Trident Microsystems, Inc.(fka TRIDQ)

[eighty]

excluded assets and assumed liabilities in the revised bid









lers be deemed to sell, transfer, assign or convey, and Sellers shall retain all right, title and
interest to, in and under only the following assets, properties, interests and rights of such Sellers
(collectively, the “Excluded Assets”):
(a) all Patent Rights;
(b) all tangible assets located in the Sellers’ facility in Bangalore, India;
(c) the Excluded Royalties;
(d) all Retained Contracts as set forth on Schedule 1.2(d);
(e) all (i) existing products and products under development of the Seller’s STB
Business, the Audio Business and the Terrestrial Demod Products Business and (ii) all masks for such
products;
(f) any asset that otherwise would constitute a Purchased Asset but for the fact that it
is sold or otherwise disposed of in the Ordinary Course of Business of the Sellers, during the time from
the Agreement Date until the Closing Date;
(g) all of Sellers’ and each Seller Subsidiary’s Cash and Cash Equivalents, except for
(i) any cash and cash equivalents included in the Current Assets Statement, if any, or taken into account in
calculating the Final Current Assets and (ii) any cash and cash equivalents set forth on Schedule 1.2(g);
(h) all rights of Sellers to Claims for refunds that do not constitute a Purchased Asset
hereunder;
(i) all outstanding shares of capital stock or other equity or ownership interests held
by Sellers in any direct or indirect subsidiary;
(j) any and all information not relating to the Business that is stored on any Seller’s
computer systems, data networks or servers;
(k) all personnel files for Seller Employees other than personnel files for Transferred
Employees to the extent permitted by Law to be delivered to Purchaser;
(l) all Documents (i) to the extent they relate solely to any of the Excluded Assets or
Excluded Liabilities, or (ii) that any Seller is required by Law to retain and is prohibited by Law from
providing a copy thereof to the Purchaser;
(m) all shares of capital stock or other equity interests of any Seller or securities
convertible into, exchangeable or exercisable for any such shares of capital stock or other equity interests; 5
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(n) all preference or avoidance claims and actions of the Seller arising under
Sections 544, 547, 548, 549, and 550 of the Bankruptcy Code other than the Preference Avoidance
Claims;
(o) all Claims that any of the Sellers may have against any Person solely with respect
to any other Excluded Assets or that relate to any Liability other than the Assumed Liabilities;
(p) all commercial off-the-shelf Software loaded on desktop or laptop computers that
are not part of the Tangible Assets;
(q) except as provided in Section 8.16 below, the names and trademarks “Trident
Microsystems, Inc.”, any other use of “Trident Microsystems” together with any other word or phrase,
including the Trident Microsystems logo and all other trademarks belonging to the Sellers, except for
those trademarks specifically set forth on Schedule 1.2(q) (the “Assumed Trademarks”);
(r) the Sellers’ financial accounting books and records, corporate charter, minute and
stock record books, income tax returns, corporate seal, checkbooks and canceled checks;
(s) Sellers’ rights under this Agreement, the Purchase Price hereunder, any
agreement, certificate, instrument or other document executed and delivered by any Seller or Purchaser in
connection with the transactions contemplated hereby, or any side agreement between any Seller and
Purchaser entered into on or after the Agreement Date;
(t) the properties and assets set forth on Schedule 1.2(t);
(u) all rights (including any claims, rights and interest in and to any refunds for
Taxes with respect to the Purchased Assets and Business for Pre-Closing Tax Periods) relating to the
Excluded Liabilities;
(v) all rights of the Sellers under this Agreement, the Purchase Price hereunder, any
agreement, certificate, instrument or other document executed and delivered by any Seller or Purchaser in
connection with the transactions contemplated hereby, or any side agreement between any Seller and
Purchaser entered into on or after the Agreement Date; and
(w) trade accounts receivable, customer purchase orders, notes receivable, negotiable
instruments and chattel paper not arising from the Business, including that certain note receivable from
NXP classified as a note receivable from related party on the Updated Carve-Out Financial Statements.
1.3 Assumption of Liabilities. On the terms and subject to the conditions set forth in this
Agreement and the Sale Order, effective as of the Closing, the Purchaser shall assume from the Sellers
(and thereafter pay, perform, discharge or otherwise satisfy in accordance with their respective terms),
and the Sellers shall irrevocably convey, transfer and assign to Purchaser, the following Liabilities
(collectively, the “Assumed Liabilities”):
(a) all Liabilities and obligations under the Assigned Contracts (other than those
which are not assignable under Section 365 of the Bankruptcy Code or as to which Consent is required to
be obtained from any Person in order to permit the sale or transfer of the Assigned Contract) arising out
of the conduct of the Business from and after the Closing Date;
(b) any Liabilities arising out of the conduct of the Business or the ownership of the
Purchased Assets, in each case, from and after the Closing Date; 6
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(c) open purchase orders arising out of the conduct of the Business, including
inventory held at NXP set forth on Schedule 1.3(c) (the “NXP Purchase Orders”);
(d) all Taxes related to the operation of the Business by Purchaser attributable to
periods or portions thereof beginning on or after the Closing Date, including, without limitation,
Liabilities for Taxes attributable to the ownership of the Purchased Assets from and after the Closing
Date;
(e) the obligation to credit to all Transferred Employees all vacation or other paid
time off accrued or vested for each such Transferred Employee as of the Closing Date (“Assumed PTO”);
(f) all Liabilities relating to amounts required to be paid by Purchaser under this
Agreement; and
(g) all Liabilities and transfer charges arising from third party licenses set forth on
Schedule 1.3(g)
(h) all Liabilities arising from the customer prepaid wafer starts from Philips
Consumer Lifestyle B.V. and Metz-Werke GmbH & Co KG;
(i) all Liabilities arising under the MSA;
(j) cost and expenses associated with storage, transportation, and related taxes of
acquired Business tangible assets held at sites other than where employees were transferred from;
(k) with respect to the Liabilities listed on Schedule 1.3(k), the parties will each pay
50% of the total costs; and
(l) all Liabilities set forth on Schedule 1.3(l).
1.4 Excluded Liabilities. Notwithstanding any provision in this Agreement to the contrary,
the Purchaser is assuming only the Assumed Liabilities and is not assuming, and shall not be deemed to
have assumed, any Liabilities of any Seller of whatever nature (whether arising prior to, at the time of, or
subsequent to Closing) and the Sellers shall be solely and exclusively liable for any and all such
Liabilities, including those relating to, arising out of or in connection with the operation of the Business
or the Purchased Assets (including the use and ownership thereof) at any time prior to the Closing Date,
and those Liabilities set forth below (collectively, the “Excluded Liabilities”):
(a) all Liabilities of the Sellers relating to or otherwise arising, whether before, on or
after the Closing, out of, or in connection with, any of the Excluded Assets;
(b) any and all Liabilities of the Sellers in respect of Contracts that are NonAssigned Contracts;
(c) any Liabilities under any Assigned Contract that relate to a breach of or default
under, or any non-compliance with Laws with respect to, any such Assigned Contract that occurred on or
prior to the Closing Date;
(d) any Liabilities for wages, bonuses, retention bonuses or payments, employee
benefits, accrued vacation, or other accrued or vested paid time off, assessments, severance or other
employment compensation for any employees, or employer Taxes, including without limitation, any 7
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arising from the vesting of any equity grants upon the closing of the transactions contemplated hereby
other than Assumed PTO, or unpaid amounts to any consultants of the Sellers accrued or arising prior to
the Closing;
(e) all warranty and return obligations, including, without limitation, all Liabilities
and obligations to repair or replace, or to refund the sales price (or any other related expenses) for
Inventory sold prior to the Closing Date;
(f) any and all Liabilities for Taxes attributable to the operation of the Business on
or prior to the Closing Date and any and all Liabilities (whether direct or as a result of successor liability,
transferee liability, joint and several liability or contractual liability) for Taxes that are unrelated to the
Purchased Assets;
(g) any costs and expenses incurred by the Sellers incident to the negotiation and
preparation of this Agreement and the transactions contemplated hereby and any Liability of the Sellers to
pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated
hereby;
(h) any and all Liabilities of the Sellers in respect of the WARN Act or under any
similar provision of any federal, state, provincial, regional, foreign or local Law that might arise or have
arisen on or prior to the Closing Date; and
(i) all Liabilities set forth on Schedule 1.4(i).
1.5 Post Closing Liabilities. Purchaser acknowledges that Purchaser shall be responsible for
all Liabilities and obligations relating to Purchaser’s ownership or use of, or right to use, the Purchased
Assets and the Assumed Liabilities after the Closing Date, including without limitation all Taxes arising
out of or related to the Purchased Assets or the operation of conduct of the Business acquired pursuant to
this Agreement for all Tax periods beginning on or after the Closing Date.
1.6 Assumption/Rejection of Certain Contracts.
(a) As of the Closing, Sellers shall assume pursuant to Section 365(a) of the
Bankruptcy Code and sell and assign to Purchaser pursuant to Sections 363(b), (f) and (m) and
Section 365(f) of the Bankruptcy Code each of the Assigned Contracts. Except as provided in
Section 1.6(b), Purchaser shall assume and thereafter pay, fully satisfy, discharge and perform all of the
obligations under the Assigned Contracts in accordance with the terms of such Assigned Contracts and
pursuant to Section 365 of the Bankruptcy Code. The Sellers shall reject all contracts other than the
Assigned Contracts and Purchaser shall have no liability relating to any such rejected contract.
(b) The Sellers shall have paid all Liabilities and obligations under the Assigned
Contracts, including, without limitation, Cure Costs, and to the extent not paid, the Purchaser may pay the
Cure Costs to the applicable Third Parties and deduct such Cure Costs from the Cash Amount prior to the
Closing.
1.7 Foreign Assets.
(a) A list of the Purchased Assets used in foreign operations of the Seller and the
Seller Subsidiaries by country (the “Foreign Assets”) is set forth on Schedule 1.7(a). The Purchased
Assets shall be sold, conveyed, transferred, assigned and delivered, and the Assumed Liabilities shall be
assumed, pursuant to transfer and assumption agreements and such other instruments in such form as may 8
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be necessary or appropriate to effect a conveyance of the Purchased Assets and an assumption of the
Assumed Liabilities in the jurisdictions in which such transfers are to be made. Such transfer and
assumption agreements and other instruments and documents shall be jointly prepared by the Parties and
shall include (i) the Bill of Sale, (ii) the Assignment and Assumption Agreement, (iii) the Cayman Sale
Order, (iv) an allocation of the Purchase Price to the Purchased Assets located within each jurisdiction
and (v) to the extent reasonably requested by Purchaser or otherwise required by Law, local asset transfer
agreements for each jurisdiction other than the United States (including without limitation the People’s
Republic of China in which Purchased Assets or Assumed Liabilities are located (“Local Asset Transfer
Agreements”), and (vi) such other agreements as may reasonably be required to effect the purchase and
assignment of the Purchased Assets and Assumed Liabilities, and shall be executed no later than at or as
of the Closing by the Seller and/or one or more of its Seller Subsidiaries, as appropriate, and Purchaser or
one or more of its Subsidiaries, as appropriate. Such assignment, transfer or conveyance shall be
effective as of such times as provided in each respective Transaction Document and shall be subject to the
terms and conditions of this Agreement or other Transaction Document. The Foreign Assets shall
otherwise be treated as Purchased Assets for all purposes under this Agreement.
(b) Purchaser shall use commercially reasonable efforts prior to the Closing Date to
establish such foreign subsidiaries necessary to effect the sale of the Purchased Assets held outside of the
United States in the jurisdictions listed on Schedule 1.7(b). Purchaser to provide any jurisdictions where
Purchaser is assuming assets and does not have an existing subsidiary. To the extent that Purchaser has
been unable to complete the formation of any new Subsidiaries required to operate in any such
jurisdiction by the Closing Date, Purchaser shall have the right to delay closing the transfer of any assets
under any of the Local Asset Transfer Agreements beyond the Closing Date for 60 days from the Closing
Date; provided, however, that from and after the Closing Date, Purchaser shall pay directly or reimburse
Seller for all direct operating costs related to such Purchased Assets, including lease payments for the
subject facility, and shall enter into a secondment agreement with the Seller or its applicable Seller
Subsidiary pursuant to which Purchaser shall pay the salary and benefits of the subject Transferred
Employees located in such jurisdiction. Between the Closing Date and the date of the closing under each
Local Asset Transfer Agreement, Seller and each Seller Subsidiary shall (i) provide access to Purchaser
and its Subsidiaries to the Purchased Assets subject to such Local Asset Transfer Agreement, and (ii)
allow Purchaser to conduct business in such jurisdiction using such Purchased Assets as part of the
Transition Agreement.
1.8 Disclaimer. PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT,
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ARTICLE IV AND OTHERWISE IN THIS
AGREEMENT, THE SELLERS MAKE NO REPRESENTATIONS OR WARRANTIES
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER RELATING TO
THE PURCHASED ASSETS. WITHOUT LIMITING THE FOREGOING, SELLERS HEREBY
DISCLAIM ANY WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE AS TO ANY PORTION OF THE PURCHASED ASSETS.
PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER HAS CONDUCTED AN
INDEPENDENT INSPECTION AND INVESTIGATION OF THE PHYSICAL CONDITION OF THE
PURCHASED ASSETS AND ALL SUCH OTHER MATTERS RELATING TO OR AFFECTING THE
PURCHASED ASSETS AS PURCHASER DEEMED NECESSARY OR APPROPRIATE AND THAT
IN PROCEEDING WITH ITS ACQUISITION OF THE PURCHASED ASSETS, EXCEPT FOR ANY
REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT,
PURCHASER IS DOING SO BASED SOLELY UPON SUCH INDEPENDENT INSPECTIONS AND
INVESTIGATIONS. 9
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ARTICLE II
CONSIDERATION; PAYMENT; ADJUSTMENT
2.1 Consideration; Payment. The aggregate consideration (collectively, the “Purchase
Price”) to be paid for the purchase of the Purchased Assets, and subject to adjustment in accordance with
Section 2.2 below, shall be: (i) the assumption of Assumed Liabilities and (ii) a cash payment of
Twenty-One Million Dollars ($21,000,000.00) (the “Cash Payment”), plus (x) the amount, if any, by
which the Estimated Current Assets exceeds the Target Current Assets, minus (y) the amount, if any, by
which the Target Current Assets exceeds the Estimated Current Assets, plus a cash reimbursement
payment equal to $1,460,000.00 related to the UXL Tape Out.
2.2 Adjustment to Purchase Price.
(a) At least five (5) Business Days prior to the Closing Date, the Seller shall deliver
to Purchaser a current assets statement (the “Estimated Current Assets Statement”), setting forth the
Seller’s calculation of Closing Current Assets with respect to the Business as of the opening of business
on the Closing Date (“Estimated Current Assets”). Closing Current Assets will exclude any and all intercompany receivables, payables or other balances between the Seller or any Subsidiary, on the one hand,
and the Seller or any Subsidiary, on the other hand. The term “Current Assets” means the receivables,
Owned Inventory, Prepaid Inventory, and Prepaid License Fees. The term “Prepaid Inventory” shall
mean all inventory of the Business including any raw materials, work in process, finished goods,
consumables, service parts, packing materials and supplies paid prior to the Closing Date and not yet
received as inventory. The term “Prepaid License Fees” shall refer to fees for licenses set forth on
Schedule 2.2(a). The Estimated Current Assets Statement shall be prepared in accordance with the same
accounting principles, practices, methodologies and policies used to prepare the Carve-Out Financial
Statements and, to the extent consistent with the foregoing, in accordance with GAAP. Notwithstanding
the foregoing, (A) any assets of the Seller or a Subsidiary that are not part of the Purchased Assets shall
not under any circumstances be deemed a Current Asset.
(b) Within sixty (60) days after the Closing Date, Purchaser shall deliver to the Seller
a current assets statement (the “Current Assets Statement”), setting forth Purchaser’s calculation of
Closing Current Assets with respect to the Business as of the opening of business on the Closing Date.
The Current Assets Statement shall be prepared in accordance with the same accounting principles,
practices, methodologies and policies used to prepare the Carve-Out Financial Statements and, to the
extent consistent with the foregoing, in accordance with GAAP. The Seller shall cause its employees to
assist Purchaser and its representatives in the preparation of the Current Assets Statement and shall
provide Purchaser and its representatives reasonable access, during normal business hours and upon
reasonable prior notice, to the personnel, properties, books and records of the Seller and its Seller
Subsidiaries for such purpose.
(c) If Final Current Assets (as defined in Section 2.3 below) exceeds Estimated
Current Assets, then Purchaser shall pay to the Seller an amount equal to the difference between Final
Current Assets and Estimated Current Assets. If Estimated Current Assets exceeds Final Current Assets,
then the Seller shall pay to Purchaser an amount equal to the difference between Estimated Current Assets
and Final Current Assets. Any payment required to be made pursuant to this Section 2.2(c) shall be made
within five (5) Business Days after the Seller’s acceptance of the Current Assets Statement or, if
applicable, within five (5) Business Days after receipt of a determination and resolution of any dispute
over the Current Assets Statement as provided in Section 2.3 below. Any such amount payable by
Purchaser pursuant to this Section 2.2(c) shall be paid by wire transfer of immediately available funds (in 10
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U.S. Dollars) to an account or accounts designated in writing by the Party entitled to receive such
payment (or by such other means as are mutually agreeable to the Parties).
2.3 Disputes Concerning Adjustment.
(a) If the Seller does not deliver a Dispute Notice to Purchaser within ten (10)
Business Days of receiving the Current Assets Statement, the Seller shall be deemed to have agreed with
the Current Assets Statement presented by Purchaser and the Closing Current Assets set forth on the
Current Assets Statement shall be deemed the “Final Current Assets” for purposes of this Agreement.
“Final Current Assets” shall have the meaning assigned to such term in Section 2.3(b) below.
(b) If the Seller delivers a Dispute Notice to Purchaser within ten (10) Business Days
of receiving the Current Assets Statement, then the Seller and Purchaser shall negotiate in good faith to
resolve the dispute. If, after twenty (20) days from the date a Dispute Notice is given hereunder, the
Seller and Purchaser cannot agree on the resolution of the dispute, then the Arbitrating Accountant shall
be jointly engaged to arbitrate the dispute. Within twenty (20) days after the Arbitrating Accountant
accepts the engagement, as evidenced by an engagement letter signed by the Arbitrating Accountant and
the Parties (the date of such acceptance being referred to herein as the “Engagement Date”), Purchaser,
on the one hand, and the Seller, on the other hand, shall prepare and submit to the Arbitrating Accountant
a written brief stating their respective positions on the disputed issue(s). Such briefs shall be submitted
simultaneously by the Parties. Within ten (10) days thereafter, Purchaser, on the one hand, and the Seller,
on the other hand, shall prepare and submit to the Arbitrating Accountant a reply brief to the brief
submitted by the other Party or Parties, as applicable. Such reply briefs shall be submitted
simultaneously. Within forty (40) days after the Engagement Date, the Arbitrating Accountant shall
determine whether disputed issues of material fact exist between the Parties and, if such determination is
made, shall require that an evidentiary hearing be held and completed not later than the fifty-fifth (55
th
)
day after the Engagement Date. The Arbitrating Accountant shall render its final decision and award
regarding the disputed matters not later than the fifth (5
th
) day after the evidentiary hearing is held or, if
no evidentiary hearing is to be held, not later than the fifty-fifth (55
th
) day after the Engagement Date.
When acting pursuant to this Section 2.3(b), the Arbitrating Accountant shall determine whether and to
what extent, if any, Purchaser’s calculation of the Closing Current Assets (determined based on the
Current Assets Statement) requires adjustment. The Arbitrating Accountant shall address only those
issues in dispute, and may not assign a value to any item greater than the greatest value for such item
claimed by a Party or less than the smallest value for such item claimed by a Party. In addition, the
Arbitrating Accountant shall apportion its fees and expenses between the Seller, on the one hand, and
Purchaser, on the other hand, in proportion to the difference between the relative position of each Party
and the Arbitrating Accountant’s ultimate determination with respect to the amount of the Closing
Current Assets. The decision and award of the Arbitrating Accountant, including the apportionment of its
fees, shall be final and binding on the Parties and shall be subject to confirmation and entry of judgment
in accordance with applicable Law. In no event shall the Arbitrating Accountant award either Party
consequential, incidental or punitive damages. Purchaser and the Seller shall make all books, records and
work papers reasonably requested by the Arbitrating Accountant in connection with the resolution of the
item(s) disputed hereunder available to the Arbitrating Accountant. The Closing Current Assets as
determined pursuant to the terms of this Section 2.3(b) shall be deemed the “Final Current Assets” for
purposes of this Agreement.
2.4 Deposit. Purchaser shall make an earnest money deposit (the “Deposit”) in the amount of
10% of the Base Price to Pachulski Stang Ziehl & Jones LLP, counsel to Sellers, within three (3)
Business Days of the Agreement Date. The Deposit shall be applied against payment of the Purchase
Price on the Closing Date. If this Agreement shall be terminated pursuant to Sections 3.4(a), (b), (c), (d),
(e), (h), (i), (j), (l), (m), or (n) hereof, or in the event that a party other than Purchaser or an Affiliate of 11
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Purchaser purchases all or a significant portion of the Purchased Assets, then Sellers shall return the
Deposit to Purchaser within five (5) Business Days after Sellers’ receipt of Purchaser’s written request
therefore. If this Agreement shall be terminated by Sellers pursuant to Sections 3.4(k) or (o) hereof, then
Sellers shall retain the Deposit. The Parties agree that Sellers right to retain the Deposit, as set forth
herein, is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the
Sellers for their respective efforts and resources expended and the opportunities foregone while
negotiating this Agreement and in reliance on this Agreement and on the expectation of the
consummation of the transactions contemplated hereby, which amount would otherwise be impossible to
calculate with precision.
ARTICLE III
CLOSING AND TERMINATION
3.1 Closing. Subject to the satisfaction or waiver by the appropriate party of the conditions
set forth in Article IX, the closing of the purchase and sale of the Purchased Assets, the delivery of the
Purchase Price, the assumption of the Assumed Liabilities and the consummation of the other transactions
contemplated by this Agreement (the “Closing”) shall occur as soon as practicable following the
satisfaction or waiver of all conditions set forth in this Agreement (other than those conditions that by
their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions).
The Closing shall take place at the offices of DLA Piper LLP (US), 2000 University Avenue, East Palo
Alto, California 94303 or at such other place as the Parties may agree. Unless otherwise agreed by the
Parties in writing, the Closing shall be deemed effective and all right, title and interest of each of the
Sellers in the Purchased Assets to be acquired by the Purchaser hereunder shall be deemed to have passed
to the Purchaser and the assumption of all of the Assumed Liabilities shall be deemed to have occurred as
of 12:01 a.m. Eastern Time on the Closing Date.
3.2 Closing Deliveries by Sellers. At or prior to the Closing, the Sellers shall deliver to the
Purchaser:
(a) bills of sale substantially in the form of Exhibit A (the “Bill of Sale”) duly
executed by each of the Sellers;
(b) assignment and assumption agreement substantially in the form of Exhibit B (the
“Assignment and Assumption Agreement”) duly executed by each of the Sellers;
(c) a copy of the Sale Order that has been entered by the Bankruptcy Court and is a
Final Order;
(d) copies of all instruments, certificates, documents and other filings (if applicable)
necessary to release the Purchased Assets from all Encumbrances, including any applicable UCC
termination statements, all in a form reasonably satisfactory to the Purchaser;
(e) reasonable evidence of (i) each of the consents to assignment of the Assigned
Contracts set forth in Schedule 3.2(e)(i), (ii) at least 70% of the consents to assignments of the Assigned
Contracts set forth in Schedule 3.2(e)(ii) (each of (i) and (ii), a “Required Consent”) and each Required
Consent shall be in full force and effect. Purchaser shall not withhold entering into any such Required
Consent (other than with respect to any of the Assigned Contracts set forth on Schedule 3.2(e)(i)) if the
commercial terms offered by the applicable Third Party for such Required Consent are reasonable without
material change to the terms of such Assigned Contract in place as of the date of this Agreement. 12
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(f) satisfactory evidence of payment of the Cure Costs;
(g) an officer’s certificate, dated as of the Closing Date, executed by a duly
authorized officer of each of the Sellers certifying that the conditions set forth in Section 9.3 have been
satisfied;
(h) a copy of the resolutions adopted by the applicable Boards of Directors of the
Sellers evidencing their authorization of the execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby, certified by an authorized officer at the respective
Sellers;
(i) instrument of assumption and assignment of the Assumed Leases substantially in
the form of Exhibit C (the “Assumption and Assignment of Leases”), duly executed by each of the
Sellers, in form for recordation with the appropriate public land records, if necessary;
(j) an Intellectual Property Assignment and Assumption Agreement substantially in
the form of Exhibit D (the “IP Assignment and Assumption Agreement”), executed accordingly by the
Sellers;
(k) a License Agreement substantially in the form of Exhibit E (the “License
Agreement”), executed by the Sellers;
(l) a non-competition agreement in the form of Exhibit F (the “Non-Competition
Agreement”), pursuant to which the Seller agrees to certain restrictive covenants, executed by the Seller;
(m) a Transition Services Agreement substantially in the form of Exhibit G (the
“Trident Transition Services Agreement”), executed by Sellers;
(n) a Reverse Transition Services Agreement substantially in the form of Exhibit H
(the “Reverse Transition Services Agreement”), executed by Sellers;
(o) updated unaudited Carve-Out Financial Statements that include balance sheets as
of December 31, 2010, December 31, 2011, and as of the last day of the month prior to the calendar
month during which the Closing Date occurs (provided that if the Closing Date is less than 25 days after
the preceding calendar month, then through the last day of the second preceding month prior to the
calendar month during which the Closing Date occurs) and a statement of operations for the period from
January 1, 2010 through December 31, 2010, from January 1, 2011 through December 31, 2011, and from
January 1, 2012 through the last day of the month prior to the calendar month during which the Closin