agreement,
instrument or commitment, permit, concession, non-disclosure agreement,
franchise or license (each a “Contract” and collectively the
“Contracts”) binding
upon any Seller Party or any of their respective assets (whether tangible or
intangible) or properties (including the Business) other than breaches or
defaults that would not reasonably be expected to result in a Material Adverse
Effect, or (iii) any Law or Order applicable to any Seller Party or any of
their respective properties (whether tangible or intangible) or assets
(including the Business) other than breaches or defaults that would not
reasonably be expected to result in a Material Adverse Effect, or
(B) result in the imposition of any Lien upon any of the Purchased
Assets.  Section 2.5of the
Disclosure Schedule sets forth all necessary consents, waivers and approvals of
parties to this Agreement and any Related Agreement and any Assumed Contracts as
are required
  14
   thereunder.
Following the Closing, Buyer Parties will be permitted to exercise all of Seller
Parties’ rights and receive all of Sellers Parties’ benefits (including
payments) under the Assumed Contracts to the same extent that Seller Parties
would have been able to had the transactions contemplated by this Agreement not
occurred and without the payment of any additional amounts or consideration
other than ongoing fees, royalties or payments which Seller IP or Seller R&D
would otherwise have been required to pay pursuant to the terms of such Assumed
Contracts had the transactions contemplated by this Agreement not
occurred.
  2.6           Consents
  The
execution, delivery and performance of this Agreement and the Related Agreements
does not require a consent, notice, waiver, approval, order or authorization of,
or registration, declaration or filing with, any Governmental or Regulatory
Body.
  2.7           Tax
Matters.
  (a)           Definition of
Taxes.  For the purposes of this Agreement, the term “Tax” or, collectively, “Taxes” shall
mean (i) any and all U.S. federal, state, local and non-U.S. taxes,
assessments and other governmental charges, duties, impositions and Liabilities,
including taxes based upon or measured by gross receipts, income, profits,
sales, use and occupation, and value added, ad valorem, transfer, franchise,
withholding, payroll, recapture, employment, excise, service, fringe benefit and
property taxes as well as public imposts, fees and social security charges
(including but not limited to health, unemployment and pension insurance),
together with all interest, penalties and additions imposed with respect to such
amounts, (ii) any Liability for the payment of any amounts of the type
described in clause (i) of this Section 2.7(a)as a
result of being a member of an affiliated, consolidated, combined, unitary or
similar group, including any arrangement for group or consortium relief or
similar arrangement, for any period, and (iii) any Liability for the
payment of any amounts of the type described in clauses (i) or (ii) of this
Section 2.7(a)as a
result of any express or implied obligation to indemnify any other Person or as
a result of any obligation under any agreement or arrangement with any other
Person with respect to such amounts and including any Liability for Taxes of a
transferor or predecessor or otherwise by operation of law.
  (b)           Tax Returns and
Audits.
  (i)      All
required U.S. federal, state, local and non-U.S. returns, estimates, information
statements and reports (“Returns”) relating to any and
all Taxes concerning or attributable to any Seller Party or the Purchased Assets
have been prepared and timely filed and such Returns are true and correct and
have been completed in accordance with applicable Law.
  (ii)      All
Taxes shown as due on such Returns have been or will be timely paid or withheld,
and any such withheld Taxes have been timely paid over to the appropriate
Governmental or Regulatory Body.
  (iii)    There
is no outstanding or material unassessed Tax deficiency proposed in a writing
delivered to any Seller Party nor is any action pending by any
  15
   Governmental
or Regulatory Body for the assessment, reassessment or collection of any
material Taxes.
  (iv)   There
are no Liens on the Purchased Assets relating or attributable to Taxes, other
than Liens for Taxes not yet due and payable.
  2.8           Restrictions on
Business Activities
  There is
no Contract or Order used in, held for, relating to, necessary for, or otherwise
benefiting the Purchased Assets or the Transferred IP which would or may
reasonably be expected to have the effect, with respect to any Assumed Contract
or the use or ownership of the Purchased Assets, of prohibiting or impairing any
business practice, any acquisition of assets (tangible or intangible) or
property, or otherwise limiting the freedom to engage in any line of business or
to compete with any Person or to use the Purchased Assets.  Without
limiting the generality of the foregoing, with respect to any Assumed Contract
or the use or ownership of the Purchased Assets, no agreement has been entered
into that is used in, held for, relating to, necessary for, or otherwise
benefiting the Purchased Assets under which any Person (i) is restricted
from selling, licensing, manufacturing or otherwise distributing any of its
Intellectual Property Rights, Technology or products or from providing services
to customers or potential customers or any class of customers, in any geographic
area, during any period of time, or in any segment of the market, (ii) is
required to provide any price protection, “most favored nation” or similar
provisions to any customers or potential customers or any class of customers
(that is, required to give pricing to such customers or potential customers or
classes of customers that is at least as good or more favorable to that offered
to others for similar goods and/or services), (iii) has agreed to purchase
a minimum amount of goods or services, or (iv) has agreed to purchase goods
or services exclusively from a certain party.
  2.9           Title to
Properties; Absence of Liens and Encumbrances.
  (a)           Section 2.9(a)of the
Disclosure Schedule sets forth a list of all real property currently leased,
subleased or licensed by or from Seller IP and/or Seller R&D, or otherwise
used or occupied by Seller IP and/or Seller R&D (the “Leased
Real Property”),including the aggregate
annual rental payable thereunder.  Seller Parties have Made Available
to Buyer Parties true, correct and complete copies of alllease agreements, including all amendments, terminations
and modifications thereof (the “Lease
Agreements”); and there are no other Lease Agreements for real property
affecting the Leased Real Property or to which Seller IP or Seller R&D is
bound.  All such Lease Agreements are valid and effective in
accordance with their respective terms, and there is not, under any of such
Lease Agreements, any existing default, no rentals are past due, or event of
default (or event which with notice or lapse of time, or both, would constitute
a default).  As provided under the Transition Services Agreement, the
Closing will not affect the enforceability against any Person of any such Lease
Agreement or the rights of any Buyer Party to the continued use and possession
of the Leased Real Property occupied for the conduct of the Business, or result
in any breach of or constitute a default (or an event that with notice or lapse
of time or both would become a default) under, or impair the rights of any Buyer
Party or alter the rights or obligations of the sublessor, lessor or licensor
under, or give to others any rights of termination, amendment, acceleration
or
  16
   cancellation
of any Lease Agreement.  There are no other parties occupying, or with
a right to occupy, any portion of the Leased Real Property.
  (b)           The
Leased Real Property is in good operating condition and repair, free from
material structural, physical and mechanical defects, is maintained in a manner
consistent with standards generally followed with respect to similar properties,
and is structurally sufficient and otherwise suitable for the conduct of the
Business.  Neither the operations of Seller IP and/or Seller R&D
on the Leased Real Property nor, to the knowledge of Seller Parties, such Leased
Real Property, including the improvements thereon, violate in any material
respect any applicable building code, zoning requirement, ordinance, rule,
regulation, statute or other similar Law relating to such property or operations
thereon, and any such non-violation is not dependent on so-called non-conforming
use exceptions.  There is not existing, no Seller Party has received
any notice of, and to the knowledge of Seller Parties, there is not presently
contemplated or proposed, any eminent domain, condemnation or similar action,
or, to the knowledge of Seller Parties, zoning action or proceeding, with
respect to any portion of the Leased Real Property.
  2.10           Intellectual
Property
  (a)           Section 2.10(a) of the
Disclosure Schedule contains a list of the Transferred IP, and in each case
listing, as applicable, (A) the name of the applicant/registrant and current
owner, (B) the jurisdiction where the application/registration is located and
(C) the application or registration number.
  (b)           To
the Knowledge of Sellers, each Registered Intellectual Property Right within the
Transferred IP is valid and subsisting (with respect to those pending
applications, “valid and subsisting” means that any Seller Party is actively
pursuing registration by filing applications, responding to inquiries and office
actions, complying with all duties of disclosure, and paying all necessary
application and registration fees and that Seller Parties have no basis to
believe that such applications when issued patents will not be valid and
subsisting).  Each item of Registered Intellectual Property Right
within the Transferred IP has been prosecuted in material compliance with all
applicable rules, policies, and procedures of the applicable Governmental or
Regulatory Body and is not subject to “small entity” or other similar status
under applicable Law that would not be applicable to Buyer Parties.
  (c)           All
necessary registration, maintenance and renewal fees in connection with
Registered Intellectual Property Rights within the Transferred IP, which have
become due and payable, have been timely paid and all necessary documents and
certificates in connection with such Registered Intellectual Property Rights
have been filed with the relevant patent, copyright, trademark or other
Governmental or Regulatory Bodies in the United States or foreign jurisdictions,
as the case may be, for the purposes of maintaining such Registered Intellectual
Property Rights.  To the Knowledge of Sellers, there are no actions
(including the payment of late fees or penalties) that must be taken by any
Seller Party or any other Person on behalf of any Seller Party before January 1,
2010, including the payment of any registration, maintenance or renewal fees or
the filing of any responses to any Governmental or Regulatory Body of
office
  17
   actions,
documents, applications or certificates for the purposes of obtaining,
maintaining, perfecting or preserving or renewing any Registered Intellectual
Property Rights within the Transferred IP, except as set forth in Section 2.10(c) of the
Disclosure Schedule .
  (d)           No
Registered Intellectual Property Right within the Transferred IP has been or is
now involved in any interference, reissue, reexamination, opposition or other
legal proceeding, including any such proceedings in which the scope, validity,
ownership, right to use, or enforceability of any Transferred IP is being
contested or challenged, in the United States or any foreign jurisdiction, and,
to the Knowledge of the Seller Parties, no such action has been
threatened.
  (e)           Seller
Parties have complied in all material respects with all requirements of every
Governmental or Regulatory Body relating to the Patents included in the
Transferred IP. Seller Parties have disclosed to Buyer all Intellectual Property
and Intellectual Property Right of any Person of which Sellers have Knowledge
and that would or could reasonably be expected to provide grounds for
invalidation or limitation of any Patent within the Transferred IP.
  (f)           No
Seller is a party to or bound by any contract, decree, order, or arbitral award
that would or could reasonably be expected to require a Seller to grant to any
third Person any license, covenant not to sue, immunity or other right with
respect to any Transferred IP or future-developed Intellectual Property related
to the Transferred IP, except as identified in Section 2.10(f) of the
Disclosure Schedule.
  (g)           In
each case in which any Seller has acquired or purports to have acquired
ownership of any Transferred IP from any Person, such Seller has obtained a
valid and enforceable assignment sufficient to irrevocably transfer all rights
in the Transferred IP (including the right to seek past and future damages with
respect thereto) acquired from such Person, and where such Seller Intellectual
Property is a Transferred IP Registered Intellectual Property Right, such Seller
has recorded each such assignment with the relevant Governmental or Regulatory
Body, except as identified in Section 2.10(g)of the
Disclosure Schedule.
  (h)           Seller
Parties have disclosed to Buyer all facts or circumstances of which the Sellers
have Knowledge that would render any Transferred IP that is an Intellectual
Property Right invalid or unenforceable.
  (i)           After
the Closing, all Intellectual Property Rights that were Transferred IP will be
fully transferable, alienable and licensable by Buyer Parties without
restriction and without payment of any kind to any third Person, except as
identified in Section
2.10(i) of the Disclosure Schedule.
  (j)           Each
item of Transferred IP is free and clear of any Liens, except as identified in
Section 2.10(j) of the Disclosure
Schedule.
  (k)           Seller
IP and Seller R&D are the exclusive owners of all Transferred
IP.  Seller IP is listed in the records of the appropriate
Governmental or Regulatory Body as the sole owner of each item of Transferred IP
that is a Registered Intellectual Property Right, except as identified in Section 2.10(k)(i) of the
Disclosure Schedule. Without limiting the generality of the
  18
   foregoing,
to the Knowledge of Sellers, (i) Seller IP is the exclusive owner of all
Trademarks included in the Transferred IP, (ii) Seller IP owns exclusively
and has good title to, or has validly licensed, all copyrighted works that are
included or incorporated into, or used to provide, the Transferred IP or which
Seller IP otherwise explicitly purports to own, (iii) the Transferred
Know-How does not infringe any Patents other than the Transferred Patents, and
(iv) all the Technology developed by or for Sellers used in, held for,
relating to, necessary for, or otherwise benefiting the Business and all
Intellectual Property Rights therein or thereto have been properly assigned and
transferred to Seller IP, and constitutes Transferred IP, except as stated in
Section 2.10(k)(ii) of
the Disclosure Schedule.
  (l)           To
the extent that any Transferred IP has been developed or created independently
or jointly by any Person (including employees and consultants) for which any
Seller has, directly or indirectly, provided consideration for such development
or creation, such Seller has a written agreement with such Person with respect
thereto, and such Seller thereby has obtained ownership of, and such Seller is
the exclusive owner of, all such Intellectual Property by operation of Law or by
valid assignment.
  (m)           No
Seller has (i) transferred (or agreed to transfer) ownership of, or granted
(or agreed to grant) any exclusive license of or exclusive right to use, or
authorized the retention of any exclusive rights to use or joint ownership of,
any Intellectual Property that is or was Transferred IP or Licensed Intellectual
Property Right to any third Person or (ii) permitted any of its rights in
Transferred IP to lapse or enter into the public domain, except as identified in
Section 2.10(m) of the
Disclosure Schedule.
  (n)           All
Transferred IP was written and created solely by either (i) employees of
Sellers acting within the scope of their employment who have validly and
irrevocably assigned all of their rights, including all Intellectual Property
Rights therein, to Seller IP, or to another Seller and such other Seller has
subsequently assigned all such Intellectual Property to Seller IP or
(ii) third Persons who have validly and irrevocably assigned all of their
rights, including all Intellectual Property Rights therein, to Seller IP, or
another Seller, and such other Seller has subsequently assigned all such
Intellectual Property to Seller IP, and no such third Person owns or has or has
retained any rights to any such Transferred IP, except as stated in Section 2.10(k) of the
Disclosure Schedule.
  (o)           Other
than the Open Source Materials listed in Section 2.10(r)of the
Disclosure Schedule and any Shrink-Wrap Agreements, Section 2.10(o)(i) of the
Disclosure Schedule lists all Contracts (other than any “Intercompany-Licenses”
or “NDAs”) pursuant to which any Seller has been granted or has otherwise
obtained any right or license to any Seller Intellectual Property (“Inbound-Licenses”).  Section 2.10(o)(ii) of
the Disclosure Schedule lists all Contracts (other than any
“Intercompany-Licenses” or “NDAs”) pursuant to which any Seller has granted, or
has otherwise provided, any right or license to any Transferred IP (“Outbound-Licenses”).  Section 2.10(o)(iii)of
the Disclosure Schedule lists all Contracts (other than any Outbound-Licenses or
“NDAs”) between or among any Sellers with respect to any Transferred IP (“Intercompany-Licenses”). Section 2.10(o)(iv)of
the Disclosure Schedule lists all non-disclosure agreements entered into in
Ordinary Course of Business by any Seller with respect to any Transferred IP
(“NDAs”).
  19
   (p)  No Seller is in
breach of, nor has any Seller failed to perform under, any Contracts relating to
the Seller Intellectual Property (“IP Contracts”) and, to the
Knowledge of Sellers, no other party to any such IP Contract is in breach
thereof.  There are no disputes regarding the scope of or performance
under such IP Contracts including with respect to any payments to be made or
received by any Seller thereunder. Except as set forth in Section 2.10(p)of the
Disclosure Schedule, all such IP Contracts that are Assumed Contracts will
continue in full force and effect and to the benefit of Buyer Parties after the
Acquisition Transactions without the need for the consent by or other approval
of any Person.  The consummation of the Acquisition Transactions and
the other transactions contemplated hereby and thereby will neither violate nor
result in the breach of any IP Contract with respect to the confidential
information of a third Person.  The consummation of the transactions
contemplated in this Agreement will neither violate nor result in the breach,
modification, termination or suspension of (or give the other party thereto the
right to cause any of the foregoing) any such Assumed Contracts and, following
the Closing, Buyer Parties will be permitted to exercise all of the applicable
Seller’s rights and receive all of such Seller’s benefits (including payments)
under such Assumed Contracts to the same extent that the relevant Seller would
have been able to had the transactions contemplated by this Agreement not
occurred and without the payment of any additional amounts or consideration
other than the ongoing fees, royalties or other payments which the relevant
Seller would otherwise have been required to pay pursuant to the terms of such
Assumed Contracts had the transactions contemplated by this Agreement not
occurred.
  (q)           The
Open Source Materials listed in Section 2.10(r)(i) of the
Disclosure Schedule, Shrink-Wrap Agreements, the Inbound-Licenses, Licensed
Intellectual Property Rights and the Transferred IP constitute all of the
Intellectual Property used in, held for, relating to, necessary for, otherwise
benefiting, or would be infringed by the operation of, the Business (provided, however, with
respect to Patent rights of such third Persons, such representation is made to
the Knowledge of the Sellers).  Except as set forth in Section 2.10(o)of the
Disclosure Schedule, no Transferred IP is subject to any Contract pursuant to
which any Person has been granted, received or otherwise obtained any right or
license with respect thereto.
  (r)           Except
as set forth on Section 2.10(r)(i) of the
Disclosure Schedule, no Technology that constitutes Open Source Materials, or
any modification or derivative thereof, was used in, incorporated into,
integrated or bundled with any Transferred IP, or incorporated in or used in the
development or compilation of any Transferred IP or otherwise distributed or
offered to be distributed by any Seller Party.  Section 2.10(r)(ii) sets forth
a list of all Open Source that is included in, or provided or distributed or
offered to be distributed with or as any Transferred IP and for each use of Open
Source: (i) a description of the functionality of the Open Source, (ii) the
applicable license terms, (iii) the applicable Transferred IP, and (iv) the
copyright holder of such Open Source.  Except as set forth on Section 2.10(r)(iii) of
the Disclosure Schedule, no Technology of a third Person that is Open Source
Material, or any modification or derivative thereof, was used in, incorporated
into, integrated or bundled with any Transferred IP, or incorporated in or used
in the development or compilation of any Transferred IP or otherwise distributed
by any Seller Party.
  (s)           No
third Person that has licensed Seller Intellectual Property to any Seller
(i) has ownership rights or license rights to improvements or derivative
works made thereto by
  20
   such
Seller in Transferred IP and (ii) will have any right of termination,
cancellation or modification under any such license that is an Assumed Contract
as a result of this Agreement or the transactions contemplated hereby, except as
identified in Section
2.10(s) of the Disclosure Schedule.
  (t)           Section 2.10(t) of the
Disclosure Schedule lists all Assumed Contracts between any Seller, on the one
hand, and any other Person, on the other hand, wherein or whereby such Seller
agreed to, or assumed, any obligation or duty to warrant, indemnify, reimburse,
hold harmless, guaranty or otherwise assume or incur any obligation or Liability
or provide a right of rescission with respect to the infringement or
misappropriation of Intellectual Property Rights.
  (u)           The
operation of the Business with respect to the Purchased Assets and the Licensed
Intellectual Property Rights, has not infringed or misappropriated in violation
of Law, does not infringe or misappropriate in violation of Law, and will not
infringe or misappropriate in violation of Law when conducted by Buyer Parties
following the Closing, any Intellectual Property Rights (provided, however, with
respect to Patents of third Persons only, such representation is made to the
Knowledge of Sellers) of any Person, violate any right of any Person (including
any right to privacy or publicity), or constitute unfair competition or trade
practices under the Laws of any jurisdiction.  No Seller has received
notice from any Person claiming that such operation or any act, any Transferred
IP or the operation of the Business with respect to the Purchased Assets and the
Licensed Intellectual Property Rights, has infringed or misappropriated, or
infringes or misappropriates, or will infringe or misappropriate, any
Intellectual Property Rights of any Person or constitutes unfair competition or
trade practices under the Laws of any jurisdiction (nor do Seller Parties have
Knowledge of any basis therefor).  Except as set forth in Section 2.10(u) of the
Disclosure Schedule, no Seller has made any claim or allegation, or provided any
third Person any notice of infringement, with respect to infringement or
misappropriation of any Transferred IP.
  (v)           Neither
this Agreement nor the transactions contemplated by this Agreement, including
the assignment to Buyer Parties of any Assumed Contracts, will because of any
Contract to which any Seller Party is or was bound, result in: (i) any
Buyer Party granting to any third Person any right to or with respect to any
Intellectual Property Rights owned by, or licensed to, it, (ii) any Buyer
Party, being bound by or subject to, any exclusivity obligations, non-compete or
other restriction on the operation or scope of its business, or (iii) any
Buyer Party being obligated to pay any royalties or other amounts to any third
Person in excess of those payable by it in the absence of this Agreement or the
transactions contemplated hereby, except as identified in Section 2.10(v) of the
Disclosure Schedule. Following the Closing, Buyer Parties will have and be
permitted to exercise all of Seller Parties’ rights under the Transferred IP
(and will have the same rights with respect to the Intellectual Property of
third Persons included in the Transferred IP) to the same extent that Seller
Parties would have had, and been able to exercise, had this Agreement, and any
other contracts, documents and instruments to be executed and delivered after
the date hereof, not been entered into, and the Transactions not
occurred.
  (w)           Sellers
have taken all commercially reasonable steps to protect the confidential
information and trade secrets of the Business or otherwise included in
the
  21
   Transferred
IP. To the Knowledge of Sellers, there has been no misappropriation or
unauthorized disclosure of any Trade Secret included in the Transferred IP (or
claimed or understood to be so included), or breach of any obligations of
confidentiality with respect to the Transferred IP.
  (x)           Without
limiting the foregoing, (i) each of Seller IP and Seller R&D require
each of its employees to execute proprietary information, confidentiality and
assignment agreements substantially in such Seller Parties’ standard form for
employees (a copy of which is attached as Schedule2.10(x)(i) (the “EmployeeProprietary Information
Agreement”)), (ii) each of Seller IP and Seller R&D require each
of its consultants and contractors to execute a consulting agreement containing
proprietary information, confidentiality and assignment provisions substantially
in such Seller Parties’ standard form for consultants or contractors (a copy of
which is attached as Schedule 2.10(x)(ii) (the
“Consultant Proprietary
Information Agreement”)) and (iii) all current and former employees,
consultants and contractors of Seller IP and Seller R&D (and previous owners
of the Transferred IP) have executed an Employee Proprietary Information
Agreement or a Consultant Proprietary Information Agreement, as
appropriate.
  (y)           No
Transferred IP, or to the Knowledge of Sellers, no Licensed Intellectual
Property Rights, are subject to any outstanding decree, order, judgment or
settlement agreement or stipulation.
  (z)           No
government funding, facilities or resources of a university, college or other
educational institution or research center or funding from third Persons was
used in the development of the Transferred IP and no Governmental or Regulatory
Body, university, college, other educational institution or research center has
any claim, or given notice or proceeded against any Seller in respect of any
claim or right in or to Transferred IP.
  (aa)           No
current or former Employee, consultant or independent contractor of any Seller
who was involved in, or who contributed to, the creation or development of any
Transferred IP, has performed services for the government, a university, college
or other educational institution, or a research center, during a period of time
during which such Employee, consultant or independent contractor was also
performing services for Sellers relating to, necessary for, or otherwise
benefiting the Business.
  (bb)           No
Transferred IP that is Software, and to the Knowledge of Sellers, no other
Seller Intellectual Property that is Software  contains any “back
door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” “worm,”
“spyware” or “adware” (as such terms are commonly understood in the software
industry) or any other code designed or intended to have, or capable of
performing or facilitating, any of the following functions: (i) disrupting,
disabling, harming, or otherwise impeding in any manner the operation of, or
providing unauthorized access to, a computer system or network or other device
on which such code is stored or installed, or (ii) compromising the privacy or
data security of a user or damaging or destroying any data or file without the
user’s consent.
  22
   (cc) The Transferred IP is
not subject to any obligations or restrictions in connection with any
standard-setting organizations, industry bodies and other standards-related
activities in which any Seller Party has participated.
  (dd)           There
have been, and are, no claims asserted against any Seller related to the
Transferred IP.
  (ee)           Neither
Sellers nor any other Person acting on their behalf has disclosed, delivered or
licensed to any Person, agreed to disclose, deliver or license to any Person, or
permitted the disclosure or delivery to any escrow agent or other Person of, any
Business Source Code.  No event has occurred, and to the Knowledge of
Sellers, no circumstance or condition exists, that (with or without notice or
lapse of time, or both) will, or would reasonably be expected to, result in the
disclosure or delivery by any Seller, or any Person acting on its behalf to any
Person of any Business Source Code.
  2.11           Agreements,
Contractsand
Commitments
  (a)           The
Purchased Assets are not subject to any of the following:
  (i)      any
employment, independent contractor or consulting agreement, Contract or
commitment with an employee, independent contractor, individual consultant or
salesperson (in all cases in other than Seller IP’s or Seller R&D’s standard
form), or any consulting or sales agreement, contract, or commitment with a firm
or other organization;
  (ii)      any
fidelity or surety bond or completion bond;
  (iii)     any
lease of personal property;
  (iv)    
any agreement of indemnification or guaranty;
  (v)      any
Contract involving future payments or that requires the payment of
royalties;
  (vi)     any
Contract relating to the disposition or acquisition of assets (tangible or
intangible) or properties, or any interest in any Person;
  (vii)    any
mortgages, indentures, guarantees, loans or credit agreements, security
agreements or other Contracts relating to the borrowing of money, the extension
of credit or the continuing or future grant of any Lien;
  (viii)   any
outstanding purchase order or Contract for the purchase of materials or services
involving in excess of $10,000 individually or $50,000 in the
aggregate;
  (ix)     any
Contract containing covenants or other obligations granting or containing any
current or future commitments regarding exclusive rights,
non-competition,
  23
   “most
favored nations,” restriction on the operation or scope of its businesses or
operations, or similar terms;
  (x)      any
dealer, distribution, marketing, development or joint venture
agreement;
  (xi)     any
sales representative, original equipment manufacturer, manufacturing, value
added, marketing, remarketer, reseller, or independent software vendor,
distribution or other agreement;
  (xii)    any
Contract with any customer of Seller IP, Seller R&D or the
Business;
  (xiii)   any
Contract between or among Seller IP or Seller R&D, on the one hand, and any
Seller (other than Seller IP or Seller R&D), on the other hand;
  (xiv)   any
agreement, Contract or commitment that obligates Seller IP, Seller R&D or
the Business to provide future deliverables to any Person including, without
limitation, licenses to Transferred IP or the performance of
services;
  (xv)   
any Contract that restricts or prohibits Seller IP or Seller R&D from hiring
or soliciting for hire any individual to perform employment or consulting
services for Seller IP, Seller R&D or the Business; or
  (xvi) 
 any Contract that does not have a limitation to liability arising from
direct damages.
  (b)           Each
Assumed Contract is a valid and binding agreement, enforceable against each of
the parties thereto in accordance with its terms and is in full force and
effect, and each Assumed Contract will continue to be in full force and effect
following the Closing.  Each Seller is in compliance withand has not breached,
violated or defaulted under, or received notice that it has breached, violated
or defaulted under, any of the terms or conditions of any such Contract, nor to
the Knowledge of Seller Parties, is any party obligated pursuant to any such
Contract subject to any breach, violation or default thereunder, nor does any
Seller Party have Knowledge of any event that with the lapse of time, giving of
notice or both would constitute such a breach, violation or default. True and
complete copies of each Assumed Contract have been Made Available to Buyer
Parties.
  (c)           Section 2.11(c) of the
Disclosure Schedule sets forth all necessary consents, waivers and approvals of
parties to any Assumed Contracts as are required thereunder in connection with
the Acquisition Transactions or the other transactions contemplated by this
Agreement or any Related Agreement.
  24
   2.12          
Interested Party Transactions
  No
Interested Party has, directly or indirectly, an interest in any entity which
furnishes or sells or licenses, services, products, Technology or Seller
Intellectual Property that is furnished or sold that is required by the terms of
any Assumed Contract or to use or own the Purchased Assets.
  2.13           Governmental
Authorization
  Each
consent, license, permit, grant or other authorization (i) pursuant to
which Seller IP or Seller R&D currently operates or holds any interest in
any of the Purchased Assets, or (ii) which is required for the holding of
any Purchased Assets (collectively, “Business Authorizations”) has
been issued or granted to such Seller Party.  All material Business
Authorizations are in full force and effect and constitute all the Business
Authorizations required for Seller Parties to hold their interest in the
Purchased Assets.
  2.14           Litigation
  There is
no action, suit, claim, investigation or proceeding of any nature pending, or to
the Knowledge of Seller Parties, threatened, against any Seller or any of its
respective officers or directors related to the Purchased Assets, nor to the
Knowledge of Seller Parties is there any reasonable basis therefor.
  2.15           Environmental
Matters
  No Seller
Party has knowledge of any fact or circumstance which could result in any
environmental liability which could reasonably be expected to result in any
Liability on any Buyer Party related to the Purchased Assets.  Seller
IP and Seller R&D have complied with all environmental disclosure
obligations imposed by applicable Law with respect to the Acquisition
Transactions.
  2.16           Brokers’ and
Finders’ Fees
  Except as
set forth in Section
2.16 of the Disclosure Schedule, no Seller has incurred, or will incur,
directly or indirectly, any Liability for brokerage or finders’ fees or agents’
commissions, fees related to investment banking or similar advisory services or
any similar charges in connection with this Agreement, the Related Agreements,
the Acquisition Transactions or any other transaction contemplated hereby and
thereby for which any Buyer Party is or could be liable.
  2.17           Employee Benefit
Plans and Compensation.
  (a)           Definitions.  For
all purposes of this Agreement, the following terms shall have the following
respective meanings:
  “COBRA” shall mean the U.S.
Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended.
  25
   “DOL” shall mean the United
States Department of Labor.
  “Employee Agreement” shall mean
each management, employment, severance, consulting, relocation, repatriation,
expatriation, visa, work permit or other agreement, or contract (including any
other agreement providing for compensation or benefits) between Seller Parent or
any of its affiliates and any Transferred Employee.
  “ERISA” shall mean the U.S.
Employee Retirement Income Security Act of 1974, as amended.
  “ERISA Affiliate” shall mean any
other Person under common control with Seller IP or Seller R&D,
respectively, within the meaning of Section 414(b), (c), (m) or (o) of the
Code, and the regulations issued thereunder.
  “FMLA” shall mean the U.S.
Family Medical Leave Act of 1993, as amended.
  “HIPAA” shall mean the U.S.
Health Insurance Portability and Accountability Act of 1996, as
amended.
  “IRS” shall mean the United
States Internal Revenue Service.
  “PBGC” shall mean the United
States Pension Benefit Guaranty Corporation.
  “Pension Plan” shall mean each
Seller Employee Plan that is an “employee pension benefit plan,” within the
meaning of Section 3(2) of ERISA.
  “Seller Employee Plan” shall
mean any plan, program, policy, practice, contract, agreement or other
arrangement providing for compensation, severance, termination pay, deferred
compensation, retirement benefits, performance awards, stock or stock-related
awards, fringe benefits or other employee benefits or remuneration of any kind,
whether written, unwritten or otherwise, funded or unfunded, including each
“employee benefit plan,” within the meaning of Section 3(3) of ERISA which
is or has been maintained, contributed to, or required to be contributed to, by
Seller IP, Seller R&D or any ERISA Affiliate for the benefit of any
Transferred Employee, or with respect to which Seller IP or Seller R&D has
or may have any Liability or obligation.
  (b)           Schedule.  Section 2.17(b)(i) of the
Disclosure Schedule contains an accurate and complete list of the Transferred
Employees.  To the Knowledge of Seller Parties, no employee listed on
Section 2.17(b)(i) of
the Disclosure Schedule intends to terminate his or her employment for any
reason other than in connection with and as contemplated by this Agreement and
the Acquisition Transactions.  Section 2.17(b)(ii)of the
Disclosure Schedule contains an accurate and complete list of all Persons that
have a consulting, independent contractor or advisory relationship with Seller
IP or Seller R&D.
  
  26
   (c)           
Documents.  Seller
Parties have Made Available to Buyer Parties correct and complete copies of all
documents embodying each Seller Employee Plan and each Employee Agreement
including all amendments thereto and all related trust documents.
  (d)           Certain
Transferred Employee Matters.  As to any Transferred Employee
or as to any matter which may impose any Liability on any Buyer
Party:
  (i)      No Pension
Plans.  None of Seller IP, Seller R&D or any current or
past ERISA Affiliate has ever maintained, established, sponsored, participated
in, or contributed to, any Pension Plans subject to Title IV of ERISA or
Section 412 of the Code.
  (ii)      Collectively
Bargained, Multiemployer and Multiple-Employer Plans.  At no
time has Seller IP, Seller R&D or any current or past ERISA Affiliate
contributed to or been obligated to contribute to any Pension Plan, which is a
“Multiemployer Plan,” as defined in Section 3(37) of
ERISA.  Neither Seller IP, Seller R&D nor any ERISA Affiliate has
at any time ever maintained, established, sponsored, participated in or
contributed to any multiple employer plan or to any plan described in
Section 413 of the Code.
  (iii)     No
Post-Employment Obligations.  No Seller Employee Plan or
Employee Agreement provides, or reflects or represents any Liability to provide,
retiree life insurance, retiree health or other retiree employee welfare
benefits to any Person for any reason, except as may be required by COBRA or
other applicable statute, and no Seller Party has ever represented, promised or
contracted (whether in oral or written form) to any Employee (either
individually or to Employees as a group) or any other Person that such
Employee(s) or other Person would be provided with retiree life insurance,
retiree health or other retiree employee welfare benefits, except to the extent
required by statute.
  (iv)   Effect of
Transaction.  Except as set forth in Section 2.17(d)(iv) of the
Disclosure Schedule, neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby or any termination of
employment or service in connection therewith will (i) result in any
payment (including severance, golden parachute, bonus or otherwise), becoming
due to any Transferred Employee, (ii) result in any forgiveness of
indebtedness, (iii) increase any benefits otherwise payable to any
Transferred Employee or (iv) result in the acceleration of the time of
payment or vesting of any such benefits except as required under
Section 411(d)(3) of the Code.
  (v)      Section 280G;
409A.  There is no agreement, plan, arrangement or other
contract covering any Transferred Employee that, considered individually or
considered collectively with any other such agreements, plans, arrangements or
other contracts, will, or could reasonably be expected to, give rise directly or
indirectly to the payment of any amount that would be characterized as a
“parachute payment” within the meaning of Section 280G(b)(1) of the
Code.  There is no agreement, plan, arrangement or other contract by
which any Seller Party is bound to compensate any Transferred Employee for
excise taxes paid pursuant to Section 4999 of the Code.
  (vi)     Employment
Matters.  Each of Seller IP and Seller R&D is in compliance
with all applicable Laws respecting employment, employment practices, terms
and
  27
   conditions
of employment, worker classification, tax withholding, prohibited
discrimination, equal employment, fair employment practices, meal and rest
periods, immigration status, employee safety and health, wages (including
overtime wages), compensation, and hours of work, and in each case, with respect
to employees: (i) has withheld and reported all amounts required by Law or
by agreement to be withheld and reported with respect to wages, salaries and
other payments to employees, (ii) is not liable for any arrears of wages,
severance pay or any Taxes or any penalty for failure to comply with any of the
foregoing, and (iii) is not liable for any payment to any trust or other
fund governed by or maintained by or on behalf of any Governmental or Regulatory
Body, with respect to unemployment compensation benefits, social security or
other benefits or obligations for employees (other than routine payments to be
made in the Ordinary Course of Business and consistent with past
practice).  There are no actions, suits, claims or administrative
matters pending, threatened or reasonably anticipated against Seller IP or
Seller R&D or any of the employees relating to any employee, Employee
Agreement or Seller Employee Plan.  There are no pending or, to Seller
Parties’ knowledge, threatened, or reasonably anticipated claims or actions
against Seller IP or Seller R&D or any trustee of Seller IP or Seller
R&D under any worker’s compensation policy or long term disability
policy.  None of Seller IP or Seller R&D is a party to a
conciliation agreement, consent decree or other agreement or order with any
foreign, federal, state or local agency or governmental authority with respect
to employment practices.  The services provided by each employee is
terminable at will and any such termination would result in no Liability to
Seller IP or Seller R&D.
  (e)           No Interference
or Conflict.  To the Knowledge of Seller Parties, no
Transferred Employee is obligated under any contract or agreement or subject to
any Order of any court or administrative agency that would interfere with such
Person’s efforts to promote the interests of or interfere with the Business as
presently conducted by Seller Parties.  Neither the execution nor
delivery of this Agreement, nor any activity of such Transferred Employees in
connection with the Business as presently conducted by Seller Parties will
conflict with or result in a breach of the terms, conditions, or provisions of,
or constitute a default under, any contract or agreement under which any of such
Transferred Employees is bound at the effective time of the
Closing.
  2.18           Insurance
  Section 2.18of the
Disclosure Schedule lists all insurance policies and fidelity bonds covering the
Purchased Assets.  There is no claim relating to the Purchased Assets
pending under any of such policies or bonds.  All premiums due and
payable under all such policies and bonds have been paid (or if installment
payments are due, will be paid if incurred prior to the Closing) and Seller
Parties are otherwise in compliance in all respects with the terms of such
policies and bonds.  Such policies and bonds are in full force and
effect.
  2.19           Compliance with
Laws
  Sellers
have complied with in all material respects, are not in material violation of,
and have not received any notices of material violations with respect to, any
Laws as they relate to the Purchased Assets.
  
  28
   2.20       
Export Control Laws
  To the
Knowledge of Sellers, with respect to the Purchased Assets, Sellers have at all
times complied with (i) all applicable U.S. export and reexport controls,
including the United States Export Administration Act and Regulations and
Foreign Assets Control Regulations and (ii) all other applicable
import/export controls in other countries in which Seller Parties conduct
business as they relate to the Purchased Assets.
  2.21           Solvency
  No Seller
Party is now insolvent and will not be rendered insolvent by any of the
transactions contemplated by this Agreement.  As used in this Section 2.21, “insolvent”
means that the sum of the debts and other probable Liabilities of such Seller
Party exceeds the present fair saleable value of such Seller Party’s
assets.
  2.22          Valid
Title
  Seller
Parties have good, valid and marketable title to, a valid leasehold interest in,
or a valid license or right to use, all of the Purchased Assets, free and clear
of all Liens.  Upon Closing, Buyer Parties will have good, valid and
marketable title to, a valid leasehold interest in, or a valid license or right
to use, the Purchased Assets, free and clear of all Liens.
  2.23           Corrupt
Practices
  No Seller
Party nor to Seller Parties’ Knowledge any of their officers, directors,
employees, agents or representatives, as related to the operation of the
Business, have directly or indirectly taken any action which would cause it to
be in violation of the Foreign Corrupt Practices Act of 1977, as amended, or any
rules or regulations thereunder, used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity, made any unlawful payment to foreign or domestic government
officials or employees or made any bribe, rebate, payoff, influence payment,
kickback or other similar unlawful payment.  No Seller Party nor to
Seller Parties’ Knowledge, any of their officers, directors, employees, agents
or representatives, as related to the operation of the Business, has directly or
indirectly taken any action which would cause it to be in violation of the Money
Laundering Directive 2005/60/EC or Directive 2006/70/EC of the European
Parliament.
  2.24           Complete Copies
of Materials
  Seller
Parties have Made Available to Buyer Parties all documents listed in the
Disclosure Schedule.
  2.25           Representations
Complete
  None of
the representations or warranties made by Seller Parties (as modified by the
Disclosure Schedule) in this Agreement, and none of the statements made in any
exhibit, schedule or certificate furnished by Seller Parties pursuant to this
Agreement contains, or will contain, any untrue statement of a material fact, or
omits or will omit to state any material fact
  29
   necessary
in order to make the statements contained herein or therein, in the light of the
circumstances under which made, not misleading.
  ARTICLE III
  
  REPRESENTATIONS
AND WARRANTIES OF BUYER PARTIES
  Buyer Parties hereby represent and warrant to Seller Parties as
follows:
  3.1           Organization;
Power
  Buyer
Parent is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Delaware.  Buyer IP is a company with
limited liability, duly incorporated, validly existing and in good standing
under the laws of the Cayman Islands.  Buyer R&D is a limited
liability company duly formed, validly existing and in good standing under the
laws of the State of Delaware.  Each Buyer Party has the corporate or
other power to own its properties and to carry on its business as now being
conducted and is duly qualified or licensed to do business and is in good
standing in each jurisdiction in which the failure to be so qualified or
licensed would have a material adverse effect on such Buyer Party.
  3.2           Authority
  Each
Buyer Party has all requisite corporate or other power and authority to enter
into this Agreement and any Related Agreements to which it is a party and to
consummate the Acquisition Transactions and the other transactions contemplated
hereby and thereby.  The execution and delivery of this Agreement and
any Related Agreements to which it is a party and the consummation of the
Acquisition Transactions and the other transactions contemplated hereby and
thereby have been duly authorized by all necessary corporate or other action on
the part of each Buyer Party.  This Agreement and any Related
Agreements to which any Buyer Party is a party have been duly executed and
delivered by such Buyer Party and constitute the valid and binding obligations
of such Buyer Party, enforceable against each Buyer Party in accordance with
their terms.
  3.3           Conflicts
  The
execution, delivery and performance of this Agreement and any Related Agreements
to which any Buyer Party is a party, and the consummation of the Acquisition
Transactions and the other transaction contemplated hereby and thereby, will
not:
  (a)           result
in any Conflict under (1) the Certificate of Incorporation, Bylaws or other
organizational documents of any Buyer Party, (2) any Contract to which any
Buyer Party is a party that Buyer Parent has filed with the Securities and
Exchange Commission, (3) any Order to which any Buyer Party is a party or
by which any Buyer Party is bound or (4) any Law applicable to any Buyer
Party, except such violations, conflicts, breaches or defaults that would not
have a material adverse effect on Buyer Parties; or
  
  30
   (b)      assuming the truth and accuracy of the
representations and warranties made by Seller Parties, require the approval,
consent, authorization or act of, or the making by Buyer Parties of any
declaration, filing or registration with, any Governmental Body, except
for such approvals, consents, authorizations, declarations, filings or
registrations, the failure of which to be obtained or made would not materially
impair the ability of Buyer Parties to perform its obligations hereunder or
prevent the consummation of any of the transactions contemplated
hereunder.
  3.4           Consents
  Assuming
the truth and accuracy of the representation and warranty contained in Section 2.6, no consent,
waiver, approval, order or authorization of, or registration, declaration or
filing with, any Governmental or Regulatory Body, is required by or with respect
to Buyer Parties in connection with the execution and delivery of this Agreement
and any Related Agreements to which any Buyer Party is a party or the
consummation of the Acquisition Transactions and the other transactions
contemplated hereby and thereby, except for such consents, waivers,
approvals, orders, authorizations, registrations, declarations and filings
which, if not obtained or made, would not have a material adverse effect on
Buyer Parties.
  3.5           Adequacy of
Funds
  Buyer
Parties, collectively, currently have, and will at the Closing have, cash and
working capital available in an amount sufficient to fully fund the Acquisition
Transactions.
  3.6           Representations
Complete
  None of
the representations or warranties made by Buyer Parties in this Agreement, and
none of the statements made in any exhibit, schedule or certificate furnished by
Buyer Parties pursuant to this Agreement contains, or will contain, any untrue
statement of a material fact, or omits or will omit to state any material fact
necessary in order to make the statements contained herein or therein, in the
light of the circumstances under which made, not misleading.
  ARTICLE IV
  
  ADDITIONAL
AGREEMENTS
  4.1           Taking of
Necessary Action; Further Action; Access to Information
  (a)           If
at any time after the Closing, any further action is necessary or desirable to
carry out the purposes of this Agreement and the Related Agreements and to vest
Buyer Parties with full right, title and possession to all Purchased Assets,
Buyer Parties, Seller Parties and their respective officers and directors are
fully authorized in the name of their respective corporations or companies, as
the case may be, or otherwise to take, and will take, all such necessary or
desirable action in accordance with all applicable Laws including executing and
delivering such other agreements and instruments as may be necessary or
desirable in connection with the foregoing.
  
  31
   (b)         
From time to time after the date hereof, Seller Parent shall, and shall cause
its Subsidiaries and Affiliates to, execute and deliver such other instruments
of transfer and documents related thereto and take such other action as Buyer
Parties may reasonably request in order to effect the Asset Purchase and
effectively transfer to Buyer IP, and to place Buyer IP in possession and
control of, the Transferred IP (including all copies thereof), and to enable
Buyer IP to exercise and enjoy all rights and benefits with respect
thereto.  There may exist Transferred IP that, contrary to the intent
of this Agreement, any Related Agreement and the agreements entered into in
connection with this Agreement, that existed as of the date hereof and is
discovered to have been inadvertently retained by any Seller.  Seller
Parties and Buyer Parties shall, and shall cause their respective Subsidiaries
and Affiliates to, cooperate in good faith to promptly effect the transfer of
such Intellectual Property, to or by the appropriate party and shall not use the
determination that remedial actions need to be taken to alter the original
intent of Seller Parties and Buyer Parties with respect to the Intellectual
Property to be transferred to Buyer Parties. Without limiting the foregoing,
Seller Parties further agree to perform (or cause to be performed) all such
lawful acts and to execute (or cause to be executed) all such further
assignments and other lawful documents as may reasonably be necessary to
effectuate the assignment of, and to perfect and record the assignment of, the
Transferred IP to the Buyer Parties in the various jurisdictions and permit for
the orderly transition of the prosecution and maintenance of such Transferred IP
from Seller Parties to the Buyer Parties.  Such assistance shall
include, without limitation, Seller Parties providing: (a) a list of contact
information for all third Persons responsible for prosecuting and maintaining
the Transferred IP (“Counsel”); (b) a letter to all
such Counsel informing them of the change of ownership of the Transferred IP
from Seller Parties to Buyer Parties including language reasonably acceptable to
Buyer Parties informing and instructing such Counsel (i) to cooperate with the
Buyer Parties, (ii) that it is Buyer Parties’ desire to continue prosecution
uninterrupted with the assistance of such Counsel and that Seller Parties do not
object to such Counsel’s representation of Buyer Parties with respect to
prosecution of the Transferred IP, and (iii) that all further actions with
respect to the Transferred IP following Closing will be at the expense of the
Buyer Parties; (c) powers of attorney and powers to inspect or copy in forms
reasonably acceptable to Buyer Parties with respect to priority documents
relating to items of Transferred IP identified by Buyer Parties; and (d) the
re-execution of assignments in a form reasonably acceptable to Buyer Parties for
those items of Transferred IP identified by Buyer Parties, as required by local
law and practice.
  (c)           To
the fullest extent permitted under the applicable IP Contracts that are not
Assumed Contracts, from time to time after the date hereof, Seller Parent shall,
and shall cause its Subsidiaries and Affiliates and each of its and its
permitted Subsidiaries’ and Affiliates’ permitted successors and assigns to such
IP Contracts, to, promptly seek and obtain the return and protection from
disclosure and distribution all Transferred IP (including the tangible
embodiments of Trade Secrets and Copyrights); provided that where such prompt
return of such Transferred IP is not available pursuant to the terms of such IP
Contract, Seller Parent shall, and shall cause its Subsidiaries and Affiliates
and each of its and its permitted Subsidiaries’ and Affiliates’ permitted
successors and assigns to such IP Contracts to, take any and all actions
necessary to enforce the terms of such IP Contract on behalf of, and where
applicable, at the direction of Buyer Parties.  In addition, with
respect to IP Contracts that are not Assumed Contracts, Seller Parent shall, and
shall cause its Subsidiaries and Affiliates and each of its and its permitted
Subsidiaries’ and Affiliates’ permitted successors and assigns to such IP
Contracts,
  32
  to: (i)
not extend, or amend any terms thereof, or waive any rights with respect to the
Transferred IP thereunder, (ii) to the fullest extent permitted under the terms
of such IP Contracts, not renew or allow renewal thereof, without the prior
written permission of Buyer IP, and (iii) shall not assign or transfer such IP
Contracts with respect to any Transferred IP without the prior written
permission of Buyer IP.  Seller Parent shall, and shall cause its
Subsidiaries and Affiliates and each of its and its permitted Subsidiaries’ and
Affiliates’ permitted successors and assigns to such IP Contracts to provide
prompt notice to Buyer IP of any actual or suspected loss, unauthorized
disclosure or misappropriation of any such Transferred IP.
  (d)           At
any time after the Closing, upon request by Buyer Parent, Seller Parent shall,
and shall cause its Subsidiaries and Affiliates to, provide prompt access to
Buyer Parent to any and all prototypes done under a business arrangement that
are not confidential to the customer.  For purposes of Section 1.3(c) and this Section 4.1(d), the term
“prototypes” includes, without limitation, all hardware, test results and
reports, CNC code and process parameters for the MicroLens inserts and similar
Technology, and the assembly BOM.  At any time after the Closing, upon
request by Seller Parent, Buyer Parent shall, and shall cause its Subsidiaries
and Affiliates to, provide prompt access to Seller Parent to any and all
Transferred Know-How listed or described on Schedule II except for
invention disclosures and inventor notebooks related to the Transferred
Patents.
  4.2           Confidentiality
  Each of
the parties hereto hereby agrees that the information obtained pursuant to the
negotiation and execution of this Agreement or the effectuation of the
transactions contemplated hereby, except to the extent provided otherwise in the
License Agreement, shall be governed by the terms of the Nondisclosure Agreement
dated August 24, 2009 by and between Seller Parent and Buyer Parent (the “Confidentiality Agreement”),
which shall bind each of the other parties hereto as if they were a party to
such Confidentiality Agreement.  Each of the parties further agrees
that following Closing, all of the Transferred IP shall be considered the
Confidential Information of Buyer Parties, and Seller Parties agree to not use
or disclose the same and that Seller, on behalf of itself and its Affiliates,
and shall bind each of their respective successor and assigns in writing to,
irrevocably waive any rights to pursue any breach of Contract claim it may have
against any Transferred Employee to the extent that such Transferred Employee
utilizes Transferred IP and Licensed Intellectual Property in connection with
the operation of the business following Closing.  Seller Parties
acknowledge that Buyer Parent’s common stock is publicly traded and that any
information obtained by Seller Parties regarding Buyer Parties, including
information regarding this Agreement and the transaction contemplated hereby,
could be considered to be material non-public information within the meaning of
U.S. federal and state securities Laws.  Accordingly, Seller Parties
acknowledge and agree not to engage in any transactions in the Buyer Parent’s
common stock in violation of applicable securities Laws.
  4.3           Expenses
  All fees
and expenses incurred in connection with the Acquisition Transactions including
all financial advisory, consulting, and all other fees and expenses of third
parties (including any costs incurred to obtain consents, waivers or approvals
as a result of the
  33
   compliance
with the termshereof) incurred by a
party in connection with the negotiation and effectuation of the terms and
conditions of this Agreement and the transactions contemplated hereby (“Third Party Expenses”), shall
be the obligation of the respective party incurring such fees and
expenses.  Third Party Expenses shall also include any bonuses or
severance paid or to be paid to Employees in connection with the Acquisition
Transactions.
  4.4           Public
Disclosure
  Subject
to the provisions of the License Agreement, the parties acknowledge that each
party may issue a press release regarding the Acquisition Transactions, and each
party shall make such other public statements and disclosure regarding this
Agreement and the Acquisition Transactions in compliance with applicable
securities Laws and the rules of The NASDAQ Stock Market or any other securities
exchange applicable to such party.
  4.5           Tax
Matters
  (a)           Transfer Taxes
and Related Expenses.  Notwithstanding anything to the contrary
contained in this Agreement, Seller Parties and Buyer Parties shall share
equally any and all value-added, sales, use, transfer (including real property
gains or transfer), documentary, stamp duty, stamp, goods and services, excise,
recording and similar Taxes incurred in connection with the Acquisition
Transactions, as well as any notarial or other similar fees incurred by Seller
Parties or Buyer Parties in connection with this Agreement and the Acquisition
Transactions (“Transfer
Taxes”).
  (b)           Tax Reporting and
Returns; Responsibility for Taxes.
  (i)      Subject
to Section 4.5(b)(iii),
Seller Parties will be responsible for the preparation and filing of all Returns
of Seller Parties with respect to Seller Parties’ ownership or use of the
Purchased Assets attributable to taxable periods ending on or before the Closing
Date (including Returns required to be filed after the Closing Date), and such
Returns shall be true, complete and correct and prepared in accordance with
applicable law in all material respects.  Seller Parties will be
responsible for and will make all payments of Taxes shown to be due on such
Returns.
  (ii)      Buyer
Parties will be responsible for the preparation and filing of all Returns they
are required to file with respect to Buyer Parties’ ownership or use of the
Purchased Assets attributable to taxable periods beginning after the Closing
Date.  Such Returns shall be true, complete and correct and prepared
in accordance with applicable law in all material respects.  Buyer
Parties will be responsible for and will make all payments of Taxes shown to be
due on such Returns.
  (iii)    In
the case of any real or personal property taxes (or other similar Taxes)
attributable to the Purchased Assets for which taxes are reported on a Return
covering a period commencing before the Closing Date and ending thereafter (a
“Straddle Period Tax”), any
such Straddle Period Taxes shall be prorated between Buyer Parties and Seller
Parties on a
  34
   per diem
basis.  The party required by law to pay any such Straddle Period Tax
(the “Paying Party”) shall file the
Return related to such Straddle Period Tax within the time period prescribed by
law and shall timely pay such Straddle Period Tax.  To the extent any
such payment exceeds the obligation of the Paying Party hereunder, the Paying
Party shall provide the other party (the “Non-Paying Party”) with notice
of payment, and within ten (10) days of receipt of such notice of payment, the
Non-Paying Party shall reimburse the Paying Party for the Non-Paying Party’s
share of such Straddle Period Taxes.
  (c)           Cooperation.  To
the extent relevant to the Purchased Assets, each party shall (i) provide
the other with such assistance as may reasonably be required in connection with
the preparation of any Return and the conduct of any audit or other examination
by any taxing authority or in connection with judicial or administrative
proceedings relating to any liability for Taxes and (ii) retain and provide
the other with all records or other information that may be relevant to the
preparation of any Returns, or the conduct of any audit or examination, or other
proceeding relating to Taxes.  Seller Parties shall retain all
documents, including prior years’ Returns, supporting work schedules and other
records or information with respect to all sales, use and employment tax returns
and, absent the receipt by Seller Parties of the relevant tax clearance
certificates, shall not destroy or otherwise dispose of any such records for six
(6) years after Closing without the prior written consent of Buyer
Parent.
  4.6           Licensed
Intellectual Property Rights
  Sellers
hereby grant to Buyer IP an irrevocable, perpetual, worldwide, non-exclusive,
royalty-free, fully paid-up, transferable, right and license (including the
right to grant and authorize sublicenses, except (i) with respect to those
Patents of Seller Parties listed on Schedule 4.6-1 and (ii) as
provided below in this Section 4.6) to use, make, have made, import, sell any
and all products, services and technologies and to practice methods and
processes, copy, distribute, modify, make derivative works of (and distribute
such derivative works and underlying works), display, perform and or otherwise
exploit the Licensed Intellectual Property Rights (“Background
License”).  For the period beginning on the Closing Date and
ending twenty-one (21) months after the Closing Date, the foregoing license
excludes the right of Buyer IP to exercise the foregoing license for the benefit
of any of the entities listed on Schedule
4.6-2.  Based on the foregoing restriction on the Background
License and Buyer IP’s determination that such Background License may be
material to Buyer IP’s ability to offer a complete technology solution, and to
exploit the Transferred IP as contemplated by Buyer IP after the Closing,
including, but not limited to, the development and execution of a robust and
high quality licensing program around such Transferred IP, Buyer IP agrees that
neither it nor any of its Affiliates will directly offer or grant, or initiate
or participate in any discussion directly with any of the entities listed on
Schedule 4.6-2
regarding, any license or other rights to, including the right to use or
otherwise exploit, any of the Transferred IP by the entities listed on Schedule 4.6-2 until the
expiration of the restriction on the foregoing Background License with respect
to such entities.  For the avoidance of doubt, Buyer IP’s restriction
on its direct exploitation of the Transferred IP with respect to the entities
listed on Schedule 4.6-2
as described above shall not be interpreted, argued or otherwise deemed to apply
to any other Technology, Intellectual Property Rights, assets or property of any
kind owned by Buyer Parties before, on or after the Closing.  Seller
shall have all rights at law and in equity based on Buyer IP’s breach of
the
  35
   foregoing
restriction on Buyer IP’s exploitation or otherwise of the Transferred IP as
described above with respect to any of the entities listed on Schedule 4.6-2.
  4.7           Right of First
Refusal
 
 In the
event that within twelve (12) months of the Closing Date, a Buyer Party proposes
to sell all of the Purchased Assets (the “Offered Assets”) to a third
party in a cash transaction, then such Buyer Party shall deliver to Seller
Parent a written notice (the “Transfer Notice”) indicating
that a Buyer Party proposes to transfer the Offered Assets, the cash purchase
price for which such Buyer Party proposes to transfer the Offered Assets and the
name of the proposed buyer for the Offered Assets.  For a period of
fourteen (14) days (the “Exercise Period”) after the
date on which the Transfer Notice is deemed to have been delivered to Seller
Parent, Seller Parent shall have the right to purchase all but not less than all
of the Offered Assets on the terms and conditions set forth in Transfer Notice
(the “Right of First
Refusal”).  In order to exercise its Right of First Refusal
hereunder, Seller Parent must deliver a written notice to Buyer Parent within
the Exercise Period regarding its exercise of its Right of First Refusal (the
“Exercise
Notice”).  If Seller Parent elects to exercise its Right of
First Refusal by delivering an Exercise Notice to Buyer Parent within the
Exercise Period, then Seller Parent and the applicable Buyer Parties shall
effect the purchase of the Offered Assets within thirty (30) days after the
delivery of the Exercise Notice, including the payment of the cash purchase
price by Seller Parent in the manner and at the time identified by such Buyer
Party, and the delivery by such Buyer Party of the Offered Assets to Seller
Parent pursuant to transfer documents reasonably satisfactory to each of Seller
Parent and such Buyer Party.  If Seller Parent indicates that it does
not wish to exercise its Right of First Refusal during the Exercise Period or
does not deliver an Exercise Notice within the Exercise Period, then such Buyer
Party shall be free to transfer the Offered Assets in accordance with the terms
set forth in the Transfer Notice.  Notwithstanding the foregoing, this
Right of First Refusal shall not apply with respect to any Purchased Assets
proposed to be transferred in connection with, or as part of any Change of
Control applicable to Buyer Parent.  For purposes of this Section 4.7,
(a) “Capital Stock”
means (i) in the case of a corporation, corporate stock; (ii) in the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock; (iii) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership interests; or
(iv) any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of assets of,
the issuing Person; (b) “Change
of Control” means an event that shall be deemed to have occurred upon the
occurrence of any of the following (i) any Person or group (other than Buyer
Parent, any of its Subsidiaries or any employee benefit plan of Buyer Parent or
any of its Subsidiaries) files a Schedule 13D or Schedule TO, or any
successor schedule, form or report under the United States Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder,
as in effect from time to time, disclosing, or Buyer Parent otherwise becomes
aware, that such Person is or has become the beneficial owner, directly or
indirectly, of shares of Buyer Parent’s Voting Stock representing 50% or more of
the total voting power of all outstanding classes of Buyer Parent’s Voting Stock
or has the power, directly or indirectly, to elect a majority of the members of
the board of directors of Buyer Parent; (ii) Buyer Parent consolidates with, or
merges with or into, another Person or Buyer Parent sells, assigns, conveys,
transfers, leases or otherwise disposes of all or substantially all of Buyer
Parent’s
  36
   assets,
or any Person consolidates with, or merges with or into, Buyer Parent, in any
such event other than pursuant to a transaction in which (a) the common stock is
not changed or exchanged except to the extent necessary to reflect a change in
the jurisdiction of organization or (b) the Persons that beneficially
owned, directly or indirectly, shares of Buyer Parent’s Voting Stock immediately
prior to such transaction beneficially own, directly or indirectly, shares of
Voting Stock representing a majority of the total voting power of all
outstanding classes of Voting Stock of the surviving or transferee Person; or
(iii) the adoption of any plan relating to the liquidation or dissolution of
Buyer Parent; and (c) “Voting
Stock” means any class or classes of Capital Stock or other interests
then outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of the board of directors, managers or
trustees of a Person.
  4.8           Covenant Not to
Sue
  Seller
Parties hereby agree and covenant that Seller Parties shall not, and shall cause
their Subsidiaries and Affiliates to not, assert any claim, suit or other action
against any Buyer Party, its Subsidiaries or Affiliates regarding any
solicitation, conduct of business or other attempt to do business with
(including, without limitation, entering into any written or oral option,
contract, agreement, commitment, arrangement or understanding with) any
customer, supplier, distributor or other Person with whom any Seller Party, its
Subsidiaries or Affiliates have a business relationship with respect to products
or services which compete in whole or in part with the products or services of
Seller Parties, their Subsidiaries and Affiliates anywhere in the world, or any
inducement or attempt to induce any such Person to cease doing business with or
reduce or change the terms of its business with or otherwise interfere with the
relationship of such Person with any Seller Party, its Subsidiaries or
Affiliates; provided,
however, that the covenant set forth in this Section 4.8 shall not apply to
any Person specified on Schedule 4.6-2.
  4.9           Release of
Transferred Employees
  Each
Seller Party hereby releases and discharges each Transferred Employee, during
the term of such Transferred Employee’s employment with Buyer Parent or an
Affiliate of Buyer Parent, from Sections 3.1 (with respect to non-competition),
3.2 (with respect to non-interference) and 3.3 (with respect to
non-solicitation) of the applicable Fair Competition Agreement and any similar
provisions in any other applicable Contract or Seller Employee Plan entered into
between a Seller Party and each Transferred Employee; provided, however, that to
the extent that any Transferred Employee ceases to be employed by Buyer Parent
or an Affiliate of Buyer Parent within 12 months of the Closing Date, such
Transferred Employee shall remain subject to its obligations under Section 3.1
(with respect to non-competition) of the applicable Fair Competition Agreement
and any similar provision in any other applicable Contract or Seller Employee
Plan entered into between a Seller Party and such Transferred Employee as
described therein.
  4.10           Non-Solicitation
  Notwithstanding
the provisions of Section
4.9, for a period of eighteen (18) months following the Closing Date,
Buyer Parties hereby agree that they shall not and shall cause
their
  37
   Subsidiaries
and Affiliates to not, directly or indirectly, without the prior written consent
of Seller Parent, solicit to employ or otherwise engage, or induce or attempt to
induce to leave the employ of Seller Parties, their Subsidiaries or Affiliates,
any individual who was an employee of Seller Parties, their Subsidiaries or
Affiliates on the Closing Date; provided, however, that the
limitations set forth in this Section 4.10 shall not apply
to (i) advertisements placed by Buyer Parties, their Subsidiaries or Affiliates
in any publications or other documentation available to the general public with
respect to employment or contracting opportunities with Buyer Parties, their
Subsidiaries or Affiliates; or (ii) the participation of Buyer Parties, their
Subsidiaries or Affiliates or of any firm, partnership, corporation, entity or
business providing services to Buyer Parties, their Subsidiaries or Affiliates
in classified or on-line job postings or job fairs and like events not directed
at the employees of Seller Parties, their Subsidiaries or
Affiliates.
  ARTICLE V
  
  CONDITIONS
TO THE ASSET PURCHASE
  5.1           Conditions to
Obligations of Each Party to Effect the Asset Purchase
  The
respective obligations of Seller Parties and Buyer Parties to effect the Asset
Purchase shall be subject to the satisfaction or waiver (as applicable), at or
prior to the Closing, of the following conditions:
  (a)           No Order;
Illegality.  No Governmental or Regulatory Body shall have
enacted, issued, promulgated, enforced or entered any Law or Order (whether
temporary, preliminary or permanent) which is in effect and which has the effect
of making the Acquisition Transactions (taken as a whole) or the Asset Purchase
illegal or otherwise prohibiting consummation of the Acquisition Transactions
(taken as a whole) or the Asset Purchase.
  (b)           No Injunctions or
Restraints.  No temporary restraining order, preliminary or
permanent injunction or other order issued by any court of competent
jurisdiction or other legal restraint or prohibition preventing the consummation
of the Acquisition Transactions (taken as a whole) or the Asset Purchase shall
be in effect, nor shall any proceeding, action, suit, claim or injunction
brought by any Governmental or Regulatory Body seeking any of the foregoing be
threatened or pending.
  5.2           Conditions to the
Obligations of Buyer Parties
  The
obligations of Buyer Parties to consummate and affect the Asset Purchase shall
be subject to the satisfaction at or prior to the Closing of each of the
following conditions, any of which may be waived, in writing, by Buyer
Parties:
  (a)           Employees.  Messrs.
Jeff Parker and Chris Pickett shall have executed and delivered to Buyer Parties
the Parker Employment Agreement and the Pickett Employment Agreement,
respectively, and the Transferred Employees shall have executed and delivered to
Buyer Parties their offer letters.
  
  38
   (b)Termination of Agreements. Sellers shall have terminated each of
those agreements listed on Schedule 5.2(b) to this
Agreement, which agreements include all Intercompany-Licenses with respect to
Transferred IP, and all such agreements shall be of no further force or effect
with the sole exception Seller Party confidentiality obligations.  For
the avoidance of doubt, following the Closing any intercompany agreements and
licenses between or among any Sellers with respect to any Transferred
IP  shall only include those rights granted to Seller Parties under
the License Agreement and Copyright Co-Ownership Agreement.
  (c)           License
Agreement.  Seller Parties shall deliver, and shall cause its
Subsidiaries and/or Affiliates to deliver, as applicable, to Buyer Parties a
fully executed copy of the License Agreement set forth as Exhibit D hereto (the
“License
Agreement”).
  (d)           Copyright
Co-Ownership Agreement.  Seller Parties shall deliver to Buyer
Parties a fully executed Copyright Co-Ownership Agreement in the form attached
hereto as Exhibit E(the “Copyright
Co-Ownership Agreement”).
  (e)           Transition
Services Agreement.Seller Parties
shall deliver to Buyer Parties a fully executed Transition Services Agreement in
the form attached hereto as Exhibit F(the “Transition Services
Agreement”).
  (f)           Referral
Agreement.Seller Parties
shall deliver to Buyer Parties a fully executed Referral Agreement in the form
attached hereto as Exhibit G(the “Referral
Agreement”).
  (g)           No Material
Adverse Effect.  There shall not have occurred or be continuing
any event or condition of any character that has had or would reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.
  (h)           Certificate of
Secretary of Seller.  Buyer Parties shall have received one or
more certificates, validly executed by each Secretary of each Seller Party,
certifying with respect to each such Seller Party as to the valid adoption of
the resolutions of the Board of Directors/members of such Seller Party (whereby
the Acquisition Transactions and the other transactions contemplated hereunder
were approved by the Board of Directors/members) (each such certificate, a “Seller Secretary
Certificate”).
  (i)           Amendment of
Rohm & Haas Agreement.  Seller Parties shall have
delivered to Buyer Parties a fully executed amended and restated Intellectual
Property and License Agreement, entered into by and among Seller Parties and
Rohm & Hass (as successor-in-interest to Eastman Kodak Company),
assigned to Buyer IP, in the form attached hereto as Exhibit H (the “Rohm & Haas
Amendment”).
  (j)           Assignment
Instruments.Seller Parties shall deliver to Buyer Parties
such quitclaim deeds or other assignment instruments with respect to the
Transferred IP in the forms attached hereto as Exhibit I-1 (with respect to
all Transferred Patents) andExhibit I-2 (with respect to all Copyrights within the Transferred IP)
(the “Assignment
Instruments”).
  39
   (k)Instruments of
Sale.  Seller Parties shall have delivered to Buyer Parties all
other documents and instruments set forth in Section 1.6(c).
  (l)           Escrow
Agreement.  An Escrow Agreement (as defined below) satisfactory
to Buyer Parties has been duly executed by all parties thereto and delivered to
Buyer Parties.
  (m)           Other
Documents.  Buyer Parties shall have received all other
documents and instruments reasonably requested by Buyer Parties with respect to
the existence of Seller Parties, the authority of Seller Parties to enter into
this Agreement and the Related Agreements, and the compliance by Seller Parties
with the requirements of applicable Law in connection with the consummation of
the Acquisition Transactions.
  5.3           Conditions to the
Obligations of Seller Parties.
  The
obligations of Seller Parties to consummate and affect the Asset Purchase shall
be subject to the satisfaction at or prior to the Closing of each of the
following conditions, any of which may be waived, in writing, by Seller
Parties:
  (a)           License
Agreement.  Buyer Parties shall deliver, as applicable, to
Seller Parties a fully executed copy of the License Agreement set forth as Exhibit D hereto.
  (b)           Copyright
Co-Ownership Agreement.  Buyer Parties shall deliver to Seller
Parties a fully executed Copyright Co-Ownership Agreement in the form attached
hereto as Exhibit
E.
  (c)           Transition
Services Agreement.  Buyer Parties shall deliver to Seller
Parties a fully executed Transition Services Agreement in the form attached
hereto as Exhibit
F.
  (d)           Payment of
Purchase Price.  Buyer Parties shall have paid to Seller
Parties $22,100,000 of the Purchase Price in cash by wire transfer in accordance
with Section 1.6(a)
hereof and $3,900,000 into escrow in accordance with Section 6.4
hereof.
  (e)           Certificate of
Secretary of Buyer.  Seller Parties shall have received one or
more certificates, validly executed by each Secretary of each Buyer Party,
certifying with respect to each such Buyer Party as to the valid adoption of the
resolutions of the Board of Directors/members/managers of such Buyer Party
(whereby the Acquisition Transactions and the other transactions contemplated
hereunder were approved by the Board of Directors/member/managers) (each such
certificate, a “Buyer Secretary
Certificate”).
  (f)           Instruments of
Sale.  Buyer Parties shall have delivered to Seller Parties all
other documents and instruments set forth in Section 1.6(b).
  (g)           Escrow
Agreement.  An Escrow Agreement (as defined below) satisfactory
to Seller Parties has been duly executed by all parties thereto and delivered to
Seller Parties.
  40
   ARTICLE VI
  
  SURVIVAL
OF REPRESENTATIONS AND WARRANTIES; ESCROW
  6.1           Survival of
Representations, Warranties and Covenants
  The
representations and warranties of Seller Parties in this Agreement, or in any
certificate or other instrument delivered pursuant to this Agreement, shall
survive the Closing until the 18-month anniversary of the Closing Date; provided, however, that in
the event of fraud, such representation or warranty shall survive indefinitely
with respect to the Person committing or who has committed such fraud; provided, further, that,
notwithstanding the foregoing, those representations and warranties contained in
Section 2.10 (Intellectual
Property) shall survive until the fifth-year anniversary of the Closing
Date; provided,
further, however, that,
notwithstanding the foregoing, those representations and warranties contained in
Sections 2.1
(Organization; Power), 2.2 (Capital Structure), 2.3 (Subsidiaries), 2.4 (Authority), 2.7 (Tax Matters),
2.9 (Title to Properties; Absence of Liens and Encumbrances)and 2.16 (Brokers’ and Finders’
Fees) shall survive until the expiration of the statute of limitations
applicable to the matters referenced therein.  The representations and
warranties of Buyer Parties contained in this Agreement, or in any certificate
or other instrument delivered pursuant to this Agreement, shall terminate at the
Closing.  The covenants and agreements of each of the parties hereto
contained in this Agreement shall survive the Closing in accordance with their
respective terms.  The expiration of the periods referenced to in this
Section 6.1 shall
be referred to in this Agreement as the “Survival Date.”
  6.2           Indemnification
  (a)           By
virtue of the Acquisition Transactions, from and after the Closing, Seller
Parties hereby agree, jointly and severally, to indemnify and hold Buyer
Parties, their Affiliates and their respective officers, directors, and
successors (the “Indemnified Parties”),
harmless against any and all claims, losses, Liabilities, damages, deficiencies,
costs and expenses, including reasonable attorneys’ fees and expenses of
investigation and defense, and diminution in value (hereinafter, individually, a
“Loss”
and, collectively, “Losses”) paid, suffered,
incurred, sustained or accrued by the Indemnified Parties, or any of them,
directly or indirectly, as a result of or arising in connection with the
following:
  (i)      any
breach, inaccuracy or misrepresentation of any representation or warranty of
Seller Parties contained in this Agreement, any Related Agreement or any
certificates or other instruments delivered by or on behalf of any Person other
than a Buyer Party pursuant to this Agreement (provided, that, in the event
of any such breach or inaccuracy of any representation or warranty which
includes any qualification as to “materiality,” “Material Adverse Effect,”
“knowledge” or “Knowledge” for purposes of determining the amount of any Loss
with respect to such breach or inaccuracy, no effect will be given to such
qualification as to “materiality,” a “Material Adverse Effect,” “knowledge” or
“Knowledge” contained therein (for
  41
   the
avoidance of doubt, such qualifications would continue to apply to the
determination as to whether or not a breach or inaccuracy had
occurred));
  (ii)      any
failure by any Seller Party to perform or comply with any covenant applicable to
any of them contained in this Agreement or any Related Agreement;
  (iii)    
the operation of the Business by Sellers prior to Closing;
  (iv)  
  Liabilities of Seller Parties, whether arising before or after the
Closing Date, that are not expressly assumed by Buyer Parties pursuant to this
Agreement including the Retained Liabilities;
  (v)      any
Liabilities for Taxes for which any Seller Party is responsible pursuant to
Section 4.5
hereof;
  (vi)     any
claim or cause of action of any third party to the extent arising out of any
action, inaction, event, condition, liability or obligation of Sellers occurring
or existing prior to the Closing;
  (vii)    Liabilities
arising from or related to any failure to comply with laws relating to bulk
transfers or bulk sales with respect to the transactions contemplated by this
Agreement; and
  (viii)   any
fraud related to this Agreement, any Related Agreement or any certificates or
other instruments delivered by or on behalf of any Person other than a Buyer
Party pursuant to this Agreement.
  (b)           No
Seller shall have any right of contribution, indemnification or right of
advancement from Buyer Parties with respect to any Loss claimed by an
Indemnified Party.
  (c)           Notwithstanding
anything to the contrary set forth in this Agreement, any Person committing
fraud related to this Agreement, any Related Agreement, or any certificate or
other instrument delivered pursuant to this Agreement shall be liable for, and
shall indemnify and hold the Indemnified Parties harmless for, any Losses paid,
suffered, incurred, sustained or accrued by the Indemnified Parties, or any of
them, directly or indirectly, as a result of, arising out of or in connection
with such fraud committed by such Person.
  (d)           Nothing
in this Agreement shall limit the right of Buyer Parties or any other
Indemnified Party to pursue remedies under any Related Agreement against the
parties thereto.
  6.3           Indemnification
Limitations
  (a)           Except
for Losses based on any fraud related to this Agreement, any Related Agreement
or any certificates or other instruments delivered by or on behalf of
any
  42
   Person
other than a Buyer Party pursuant to this Agreement, the indemnity set forth in
Section 6.2
constitutes the sole and exclusive remedy of the Indemnified Parties for the
recovery of Losses.
  (b)           Except
as set forth in the following sentence, an Indemnified Party may not recover any
Losses under Section 6.2(a)unless and
until the aggregate amount of such Losses exceeds $150,000 (the “Basket Amount”), in which case
Buyer Parties shall be entitled to recover all Losses (including the
$150,000).  Notwithstanding the foregoing, Buyer Parties shall be
entitled to recover for, and the Basket Amount shall not apply as a threshold
to, any and all claims or payments made with respect to all Losses related to
any fraud related to this Agreement, any Related Agreement or any certificates
or other instruments delivered by or on behalf of any Person other than a Buyer
Party pursuant to this Agreement.
  (c)           Except
in the case of fraud related to this Agreement, any Related Agreement or any
certificates or other instruments delivered by or on behalf of any Person other
than a Buyer Party pursuant to this Agreement, the maximum amount an Indemnified
Party may recover from Seller Parties pursuant to the indemnity set forth in
Section 6.2(a)
shall be limited to:
  (i)      the
aggregate Purchase Price actually received by Seller Parties for Losses based on
breaches of the representations set forth in Sections 2.4 (Authority),2.16 (Brokers’ and Finders’
Fees),2.22 (Valid
Title)and the following subsections and portions of Section 2.10 (Intellectual Property):
(a),(b),(c), (d),(f),(g), (i),(j),the first and second
sentences of (k),
subsections (i), (ii) and (iii) of the third sentence of
(k), (l), (m), (n), (o), (p), the second sentence of
(q), (r), (s), (t), the second and third
sentences of (u), (v), (w), (x), (y), (z), (aa), (bb) and (cc); and
  (ii)      the
Escrow Amount for all other Losses.
  6.4           Escrow
Arrangements
  (a)           Escrow
Fund.  At the Closing, Seller R&D, Buyer IP and the escrow
agent shall enter into the Escrow Agreement in the form attached hereto as Exhibit J (the “Escrow
Agreement”).  Seller R&D is entering into the Escrow
Agreement on behalf of all Seller Parties and each Seller Party hereby
acknowledges, agrees, understands and confirms the Escrow Agreement in its
entirety.  Buyer IP is entering into the Escrow Agreement on behalf of
all Buyer Parties and each Buyer Party hereby acknowledges, agrees, understands
and confirms the Escrow Agreement in its entirety.  By virtue of this
Agreement and as security for the indemnity obligations provided for in Section 6.2(a) hereof, at
the Closing, Seller Parties will be deemed to have received and deposited with
the escrow agent an amount in cash equal to $3,900,000 (such amount, the “Escrow
Amount”) without any act of Seller Parties.  The Escrow Amount
shall be available to compensate the Indemnified Parties, or any of them, for
any claims by any such party for any Losses suffered or incurred by it and for
which it is entitled to recovery under thisArticle
VI.  Promptly after the Closing, the Escrow Amount, without any
act of Seller Parties, will be deposited with the escrow agent, such deposit of
the Escrow Amount to
  43
   constitute
an escrow fund (the “EscrowFund”) to be governed by the
terms set forth herein and in the Escrow Agreement.  For the purposes
hereof, “Officer’sCertificate” shall mean a
notarized certificate signed by any officer of an Indemnified Party:
(1) stating in good faith that such Indemnified Party has paid, sustained,
incurred, or accrued, or reasonably anticipates that it will have to pay,
sustain, incur, or accrue Losses; and (2) specifying in reasonable detail
the individual items of Losses included in the amount so stated, the date each
such item was paid, sustained, incurred, or accrued, or the basis for such
anticipated Liability, and the nature of the misrepresentation, breach of
warranty or covenant to which such item is related.
  (b)           Escrow Period;
Distribution upon Termination of Escrow Period.  Subject to the
following requirements, the Escrow Fund shall be in existence immediately
following the Closing and shall terminate on the 18-month anniversary of the
Closing Date (the “Escrow Period”); provided,however, that the Escrow
Period shall not terminate with respect to any amount which is necessary to
satisfy any unsatisfied claims specified in any Officer’s Certificate(s)
delivered to Seller Parties and the escrow agent prior to the end of the Escrow
Period with respect to facts and circumstances existing prior to such time as
specified further in the Escrow Agreement.  As soon as all such claims
have been resolved, the escrow agent shall deliver to Seller Parties the
remaining portion of the Escrow Fund, if any, not required to satisfy such
claims.
  (c)           Third-Party
Claims.  In the event a Buyer Party becomes aware of a third
party claim (a “Third Party Claim”) which such
Buyer Party reasonably believes will result in a claim pursuant to thisArticle VI, such Buyer Party
shall notify Seller Parties of such claim, and Seller Parties shall be entitled
to participate in, but not to determine or conduct, the defense of such Third
Party Claim.  Buyer Parties shall have the right in their sole
discretion to conduct the defense of, and to settle, any such claim; provided, however, that
except with the consent of the Seller Parties, no settlement of any such Third
Party Claim with third party claimants shall be determinative of the existence
of a claim for indemnification pursuant to this Article VI or the amount of
Losses relating to such matter.  If there is a third party claim that,
if adversely determined would give rise to a right of recovery for Losses
hereunder, then any amounts incurred or accrued by the Indemnified Parties in
defense of such third-party claim, regardless of the outcome of such claim,
shall be deemed Losses hereunder.  In the event that Seller Parties
have consented to any such settlement, Seller Parties shall have no power or
authority to object under any provision of this Article VI to the amount of
any Third Party Claim by Buyer Parties against the Escrow Fund with respect to
such settlement.
  6.5           No
Indemnification Limitationsand Other
Matters
   (a)           Nothing
in this Agreement shall limit the liability of Seller Parties for any breach of
any representation, warranty or covenant set forth in this Agreement, any
Related Agreements or in any certificates or other instruments delivered
pursuant to this Agreement if the Asset Purchase is not
consummated.
  44
   (b)           Notwithstanding
anything to the contrary set forth in this Agreement, the parties hereto agree
and acknowledge that any Indemnified Party may bring a claim for indemnification
for any Loss under this Article VI notwithstanding the fact that such
Indemnified Party had knowledge of the breach, event or circumstances giving
rise to such Loss prior to the Closing or waived any condition to the Closing
related thereto.
  (c)           Notwithstanding
anything to the contrary set forth in this Agreement, nothing in this Agreement
shall limit the rights of any party hereto to apply for equitable remedies to
enforce the other party or parties’ obligations hereunder.
  (d)           Notwithstanding
anything to the contrary contained in this Agreement, to the extent permitted by
applicable Law, any indemnification payment made pursuant to this Article VI hereto shall be
treated as an adjustment to the Purchase Price.
  (e)           All
claims for recovery for any Loss or Losses from the Escrow Fund shall be made
pursuant to and in accordance with, and be governed by the terms of, this
Agreement and the Escrow Agreement.
  ARTICLE VII
  
  AMENDMENT
AND WAIVER
  7.1           Amendment
  This
Agreement may be amended by the parties hereto at any time by execution of an
instrument in writing signed on behalf of the party against whom enforcement is
sought.
  7.2           Extension;
Waiver
  Buyer
Parties, on the one hand, and Seller Parties, on the other hand, may, to the
extent legally allowed, (i) extend the time for the performance of any of
the obligations of the other party hereto, (ii) waive any inaccuracies in
the representations and warranties made to such party contained herein or in any
document delivered pursuant hereto, and (iii) waive compliance with any of
the covenants, agreements or conditions for the benefit of such party contained
herein.  Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party.
  ARTICLE VIII
  
  GENERAL
PROVISIONS
  8.1           Notices
  All
notices and other communications hereunder shall be in writing and shall be
deemed given if delivered personally or by commercial messenger or courier
service, or mailed by registered or certified mail (return receipt requested) or
sent via facsimile (with acknowledgment of complete transmission) to the parties
at the following addresses (or at such
  45
   other
address for a party as shall be specified by like notice); provided, however, that notices sent by
mail will not be deemed given until received:
  (a)           if
to Buyer Parties, to:
  Rambus
Inc.
 4440 El
Camino Real
 Los
Altos, CA 94022
 Attention:
General Counsel
 Facsimile
No.: (650) 947-5001
  with a
copy (which shall not be deemed notice) to:
  Wilson
Sonsini Goodrich & Rosati
 Professional
Corporation
 650 Page
Mill Road
 Palo
Alto, CA 94304
 Attention:
Aaron J. Alter, Esq.
 Facsimile
No.: (650) 493-6811
  (b)           if
to Seller Parties, to:
  Global
Lighting Technologies, Inc.
 1149,
Sec. 3 Min-Chuan Rd.
 Chung-Li,
Taiwan
 Attention:
James Hung, Senior Manager
 Facsimile
No.: 866-3-425-1919
  with a
copy (which shall not be deemed notice) to:
  Global
Lighting Technologies, Inc.
 55
Andrews Circle
 Brecksville,
OH  44141
 Attention:
General Manager
 Facsimile
No.: (440) 922-4585
  Squire,
Sanders & Dempsey, L.L.P.
 4900 Key
Tower
 127
Public Square
 Cleveland,
OH 44114
 Attention:
Gordon S. Kaiser, Jr., Esq.
 Facsimile
No.: (216) 479-8780
  46
   8.2           Interpretation
  (a)           For
purposes of this Agreement, whenever the context requires, the singular number
will include the plural, and vice versa; the masculine gender will include the
feminine and neuter genders; the feminine gender will include the masculine and
neuter genders; and the neuter gender will include the masculine and feminine
genders.
  (b)           The
words “include,” “includes” and “including” when used herein shall be deemed in
each case to be followed by the words “without limitation.”  The word
“share” or “stock” shall be used interchangeably and shall mean either one as
the context may require.  The table of contents and headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.  The symbol
“$” shall refer to U.S.
dollars and where thresholds are established in Article II orArticle VI, such U.S. dollar
amounts shall include foreign currency equivalents of such U.S. dollar amounts
at then prevailing foreign currency exchange rates.
  8.3           Counterparts
  This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other party, it being understood that all parties need not sign the same
counterpart.
  8.4           Entire Agreement;
Assignment
  This
Agreement, the Exhibits hereto, and the Disclosure Schedule, and the documents
and instruments, the Related Agreements and the other agreements among the
parties hereto referenced herein: (i) constitute the entire agreement among
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings both written and oral, among the parties with
respect to the subject matter hereof, (ii) are not intended to confer upon
any other Person any rights or remedies hereunder, and (iii) shall not be
assigned by operation of Law or otherwise, except that any Buyer Party may
assign its rights and delegate its obligations hereunder to Buyer Parent or any
of its Subsidiaries or Affiliates as long as Buyer Parent remains ultimately
liable for all Buyer Parties’ obligations hereunder.
  8.5           Severability
  In
the event that any provision of this Agreement or the application thereof,
becomes or is declared by a court of competent jurisdiction to be illegal, void
or unenforceable, the remainder of this Agreement will continue in full force
and effect and the application of such provision to other Persons or
circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto.  The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
  47
   8.6           Other
Remedies
  Any and
all remedies herein expressly conferred upon a party will be deemed cumulative
with and not exclusive of any other remedy conferred hereby, or by Law or equity
upon such party, and the exercise by a party of any one remedy will not preclude
the exercise of any other remedy.
  8.7           Governing
Law
  This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.  Each of the parties hereto hereby submits to the
exclusive jurisdiction of the federal and state courts in the State of Ohio in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.  Each of the parties hereto
irrevocably and unconditionally waives any objection to the laying of venue of
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby in federal and state courts in the State of
Ohio and irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such suit or proceeding in any such court has been
brought in an inconvenient forum.  Each of the parties hereto further
agrees, (a) to the extent such party is not otherwise subject to service of
process in the State of Ohio, to appoint and maintain an agent in the State of
Ohio as such party’s agent for acceptance of legal process, and (b) that
service of process may also be made on such party at its respective address set
forth in Section 8.1 by
prepaid certified mail with a proof of mailing receipt validated by U.S. Postal
Service constituting evidence of valid service.  Service made pursuant
to (a) or (b) above shall have the same legal force and effect as if
served upon such party personally with the State of Ohio.
  8.8           Rules of
Construction
  The
parties hereto agree that they have been represented by counsel during the
negotiation and execution of this Agreement and, therefor, waive the application
of any Law, regulation, holding or rule of construction providing that
ambiguities in an agreement or other document will be construed against the
party drafting such agreement or document.
  8.9           WAIVER OF JURY
TRIAL
  EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
UNDER APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY AND ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
  [SIGNATURE PAGE
FOLLOWS]
  48
  
  IN
WITNESS WHEREOF, Buyer Parties and Seller Parties have caused this Agreement to
be signed, all as of the date first written above.
  RAMBUS
INC.
  By: /s/ Harold
Hughes
 Name:
Harold Hughes
 Title:
President and Chief Executive Officer
  RAMBUS
INTERNATIONAL LTD.
  By: /s/
Satish
Rishi
 Name:
Satish Rishi
 Title:
Senior Vice President and Chief Financial Officer
 
  RAMBUS
DELAWARE LLC
  By:  /s/ Thomas
R.
Lavelle
 Name:
Thomas R. Lavelle
 Title:
Senior Vice President and General Counsel
  GLOBAL
LIGHTING TECHNOLOGIES, INC.
  By: /s/
CP
Wang
 Name: CP
Wang
 Title:
Chief Executive Officer and President
 
  SOLID
STATE OPTO LIMITED
  By:  /s/ CP Wang
 Name: CP
Wang
 Title:
Director
  GLOBAL
LIGHTING TECHNOLOGIES, INC.
  By: /s/ CP
Wang
 Name: CP
Wang
 Title:
Chief Executive Officer and President
    SIGNATURE
PAGE TO ASSET PURCHASE AGREEMENT