ASSET
PURCHASE AGREEMENT
BY
AND BETWEEN
INTERNATIONAL
RECTIFIER CORPORATION
AND
APA
ENTERPRISES, INC.
________________
Dated
as of March 9, 2006
TABLE
OF CONTENTS
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Page
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SECTION
1.
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PURCHASE
AND SALE OF ASSETS
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1
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1.1
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Purchase and Sale of Assets.
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1
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1.2
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Purchase Price
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2
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1.3
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Allocation of Purchase Price
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2
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SECTION
2
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ADDITIONAL
AGREEMENTS
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2
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SECTION
3.
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CLOSING
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2
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3.1
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Closing Date.
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2
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3.2
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Purchaser's Closing Date Deliveries
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2
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3.3
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Seller's Closing Date Deliveries
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3
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3.4
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Further Assurances
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3
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SECTION
4.
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REPRESENTATIONS
AND WARRANTIES OF SELLER
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3
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4.1
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Organization of Seller
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3
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4.2
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Authority of Seller.
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3
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4.3
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No Violation of Law and Agreements
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4
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4.4
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Assets
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4
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4.5
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No Litigation or Regulatory Action
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5
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4.6
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Taxes
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5
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4.7
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Permits.
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5
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4.8
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Environmental Compliance.
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5
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4.9
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No Brokers
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6
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SECTION
5.
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REPRESENTATIONS
AND WARRANTIES OF PURCHASER
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6
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5.1
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Organization of Purchaser
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6
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5.2
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Authority of Purchaser
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6
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5.3
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No Violation of Law and Agreements
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6
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5.4
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No Litigation or Regulatory Action.
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7
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5.5
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No Brokers
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7
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5.6
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Financial Ability
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7
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SECTION
6.
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ACTION
PRIOR TO THE CLOSING DATE
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7
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6.1
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Regulatory and Other Approvals
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7
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6.2
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Investigation by Purchaser
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7
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6.3
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Veeco Lease.
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7
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6.4
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Designated Employees.
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7
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6.5
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Reasonable Efforts
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8
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SECTION
7.
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EMPLOYEES
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8
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7.1
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Offer of Employment
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8
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7.2
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No Third Party Beneficiaries.
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8
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SECTION
8.
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CONDITIONS
PRECEDENT TO OBLIGATIONS OF PURCHASER
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8
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8.1
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No Misrepresentation or Breach of Covenants and Warranties
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8
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8.2
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Necessary Governmental Approvals
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8
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8.3
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Deliveries by Seller
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8
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8.4
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No Injunction
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9
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8.5
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Employees.
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9
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SECTION
9.
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CONDITIONS
PRECEDENT TO OBLIGATIONS OF SELLER
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9
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9.1
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No Misrepresentation or Breach of Covenants and Warranties
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9
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9.2
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Necessary Governmental Approvals
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9
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9.3
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Payment of Purchase Price
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9
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9.4
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Delivery by Purchaser
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9
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9.5
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No Injunction
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9
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SECTION
10
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TERMINATION
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9
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10.1
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Termination
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9
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10.2
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Effect of Termination
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10
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SECTION
11.
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SURVIVAL
AND INDEMNIFICATION
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10
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11.1
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Survival of Covenants, Representations and Warranties
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10
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11.2
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Indemnification By Seller
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10
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11.3
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Indemnification by Purchaser
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10
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11.4
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Notice of Claims.
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10
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11.5
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Mitigation.
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11
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11.6
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Subrogation.
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11
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11.7
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Warranty
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11
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SECTION
12.
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GENERAL
PROVISIONS
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11
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12.1
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Notices
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11
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12.2
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Expenses
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11
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12.3
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Confidentiality
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12
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12.4
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Waiver
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12
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12.5
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Amendment
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12
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12.6
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No Third Party Beneficiary
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12
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12.7
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No Assignment; Binding Effect
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12
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12.8
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Headings
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13
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12.9
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Invalid Provisions
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13
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12.10
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Governing Law
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13
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12.11
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Jurisdiction; Waiver of Jury Trial
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13
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12.12
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Counterparts
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13
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12.13
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Interpretation.
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13
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12.14
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Entire Agreement
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13
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12.15
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Circular 230 Disclaimer
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13
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EXHIBITS
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Exhibit
A
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Certain
Definitions
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Exhibit
B
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Patent
and Technology License Agreement
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Exhibit
C
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Consulting
Agreement
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Exhibit
D
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Bill
of Sale
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SCHEDULES
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Schedule
1.1(a)(i)
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D180
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Schedule
1.1(a)(ii)
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Spare
Parts
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Schedule
1.1(a)(iii)
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Consumables
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Schedule
1.1(a)(iv)
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Equipment
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Schedule
1.1(a)(v)
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GaN
Intellectual Property
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Schedule
4.3
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Permitted
Liens
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Schedule
4.4
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Assets
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Schedule
4.5
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Litigation
or Regulatory Action
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Schedule
4.7
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Permits
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Schedule
4.9
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Benefit
Plans for Designated Employees
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Schedule
7.1
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Designated
Employees
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ASSET
PURCHASE AGREEMENT
This
Asset Purchase Agreement (this "Agreement") is entered into as of March
9th 2006, by and between International Rectifier Corporation, a
Delaware corporation ("IR" or "Purchaser") and APA Enterprises, Inc., a
Minnesota corporation ("APA" or "Seller"). (Purchaser and Seller may each
be
referred to herein as a "Party" and collectively as the "Parties." Capitalized
terms have the meanings set forth in Exhibit A attached hereto.)
W
I T N E
S S E T H:
WHEREAS,
Seller owns an Emcore D180 GaN MOCVD growth tool and related assets, including
without limitation certain intellectual property, which it uses in the
development and production of products utilizing Gallium Nitride ("GaN");
and
WHEREAS,
Seller desires to sell to Purchaser, and Purchaser desires to purchase from
Seller, said growth tool and related assets described herein on the terms
and
subject to the conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements hereinafter
set forth and other good and valuable consideration, the receipt and sufficiency
of which is acknowledged, it is hereby agreed as follows:
SECTION
1. PURCHASE
AND SALE OF ASSETS
1.1 Purchase
and Sale of Assets.
(a) Upon
the
terms and subject to the conditions of this Agreement, on the Closing Date,
Purchaser shall purchase from Seller, and Seller shall irrevocably sell,
convey,
transfer, assign and deliver to Purchaser, free and clear of all Encumbrances,
all of Seller's rights, title and interest in and to the following assets,
properties and rights, in each case to the extent existing as of the Closing
Date (the "Assets"):
(i) The
Emcore D180 GaN MOCVD growth tool described on Schedule 1.1(a)(i) (the
"D180"),
presently installed at the facility of Veeco Compound Semiconductor Inc.
("Veeco") located at 4900 Constellation Drive, St. Paul, Minnesota
55127;
(ii) The
spare
parts for the D180 set forth on Schedule 1.1(a)(ii) (the "Spare
Parts");
(iii) The
consumable products intended for use with the D180 set forth on Schedule
1.1(a)(iii) (the "Consumables");
(iv) The
related equipment set forth on Schedule 1.1(a)(iv) (the "Equipment");
and
(v) The
know-how, technical information, patents, patent applications, disclosures
and
other Intellectual Property relating to GaN technology set forth on Schedule
1.1(a)(v) (the "GaN Intellectual Property").
(b) Notwithstanding
anything to the contrary herein, Seller shall not contribute, convey, assign,
or
transfer to Purchaser, and Purchaser shall not acquire or have any rights
to
acquire, any assets of Seller other than those specifically set forth on
the
Schedules identified in Section 1.1(a).
1.2 Purchase
Price.
Purchaser shall pay Seller, and Seller shall accept, in full payment for
the
Assets, at the Closing a purchase price of One Million and Nine Hundred Thousand
dollars ($1,900,000) (the "Purchase Price"). At Closing, Purchaser shall
pay the
Purchase Price to Seller by means of a wire transfer of immediately available
U.S. funds to one or more accounts designated in advance in writing by Seller
to
Purchaser.
1.3 Allocation
of Purchase Price.
The
consideration for the Assets as determined for federal income tax purposes
shall
be allocated as provided in Treasury Regulation Section
1.1060-1(c).
SECTION
2. ADDITIONAL
AGREEMENTS
2.1 Prior
to
or at the Closing, Purchaser and Seller shall enter into a patent and technology
license agreement, substantially in the form of Exhibit B (the "Patent and
Technology License Agreement"), pursuant to which Purchaser shall grant Seller
a
license to use certain of the GaN Intellectual Property in applications greater
than 1.0 GHz.
2.2 Prior
to
or at the Closing, Purchaser and Seller shall enter into a consulting agreement,
substantially in the form of Exhibit C (the "Consulting Agreement"), pursuant
to
which Seller shall provide certain support services to Purchaser.
3.1 Closing
Date.
The
Closing shall be consummated on a date and at a time agreed upon by Purchaser
and Seller, but in no event later than the fifth (5th)
Business Day after the conditions set forth in Sections 8 and 9 have been
satisfied or waived, at the offices of International Rectifier Corporation,
233
Kansas Street, El Segundo, CA, 90245, or at such other place as shall be
agreed
upon by Purchaser and Seller. The time and date on which the Closing is actually
held is referred to herein as the "Closing Date."
3.2 Purchaser's
Closing Date Deliveries.
Subject
to fulfillment or waiver of the conditions set forth in Section 8, at the
Closing, Purchaser shall deliver to Seller all of the following:
(a) The
Purchase Price, payable as provided in Section 1.2;
(b) The
Patent and Technology License Agreement, executed by a duly authorized officer
of Purchaser;
(c) The
Consulting Agreement, executed by a duly authorized officer of Purchaser;
and
(d) Such
other instruments and documents as Seller may reasonably deem necessary or
as
may be required to consummate the transactions contemplated hereby.
3.3 Seller's
Closing Date Deliveries.
Subject
to fulfillment or waiver of the conditions set forth in Section 9, at the
Closing, Seller shall deliver to Purchaser all of the following:
(a) A
Bill of
Sale, substantially in the form of Exhibit D, executed by a duly authorized
officer of Seller;
(b) The
Patent and Technology License Agreement, executed by a duly authorized officer
of Seller;
(c) The
Consulting Agreement, executed by a duly authorized officer of
Seller;
(d) All
other
instruments, certificates, documents and filings (if applicable) necessary
to
provide Purchaser full ownership of the Assets; and
(e) Such
other instruments and documents as Purchaser may reasonably deem necessary
or as
may be required to consummate the transactions contemplated hereby.
3.4 Further
Assurances.
Subject
to the terms and conditions of this Agreement, from time to time after the
Closing, each of the Parties shall execute and deliver such other documents
and
instruments, provide such materials and information, and take such other
actions
as may be reasonably necessary, to the extent permitted by Law, to fulfill
its
obligations under this Agreement.
SECTION
4. REPRESENTATIONS
AND WARRANTIES OF SELLER
As
an
inducement to Purchaser to enter into this Agreement and to consummate the
transactions contemplated hereby, Seller hereby represents and warrants to
Purchaser as set forth below.
4.1 Organization
of Seller.
Seller
is a corporation duly incorporated, validly existing and in good standing
under
the laws of Minnesota. Seller has the corporate power and authority to own
and
operate the Assets in the manner conducted immediately prior to the date
of this
Agreement.
4.2 Authority
of Seller.
Seller
has the corporate power and authority to execute, deliver and perform this
Agreement and the Transaction Agreements. The execution, delivery and
performance of this Agreement and the Transaction Agreements by Seller have
been
duly authorized and approved by all necessary corporate action. This Agreement
has been duly authorized, executed and delivered by Seller and (assuming
the
valid authorization, execution and delivery of this Agreement by Purchaser)
is
the legal, valid and binding obligation of Seller, enforceable in accordance
with its terms, and each of the Transaction Agreements has been duly authorized
by Seller and upon execution and delivery by Seller (assuming the valid
authorization, execution and delivery by each other party thereto) will be
the
legal, valid and binding obligation of Seller enforceable in accordance with
its
terms, in each case subject to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general application relating to or affecting
creditors' rights and to general equity principles.
4.3 No
Violation of Law and Agreements.
The
execution and delivery by Seller of this Agreement and each Transaction
Agreement, and the performance by Seller of its obligations hereunder or
thereunder, does not and will not:
(a) Violate
any provisions of the certificate of incorporation or bylaws of
Seller;
(b) Violate
any provision of applicable Law relating to Seller;
(c) Except
as
set forth on Schedule 4.3, require a registration, filing, application, notice,
consent, approval, order, qualification, authorization, designation, declaration
or waiver with, to or from any Governmental Authority; or
(d) Except
as
set forth on Schedule 4.3, (i) require a consent, approval or waiver from,
or
notice to, any party to any material contract to which Seller is a party,
or
(ii) result in a material breach of, constitute a default under, result in
the
acceleration of material obligations, loss of material benefit or increase
in
any material Liabilities or fees under, or create in any party the right
to
terminate, cancel or materially modify, any agreement to which Seller is
a
party.
4.4 Assets.
Seller
owns, is in possession of, and has good and valid title to all of the Assets.
All Assets are free and clear of all Liens, other than Liens disclosed in
Schedule 4.4 ("Permitted Liens").
(a) The
D180
and all Equipment are in all material respects in good working order and
condition, ordinary wear and tear excepted. The D180 has been installed on
the
Veeco premises in compliance with all applicable Laws and at all times has
been
operated in compliance with all applicable laws.
(b) All
of
the Spare Parts and Consumables are new and unused and consist of a quality
and
quantity usable in the ordinary course of business consistent with past
practices.
(c) Seller
owns the entire right, title and interest in and to the GaN Intellectual
Property, free and clear or all Encumbrances. To the Knowledge of Seller,
none
of the GaN Intellectual Property infringes or violates, or constitutes a
misuse
or misappropriation of, any intellectual property rights of any Person or
entity. Other
than as set forth on Schedule 4.4, Seller has not granted rights to use any
GaN
Intellectual Property to any other Person. To
the
Knowledge of Seller, during the previous two (2) years no material Action
has
been taken or threatened, (A) alleging that any GaN Intellectual Property
infringes on the intellectual property of another Person; or (B) challenging
the
ownership or validity of the GaN Intellectual Property. No Action is pending
with respect to any GaN Intellectual Property and, to the Knowledge of Seller,
there is no valid basis for any such Action.
(d) Except
as
set forth on Schedule 4.4, there is no Action or Proceeding pending or, to
the
Knowledge of Seller, threatened, (a) which would delay the consummation of
any
of the transactions contemplated hereby; or (b) that questions the legality
or
propriety of the transactions contemplated by this Agreement or any of the
Transaction Agreements.
4.5 No
Litigation or Regulatory Action.
Except
as set forth on Schedule 4.5:
(a) There
is
no Action or Proceeding pending or, to the Knowledge of Seller, threatened,
against Seller which would reasonably be expected to prevent, or materially
hinder or delay the consummation of any of the transactions contemplated
hereby;
and
(b) There
is
no Action or Proceeding pending or, to the Knowledge of Seller, threatened,
that
questions the legality or propriety of the transactions contemplated by this
Agreement or any of the Transaction Agreements.
4.6 Taxes.
None of
the Assets is subject to any lien in favor of the United States pursuant
to
Section 6321 of the Code for nonpayment of federal Taxes, or any lien in
favor
of any state or locality pursuant to any comparable provision of state or
local
law, under which transferee liability might be imposed upon Purchaser as
a buyer
of such Assets pursuant to Section 6323 of the Code or any comparable provision
of state or local law.
4.7 Permits.
Schedule 4.7 sets forth all Permits owned, held or possessed by Seller that
are
necessary to entitle it to own, operate and use the Assets substantially
as
conducted on the date of this Agreement, except for such Permits as to which
the
failure to so own, hold or possess would not result in a Material Adverse
Effect
(herein collectively called "Governmental Permits").
4.8 Environmental
Compliance.
(a) In
its
use and operation of the Assets, Seller is and has been in compliance with
all
applicable Environmental Laws.
(b) Seller
possesses all Permits required under Environmental Laws for use and operation
of
the Assets except for such Permits that the failure to so hold or possess
would
not result in a Material Adverse Effect.
(c) To
the
Knowledge of Seller, there has been no release of any Hazardous Substance
in
connection with the use or operation of the Assets that is in violation of
or is
reasonably likely to lead to any Liability arising under any Environmental
Law.
(d) Seller
has not received any written notice of violation, nor is any Action pending
or,
to the Knowledge of Seller, threatened, asserting actual or potential Liability
under any Environmental Law in respect of the use or operation of the
Assets.
(e) All
environmental studies and audits conducted in relation to the Assets in the
last
two (2) years of which Seller has knowledge have been made available to
Purchaser.
4.9 No
Brokers.
Except
for the fees paid and payable by Seller to David Reamer, neither Seller nor
any
Person acting on its behalf has paid or become obligated to pay any fees
or
commission to any broker, finder or intermediary for or on account of the
transactions contemplated by this Agreement.
SECTION
5. REPRESENTATIONS
AND WARRANTIES OF PURCHASER
As
an
inducement to Seller to enter into this Agreement and to consummate the
transactions contemplated hereby, Purchaser hereby represents and warrants
to
Seller as follows:
5.1 Organization
of Purchaser.
Purchaser is a corporation duly incorporated, validly existing and in good
standing under the laws of Delaware. Purchaser has the corporate power and
authority to own or lease and operate its assets and to carry on its businesses
in the manner that they were conducted immediately prior to the date of this
Agreement.
5.2 Authority
of Purchaser.
Purchaser has the corporate power and authority to execute, deliver and perform
this Agreement and each of the Transaction Agreements. The execution, delivery
and performance of this Agreement and the Transaction Agreements by Purchaser
have been duly authorized and approved by all necessary corporate action.
This
Agreement has been duly authorized, executed and delivered by Purchaser and
(assuming the valid authorization, execution and delivery of this Agreement
by
Seller) is the legal, valid and binding agreement of Purchaser, enforceable
in
accordance with its terms, and each of the Transaction Agreements has been
duly
authorized by Purchaser and upon execution and delivery by Purchaser (assuming
the valid authorization, execution and delivery by each other party thereto)
will be the legal, valid and binding obligation of Purchaser enforceable
in
accordance with its terms, in each case subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general application relating
to
or affecting creditors' rights and to general equity principles.
5.3 No
Violation of Law and Agreements.
The
execution and delivery by Purchaser of this Agreement and each Transaction
Agreement, and the performance by Purchaser of its obligations hereunder
or
thereunder, does not and will not:
(a) Violate
any provision of the certificate of incorporation or bylaws of
Purchaser;
(b) Violate
any provision of applicable Law relating to Purchaser;
(c) Require
a
registration, filing, application, notice, consent, approval, order,
qualification, authorization, designation, declaration or waiver with, to
or
from any Governmental Authority; or
(d) (i) Require
a
consent, approval or waiver from, or notice to, any party to any material
contract to which Purchaser is a party, or (ii) result in a material breach
of, constitute a default under, result in the acceleration of material
obligations, loss of material benefit or increase in any material Liabilities
or
fees under, or create in any party the right to terminate, cancel or materially
modify, any agreement to which Purchaser is a party.
5.4 No
Litigation or Regulatory Action.
(a) There
is
no Action or Proceeding pending or, to the knowledge of Purchaser, threatened,
against Purchaser which would reasonably be expected to prevent, or materially
hinder or delay the consummation of any of the transactions contemplated
hereby;
and
(b) There
is
no Action or Proceeding pending or, to the knowledge of Purchaser, threatened,
that questions the legality or propriety of the transactions contemplated
by
this Agreement or any of the Transaction Agreements.
5.5 No
Brokers.
Neither
Purchaser nor any Person acting on its behalf has paid or become obligated
to
pay any fee or commission to any broker, finder or intermediary for or on
account of the transactions contemplated by this Agreement.
5.6 Financial
Ability.
Purchaser has sufficient cash on hand from Purchaser's immediately available
internal funds and/or available credit
facilities to consummate the transactions contemplated by this Agreement
and
perform its obligations hereunder.
SECTION
6. ACTION
PRIOR TO THE CLOSING DATE
Purchaser
and Seller covenant and agree to take the following actions between the date
hereof and the Closing Date:
6.1 Regulatory
and Other Approvals.
Each
Party will as promptly as practicable (a) take all commercially reasonable
steps necessary or desirable to obtain all consents or approvals of, make
all
filings with and give all notices to Governmental Authorities or any other
Person required to consummate the transactions contemplated hereby, and (b)
provide such other information to such Governmental Authorities or other
Persons
as such Governmental Authorities or other Persons may reasonably request
in
connection therewith.
6.2 Investigation
by Purchaser.
Seller
will (a) provide Purchaser and its directors, officers, employees, counsel,
accountants, financial advisors, consultants and other representatives
(collectively, "Representatives") with reasonable access, upon reasonable
prior
notice and during normal business hours, to the Assets and any relevant
supporting facilities, but only to the extent that such access does not
unreasonably interfere with the business and operations of Seller, and (b)
promptly furnish Purchaser and such Representatives with all such information
and data concerning the Assets as Purchaser or any of such Representatives
reasonably may request in connection with such investigation, except to the
extent that furnishing any such information or data would violate any Law,
Order, Contract or License applicable to Seller.
6.3 Veeco
Lease.
The
Parties will use reasonable commercial efforts to cause Veeco (a) to
terminate its lease with Seller, dated June 11, 2004, on terms and conditions
satisfactory to Seller; and (b) to enter into a substitute lease with Purchaser
on terms and conditions satisfactory to Purchaser.
6.4 Designated
Employees.
Seller
shall use reasonable commercial efforts to cause the Designated Employees
to
accept employment with Purchaser following the Closing.
6.5 Reasonable
Efforts.
Subject
to the terms and conditions of this Agreement, each Party will use all
reasonable efforts to cause the Closing to occur (including, without limitation,
the use of commercially reasonable efforts to execute and deliver any documents
reasonably requested by either Party and to satisfy such Party's conditions
to
Closing set forth herein). Each Party will promptly notify the other after
learning of the occurrence of any event or circumstance which would reasonably
be expected to cause any condition to Closing not to be satisfied. In such
event, the Parties will negotiate in good faith during the seven (7) day
period
immediately after such notice to determine the consequences of such
circumstance, and Seller or Buyer, as applicable, may elect to terminate
this
Agreement after the expiration of such seven (7) day period, which termination
will be subject to Section 10.1 below.
SECTION
7. EMPLOYEES
7.1 Offer
of Employment.
Purchaser shall offer employment as of the Closing Date to each of the employees
identified on Schedule 7.1 (the "Designated Employees"), attached hereto
(which
Schedule includes the position and base salary or wage level of each Designated
Employee), on at least the same wage rates or cash salary levels.
7.2 No
Third Party Beneficiaries.
Nothing
herein is intended to, and shall not be construed to, create any third party
beneficiary rights of any kind or nature, including, without limitation,
the
right of any Designated Employee or other individual to seek to enforce any
right to compensation, benefits, or any other right or privilege of employment
with Seller or Purchaser.
SECTION
8. CONDITIONS
PRECEDENT TO OBLIGATIONS OF PURCHASER
The
obligations of Purchaser under this Agreement shall, at the option of Purchaser,
be subject to the satisfaction or waiver, on or prior to the Closing Date,
of
the following conditions:
8.1 No
Misrepresentation or Breach of Covenants and Warranties.
The
representations and warranties of Seller made in this Agreement shall be
true
and correct in all material respects: (a) as of the date hereof; and
(b) on and as of the Closing Date, as though made on such date. Seller
shall have performed or complied in all material respects with all obligations
and covenants required by this Agreement to be performed or complied with
by
Seller on or before the Closing Date, and Seller shall have delivered to
Purchaser a certificate dated as of the Closing Date and signed by an authorized
officer of Seller confirming the foregoing.
8.2 Necessary
Governmental Approvals.
All
approvals and actions of or by all Governmental Authorities which are necessary
to consummate the transactions contemplated hereby shall have been obtained
or
taken place, other than those as to which the failure to have been obtained
or
taken place would not reasonably be expected to result in a Material Adverse
Effect.
8.3 Deliveries
by Seller.
Seller
shall have delivered to Purchaser at Closing all of the items specified to
be
delivered by Seller in Section 3.3.
8.4 No
Injunction.
There
shall not be in effect on the Closing Date any Court Order restraining or
enjoining the carrying out of this Agreement or the consummation of the
transactions contemplated by this Agreement.
8.5 Employees.
Each of
the Designated Employees shall have accepted Purchaser's offer of
employment.
SECTION
9. CONDITIONS
PRECEDENT TO OBLIGATIONS OF SELLER
The
obligations of Seller under this Agreement shall, at the option of Seller,
be
subject to the satisfaction or waiver, on or prior to the Closing Date, of
the
following conditions:
9.1 No
Misrepresentation or Breach of Covenants and Warranties.
The
representations and warranties of Purchaser made in this Agreement shall
be true
and correct: (a) as of the date hereof; and (b) on and as of the Closing
Date, as though made on such date. Purchaser shall have performed or complied
in
all material respects with all obligations and covenants required by this
Agreement to be performed or complied with by Purchaser on or before the
Closing
Date; and Purchaser shall have delivered to Seller a certificate dated as
of the
Closing Date and signed by an authorized officer of Purchaser confirming
the
foregoing.
9.2 Necessary
Governmental Approvals.
All
approvals and actions of or by all Governmental Authorities which are necessary
to consummate the transactions contemplated hereby shall have been obtained
or
taken place, other than those as to which the failure to have been obtained
or
taken place would not reasonably be expected to result in any Liability to
Seller or to result in any violation of any Law.
9.3 Payment
of Purchase Price.
Purchaser shall have paid to Seller the Purchase Price required to be paid
pursuant to Section 1.2.
9.4 Delivery
by Purchaser.
Purchaser shall have delivered to Seller at Closing all of the items specified
to be delivered by Purchaser in Section 3.2.
9.5 No
Injunction.
There
shall not be in effect on the Closing Date any Court Order restraining or
enjoining the carrying out of this Agreement or the consummation of the
transactions contemplated by this Agreement.
SECTION
10. TERMINATION
10.1 Termination.
This
Agreement may be terminated, and the transactions contemplated hereby may
be
abandoned:
(a) At
any
time before the Closing, by written agreement of Seller and
Purchaser;
(b) At
any
time before the Closing, by Seller or Purchaser, upon notification to the
other
Party, in the event that any Order or Law becomes effective restraining,
enjoining or otherwise prohibiting or making illegal the consummation of
any of
the transactions contemplated by this Agreement; or
(c) At
any
time after April 15, 2006 by Seller or Purchaser, upon notification to the
other
Party, if the Closing shall not have occurred and such failure to consummate
is
not caused by a breach of this Agreement by the terminating Party.
10.2 Effect
of Termination
If this
Agreement is validly terminated pursuant to Section 10.1, this Agreement
will forthwith become null and void, and there will be no liability or
obligation on the part of Seller or Purchaser (or any of their respective
Representatives or Affiliates), except as provided in the next succeeding
sentence and except that the provisions with respect to expenses in
Section 12.2 and confidentiality in Section 12.3 will continue to
apply following any such termination. Notwithstanding any other provision
to the
contrary, upon termination of this Agreement pursuant to Section 10.1(b) or
(c), each Party will remain liable to the other Party for any willful breach
of
Section 6.5 of this Agreement by such Party existing at the time of such
termination, and the non-breaching Party may seek such remedies against the
other Party with respect to any such breach as are provided in this Agreement
or
as are otherwise available at Law or in equity.
SECTION
11. SURVIVAL
AND INDEMNIFICATION
11.1 Survival
of Covenants, Representations and Warranties.
The
covenants, representations and warranties of Seller and Purchaser contained
in
this Agreement shall survive the Closing until the date that is twelve (12)
months from the Closing Date. This Section shall not limit in any way the
survival of any covenant or agreement of a Party to be performed after the
Closing Date, which shall survive for the applicable period set forth
herein.
11.2 Indemnification
By Seller.
After
the Closing Date, Seller agrees to indemnify and hold harmless Purchaser
from
and against any and all Losses incurred by Purchaser arising from: (a) any
breach of any warranty or the inaccuracy of any representation of Seller
contained in this Agreement, and (b) any breach by Seller of, or failure by
Seller to perform, any of its covenants or obligations contained in this
Agreement.
11.3 Indemnification
by Purchaser.
After
the Closing Date, Purchaser agrees to indemnify and hold harmless Seller
from
and against any and all Losses incurred by Seller arising from: (a) any
breach of any warranty or the inaccuracy of any representation of Purchaser
contained in this Agreement, and (b) any breach by Purchaser of, or failure
by Purchaser to perform, any of its covenants or obligations contained in
this
Agreement.
11.4 Notice
of Claims.
In the
event Purchaser or Seller seeks indemnification hereunder (such Party, an
"Indemnified Party") such Party shall give promptly to the Party obligated
to
provide indemnification to such Indemnified Party (the "Indemnitor") a written
notice (a "Claim Notice") describing in reasonable detail the facts giving
rise
to the claim for indemnification hereunder; provided, however, that the failure
of any Indemnified Party to give the Claim Notice promptly as required by
this
Section 11.4 shall not affect such Indemnified Party's rights except to the
extent such failure is actually prejudicial to the rights and obligations
of the
Indemnitor.
11.5 Mitigation.
Each of
the Parties agrees to take all reasonable steps to mitigate their respective
Losses upon and after becoming aware of any event or condition which could
reasonably be expected to give rise to any Losses that are indemnifiable
hereunder.
11.6 Subrogation.
Upon
making any payment to the Indemnified Party for any indemnification claim,
the
Indemnitor shall be subrogated, to the extent of such payment, to any rights
which the Indemnified Party may have against any third-person with respect
to
the subject matter underlying such indemnification claim and the Indemnified
Party shall assign any such rights to the Indemnitor.
11.7 Warranty.
In
addition to the representations and warranties made by Seller herein, Seller
hereby warrants to Purchaser that the D180 and all Equipment shall remain
in all
material respects in good working order and condition for a period of 30
days
after the Closing Date. This warranty is conditioned upon the absence of
any
kind of misuse or neglect.
SECTION
12. GENERAL
PROVISIONS
12.1 Notices.
All
notices, requests and other communications hereunder shall be in writing
and
shall be deemed to have been duly given if delivered personally or by facsimile
transmission or mailed (first class postage prepaid) to the other Party at
the
following addresses or facsimile numbers:
If
to
Seller, to:
APA
Enterprises, Inc.
2950
N.E.
84th
Lane
Blaine,
MN 55449
Facsimile
No.:
Attn:
Anil K. Jain, Ph.D.
If
to
Purchaser, to:
International
Rectifier Corporation
233
Kansas Street
El
Segundo, CA 90245
Facsimile
No.: (310) 726-8484
Attn:
Executive Vice President and General Counsel
All
such
notices, requests and other communications will be deemed given upon receipt.
Any Party from time to time may change its address, facsimile number or other
information for the purpose of notices to that Party by giving notice specifying
such change to the other Party.
12.2 Expenses.
Except
as otherwise expressly provided in this Agreement (including without limitation
as provided in Section 10.2), whether or not the transactions contemplated
hereby are consummated, each Party will pay its own costs and expenses incurred
in connection with the negotiation, execution and closing of this Agreement
and
the transactions contemplated hereby.
12.3 Confidentiality.
Each
Party hereto will hold, and will cause its Representatives to hold in strict
confidence all documents and information concerning the other Party or any
of
its Affiliates furnished to it by the other Party or such other Party’s
Representatives in connection with this Agreement or the transactions
contemplated hereby unless (i) compelled to disclose by judicial or
administrative process (including without limitation in connection with
obtaining the necessary approvals of this Agreement and the transactions
contemplated hereby of Governmental Authorities) or by other requirements
of Law
or (ii) disclosed in an Action or Proceeding brought by a Party in pursuit
of its rights or in the exercise of its remedies hereunder; provided that
the
foregoing covenant of confidentiality shall not apply to documents or
information that is shown to have been (a) previously known by the receiving
Party, (b) in the public domain (either prior to or after the furnishing
of such
documents or information hereunder) through no fault of such receiving Party
or
(c) later acquired by the receiving Party from another source if the receiving
Party is not aware that such source is under an obligation to the other Party
to
keep such documents and information confidential. In the event the transactions
contemplated hereby are not consummated, upon the request of the other Party,
each Party will, and will cause its Representatives to, promptly redeliver
or
cause to be redelivered all copies of confidential documents and information
furnished by the other Party in connection with this Agreement or the
transactions contemplated hereby and destroy or cause to be destroyed all
notes,
memoranda, summaries, analyses, compilations and other writings related thereto
or based thereon prepared by such Party or its Representatives.
12.4 Waiver.
Any
term or condition of this Agreement may be waived at any time by the Party
that
is entitled to the benefit thereof, but no such waiver shall be effective
unless
set forth in a written instrument duly executed by or on behalf of the Party
waiving such term or condition. No waiver by a Party of any term or condition
of
this Agreement, in any one or more instances, shall be deemed to be or construed
as a waiver of the same or any other term or condition of this Agreement
on any
future occasion. All remedies, either under this Agreement or afforded by
Law,
are cumulative and not alternative.
12.5 Amendment.
This
Agreement may be amended, supplemented or modified only by a written instrument
duly executed by each Party.
12.6 No
Third Party Beneficiary.
The
terms and provisions of this Agreement are intended solely for the benefit
of
the Parties hereto and their respective successors or permitted assigns,
and it
is not the intention of the Parties to confer third-party beneficiary rights
upon any other Person.
12.7 No
Assignment; Binding Effect.
Neither
this Agreement nor any right, interest or obligation hereunder may be assigned
by either Party without the prior written consent of the other Party and
any
attempt to do so will be void, except (a) for assignments and transfers by
operation of Law, and (b) that Purchaser may assign any or all of its
rights, interests and obligations hereunder to a wholly-owned subsidiary,
provided that such subsidiary agrees in writing to be bound by all of the
provisions contained herein. Subject to the preceding sentence, this Agreement
is binding upon, inures to the benefit of and is enforceable by the Parties
and
their respective successors and assigns.
12.8 Headings.
The
headings used in this Agreement have been inserted for convenience of reference
only and do not define or limit the provisions hereof.
12.9 Invalid
Provisions.
If any
provision of this Agreement is held to be illegal, invalid or unenforceable,
and
if the rights or obligations of a Party under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
and (c) the remaining provisions of this Agreement will remain in full
force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom.
12.10 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the Laws
of the
State of California applicable to a contract executed and performed in such
State, without giving effect to the conflicts of laws principles
thereof.
12.11 Jurisdiction;
Waiver of Jury Trial.
The
Parties hereby agree that any Action or Proceeding arising out of or related
to
this Agreement shall be conducted only in the County of Los Angeles, California.
Each Party hereby irrevocably consents and submits to the exclusive personal
jurisdiction of and venue in the federal and state courts located in the
County
of Los Angeles, California. Each Party hereby waives to the fullest extent
permitted by applicable Law, any right it may have to a trial by jury in
respect
of any litigation directly or indirectly arising out of, under or in connection
with this Agreement or any transaction contemplated hereby. Each Party agrees
that service of any summons, complaint or other initial pleading made in
the
manner provided for the giving of notices in Section 12.1 shall be effective
service in such Action or Proceeding. Nothing in this Section 12.11, however,
shall affect the right of a Party to serve such summons, complaint or initial
pleading in any other manner permitted by Law.
12.12 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which will
be
deemed an original, but all of which together will constitute one and the
same
instrument.
12.13 Interpretation.
The
Schedules referred to herein are an integral part of this Agreement to the
same
extent as if they were set forth verbatim herein. This Agreement shall be
construed without regard to any presumption or rule requiring construction
or
interpretation against the Party drafting or causing any instrument to be
drafted.
12.14 Entire
Agreement.
This
Agreement, including the Exhibits and Schedules hereto, supersedes all prior
discussions and agreements between the Parties with respect to the subject
matter hereof and contains the sole and entire agreement between the Parties
hereto with respect to the subject matter hereof.
12.15 Circular
230 Disclaimer.
EACH
PARTY TO THIS AGREEMENT ACKNOWLEDGES AND AGREES THAT (1) NO PROVISION OF
THIS
AGREEMENT, AND NO WRITTEN COMMUNICATION OR DISCLOSURE BETWEEN OR AMONG THE
PARTIES OR THEIR ATTORNEYS AND OTHER ADVISERS, IS OR WAS INTENDED TO BE,
NOR
SHALL ANY SUCH COMMUNICATION OR DISCLOSURE CONSTITUTE OR BE CONSTRUED OR
BE
RELIED UPON AS, TAX ADVICE WITHIN THE MEANING OF UNITED STATES TREASURY
DEPARTMENT CIRCULAR 230 (31 CFR PART 10, AS AMENDED); (2) THE ACKNOWLEDGING
PARTY (A) HAS RELIED EXCLUSIVELY UPON ITS OWN, INDEPENDENT LEGAL AND TAX
ADVISERS FOR ADVICE (INCLUDING TAX ADVICE) IN CONNECTION WITH THIS AGREEMENT,
(B) HAS NOT ENTERED INTO THIS AGREEMENT BASED UPON THE RECOMMENDATION OF
ANY
ATTORNEY OR ADVISOR TO THE OTHER PARTY, AND (C) IS NOT ENTITLED TO RELY UPON
ANY
COMMUNICATION OR DISCLOSURE BY ANY ATTORNEY OR ADVISER TO THE OTHER PARTY
TO
AVOID ANY TAX PENALTY THAT MAY BE IMPOSED ON THE ACKNOWLEDGING PARTY; AND
(3) NO
ATTORNEY OR ADVISER TO THE OTHER PARTY HAS IMPOSED ANY LIMITATION THAT PROTECTS
THE CONFIDENTIALITY OF ANY SUCH ATTORNEY'S OR ADVISER'S TAX STRATEGIES
(REGARDLESS OF WHETHER SUCH LIMITATION IS LEGALLY BINDING) UPON DISCLOSURE
BY
THE ACKNOWLEDGING PARTY OF THE TAX TREATMENT OR TAX STRUCTURE OF ANY
TRANSACTION, INCLUDING ANY TRANSACTION CONTEMPLATED BY THIS
AGREEMENT.
IN
WITNESS WHEREOF, the Parties hereto have caused this Asset Purchase Agreement
to
be executed and delivered as of the day and year first written
above.
|
APA
ENTERPRISES, INC.
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INTERNATIONAL
RECTIFIER CORPORATION
|
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By:
|
/s/
Anil K. Jain
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By: |
/s/
Alexander Lidow
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Name:
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Anil
K. Jain
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Name: |
Alexander
Lidow
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Title:
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CEO
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Title: |
CEO
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Exhibit
A
CERTAIN
DEFINITIONS
In
this
Agreement, the following terms have the meanings specified or referred to
in
this Exhibit A and shall be equally applicable to both the singular and plural
forms. Any agreement referred to below shall mean such agreement as amended,
supplemented and modified from time to time to the extent permitted by the
applicable provisions thereof and by this Agreement.
"Action
or Proceeding"
means
any lawsuit, legal proceeding, litigation, arbitration or action.
"Affiliate"
means
any Person that directly, or indirectly through one of more intermediaries,
controls or is controlled by or is under common control with the Person
specified. For purposes of this definition, control of a Person means the
power,
direct or indirect, to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agreement"
means
this Asset Purchase Agreement, together with the Schedules and Exhibits attached
hereto.
"Assets"
is
defined in Section 1.1(a).
"Benefit
Plan"
means
any bonus, incentive compensation, deferred compensation, pension, profit
sharing, retirement, stock, stock option, leave of absence, layoff, vacation,
dependent care, life, health, accident, disability, workmen’s compensation or
other insurance, severance, separation or other employee benefit plan or
arrangement, existing at the Closing Date, to which Seller contributes or
has
contributed on behalf of any Designated Employee.
"Business
Day"
means a
day other than Saturday, Sunday or any day on which banks located in the
State
of California are authorized or obligated to close.
"Closing"
means
the consummation of the transactions contemplated by
Section 2.
"Closing
Date"
is
defined in Section 2.1.
"Code"
means
the Internal Revenue Code of 1986, as amended.
"Court
Order"
means
any judgment, order, writ, decision, injunction, award or decree of any foreign,
federal, state, local or other court or tribunal and any ruling or award
in any
binding arbitration proceeding.
"Consumables"
is
defined in Section 1.1(a)(iii).
"D180"
is
defined in Section 1.1(a)(i).
"Designated
Employee"
is
defined in Section 7.1.
"Encumbrance"
means
any lien, encumbrance, claim, charge, security interest, mortgage, deed of
trust, pledge, easement, conditional sale or other title retention agreement,
defect in title or other restriction of a similar kind.
"Equipment"
is
defined in Section 1.1(a)(iv).
"Expenses"
means
any and all reasonable out-of-pocket expenses incurred in connection with
investigating, defending or asserting any claim, action, suit or proceeding
incident to any matter indemnified against hereunder (including, without
limitation, court filing fees, court costs, arbitration fees or costs, witness
fees and reasonable fees and disbursements of legal counsel, investigators,
expert witnesses, accountants and other professionals).
"GaN
Intellectual Property"
is
defined in Section 1.1(a)(v).
"Governmental
Authority"
means
any court, tribunal, arbitrator, authority, agency, commission, official
or
other instrumentality of the United States or any state, county, city or
other
political subdivision thereof.
"Intellectual
Property"
means
all patents and patent rights, trademarks and trademark rights, trade names
and
trade name rights, service marks and service mark rights, service names and
service name rights, brand names, inventions, copyrights and copyright rights,
processes, formulae, trade dress, business and product names, logos, slogans,
trade secrets, works of authorship, mask works, industrial models, processes,
designs, methodologies, computer programs (including all source codes) and
related documentation, technical information, manufacturing, engineering
and
technical drawings, know-how and all pending applications for and registrations
of patents, trademarks, service marks and copyrights.
"IR"
is
defined in the preamble of this Agreement.
"Knowledge
of Seller,"
"Seller's
Knowledge"
or
"Knowledge,"
when
used in connection with Seller, means, as to a particular matter, the actual
knowledge of the officers of Seller.
"Law"
means
any law, statute, treaty, rule, regulation, ordinance, order, decree, consent
decree or similar instrument or determination or award of an arbitrator or
a
court or any other Governmental Authority.
"Liability
(and
with
correlative meaning, "Liabilities")"
means
all indebtedness, obligations, damages, fines, fees, and other liabilities
(or
contingencies that have not yet become liabilities), whether absolute, accrued,
matured, contingent (or based upon any contingency), known or unknown, fixed
or
otherwise, or whether due or to become due, including without limitation,
any
fines, penalties, judgments, awards or settlements respecting any judicial,
administrative or arbitration proceedings or any damages, losses, claims
or
demands with respect to any Law.
"Liens"
means
any mortgage, pledge, assessment, security interest, lease, lien, adverse
claim,
levy, charge or other encumbrance of any kind, or any conditional sale contract,
title retention contract or other contract to give any of the
foregoing.
"Material
Adverse Effect"
means
any change, circumstance or effect that has a material adverse effect on
the
Assets taken as a whole.
"Permits"
means
all licenses, permits, franchises, approvals, authorizations, consents or
orders
of, or filings with, any Governmental Authority, or any other Person, necessary
for use of the Assets.
"Permitted
Liens"
is
defined in Section 4.3.
"Person"
means
an individual, partnership, corporation, business trust, joint stock company,
trust, unincorporated association, joint venture, Governmental Authority
or
other entity of whatever nature.
"Purchase
Price"
is
defined in Section 1.2.
"Purchaser"
is
defined in the preamble of this Agreement.
"Seller"
is
defined in the preamble of this Agreement.
"Spare
Parts"
is
defined in Section 1.1(a)(ii).
"Tax"
(and,
with correlative meaning, "Taxes") means any federal, state, local or foreign
income, gross receipts, property, sales, use, license, excise, franchise,
employment, payroll, withholding, alternative or add-on minimum, ad valorem,
transfer or excise tax, or any other tax, custom, duty, governmental fee
or
other like assessment or charge of any kind whatsoever, together with any
interest or
penalty, imposed by any Governmental Authority.
"Transaction
Agreements"
means
all agreements, instruments and documents being or to be executed and delivered
by a Party pursuant to this Agreement.
"Veeco"
is
defined in Section 1.1(a)(i).
For
the
avoidance of doubt, unless the context of this Agreement otherwise requires,
(i)
words of any gender include each other gender; (ii) words using the singular
or
plural number also include the plural or singular number, respectively; (iii)
the terms "hereof," "herein," "hereby" and derivative or similar words refer
to
this entire Agreement; (iv) the term "Section" refers to the specified Section
of this Agreement; and (v) the term "including" means "including, without
limitation." Whenever this Agreement refers to a number of days, such number
shall refer to calendar days unless Business Days are specified. Any
representation or warranty contained herein as to the enforceability of a
contract shall be subject to the effect of any bankruptcy, insolvency,
reorganization, moratorium or other similar law affecting the enforcement
of
creditors' rights generally and to general equitable principles (regardless
of
whether such enforceability is considered in a proceeding in equity or at
Law).
Exhibit
B
PATENT
AND TECHNOLOGY LICENSE AGREEMENT
Exhibit
C
CONSULTING
AGREEMENT
Exhibit
D
BILL
OF
SALE
THIS
BILL
OF SALE is dated as of March 9, 2006 by and between International Rectifier
Corporation, a Delaware corporation ("Purchaser") and APA Enterprises, Inc.,
a
Minnesota corporation ("Seller").
WHEREAS,
Purchaser and Seller have entered into an Asset Purchase Agreement, dated
as of
March 9, 2006 (the “Asset
Purchase Agreement”;
capitalized terms not defined herein shall have the meanings ascribed to
them in
the Asset Purchase Agreement), pursuant to which Seller has agreed to sell,
transfer, convey, assign and deliver to Purchaser and Purchaser has agreed
to
purchase from Seller the assets described in Section 1.1 of the Asset Purchase
Agreement (the "Assets");
WHEREAS,
Seller desires to transfer and assign to Purchaser the Assets and Purchaser
desires to accept the sale, transfer, conveyance, assignment and delivery
thereof;
NOW,
THEREFORE, for and in consideration of the mutual covenants contained herein
and
other good and valuable consideration the receipt and sufficiency of which
are
hereby acknowledged, Seller hereby irrevocably sells, transfers, conveys,
assigns and delivers to Purchaser the Assets, TO HAVE AND TO HOLD the same
unto
Purchaser, its successors and assigns, forever.
Purchaser
hereby accepts the sale, transfer, conveyance, assignment and delivery of
the
Assets.
At
any
time or from time to time after the date hereof, at Purchaser’s request and
without further consideration, Seller shall execute and deliver to Purchaser
such other instruments of sale, transfer, conveyance, assignment and
confirmation, provide such materials and information and take such other
actions
as Purchaser may reasonably deem necessary or desirable in order more
effectively to transfer, convey and assign to Purchaser, and to confirm
Purchaser’s title to, all of the Assets.
This
Bill
of Sale may be executed in any number of counterparts, each of which will
be
deemed an original, but all of which together will constitute one and the
same
instrument.
This
Bill
of Sale shall be governed by and construed in accordance with the laws of
the
State of California applicable to a contract executed and performed in such
State without giving effect to the conflicts of laws principles thereof,
except
that if it is necessary in any other jurisdiction to have the law of such
other
jurisdiction govern this Bill of Sale in order for it to be effective in
any
respect, then the laws of such other jurisdiction shall govern this Bill
of Sale
to such extent.
IN
WITNESS WHEREOF, the undersigned have caused their duly authorized officers
to
execute this Bill of Sale on the day and year first above written.
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PURCHASER:
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International
Rectifier Corporation, a Delaware corporation
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By:
|
/s/
Alexander Lidow
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Name:
Alexander Lidow
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| |
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Title:
CEO
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SELLER:
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APA
Enterprises, Inc., a Minnesota corporation
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By:
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/s/
Anil K. Jain
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Name:
Anil K. Jain
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Title:
CEO
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