Exhibit 10.1
MASTER SEPARATION AND DISTRIBUTION
AGREEMENT
between
VISHAY INTERTECHNOLOGY,
INC.
and
VISHAY PRECISION GROUP,
INC.
TABLE OF CONTENTS
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Page
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ARTICLE I
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DEFINITIONS
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2
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ARTICLE II
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BUSINESS SEPARATION
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14
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Section 2.1
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Separation
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14
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Section 2.2
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[Intentionally omitted]
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14
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Section 2.3
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Transfer of Separated Assets; Assumption of Assumed
Liabilities
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15
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Section 2.4
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Separated Assets
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15
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Section 2.5
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Liabilities
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17
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Section 2.6
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Excluded Assumed Liabilities
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18
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Section 2.7
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Deferred Separation Transactions
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19
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Section 2.8
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Consents and Governmental
Approvals
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19
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Section 2.9
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Novation of the Assumed Liabilities
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20
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Section 2.10
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Documents Relating to Transfers of the
Separated Assets and
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Assumption of the Assumed
Liabilities
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21
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Section 2.11
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Termination of Agreements
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22
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Section 2.12
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Release of Security Interest
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22
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Section 2.13
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No Representation or Warranty
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22
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Section 2.14
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Use of Cash
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23
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Section 2.15
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Plan of Reorganization
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23
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Section 2.16
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Assets Transferred to Vishay
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23
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Section 2.17
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Net Cash
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23
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ARTICLE III
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THE DISTRIBUTION AND ACTIONS PENDING THE
DISTRIBUTION
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24
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Section 3.1
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Transactions Prior to the Distribution
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24
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Section 3.2
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Conditions Precedent to Consummation of
the Distribution
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25
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Section 3.3
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Documents to be Delivered by Vishay
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27
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Section 3.4
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Documents to be Delivered by
VPG
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27
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Section 3.5
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Distribution
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28
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ARTICLE IV
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ADDITIONAL COVENANTS, FURTHER ASSURANCES
AND
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OTHER MATTERS
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30
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Section 4.1
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Provision of Corporate Records
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30
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Section 4.2
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Further Assurance
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30
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Section 4.3
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Agreement For Exchange Of Information
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31
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Section 4.4
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Production of Witnesses; Records;
Cooperation
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33
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Section 4.5
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Confidentiality
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33
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Section 4.6
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Privileged Matters
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34
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Section 4.7
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Cooperation with Respect to Know-how
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36
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Section 4.8
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VPG Exchangeable Notes and VPG
Warrants
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36
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Section 4.9
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Tax Matters
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37
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Section 4.10
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Employee Matters
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37
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Section 4.11
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Intellectual Property
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37
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- i -
Section 4.12
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Services Support
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37
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Section 4.13
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Real Property
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37
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ARTICLE V
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SURVIVAL AND INDEMNIFICATION
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38
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Section 5.1
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Mutual Release
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38
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Section 5.2
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Indemnification by Vishay
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39
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Section 5.3
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Indemnification by VPG
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40
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Section 5.4
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Tax Indemnification
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40
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Section 5.5
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Indemnification Obligations Net of Insurance Proceeds and Other
Amounts
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41
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Section 5.6
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Procedures for Indemnification of Third
Party Claims
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41
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Section 5.7
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Procedures for Indemnification of Direct Claims
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43
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Section 5.8
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Payments
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43
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Section 5.9
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Contribution
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44
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Section 5.10
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Remedies Cumulative
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44
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Section 5.11
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Survival of Indemnities
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44
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ARTICLE VI
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CONTINGENT GAINS AND CONTINGENT
LIABILITIES
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44
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Section 6.1
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Contingent Gains
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44
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Section 6.2
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Exclusive Contingent
Liabilities
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45
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Section 6.3
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Shared Contingent Liabilities
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45
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Section 6.4
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Payments
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46
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Section 6.5
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Procedures to Determine Status of Contingent Liability or
Contingent Gain
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46
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Section 6.6
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Certain Case Allocation
Matters
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47
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ARTICLE VII
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INSURANCE
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47
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Section 7.1
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Insurance Matters Generally
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47
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Section 7.2
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Shared Insurance Policies
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47
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Section 7.3
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Insurance for VPG Officers & Directors
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49
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Section 7.4
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Director and Officer
Indemnification
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49
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Section 7.5
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VPG Insurance
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49
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ARTICLE VIII
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DISPUTE RESOLUTION
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49
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Section 8.1
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Agreement to Resolve Disputes
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49
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Section 8.2
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Dispute Resolution; Mediation
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50
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Section 8.3
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Arbitration
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51
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Section 8.4
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Continuity of Service and
Performance
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51
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Section 8.5
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Limitation of Liability
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52
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ARTICLE IX
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Termination
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52
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ARTICLE X
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MISCELLANEOUS
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52
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Section 10.1
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Counterparts
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52
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Section 10.2
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Entire Agreement
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52
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Section 10.3
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Construction
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53
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Section 10.4
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Assignability
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54
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- ii -
Section 10.5
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Third Party Beneficiaries
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54
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Section 10.6
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Governing Law
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54
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Section 10.7
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Notices
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54
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Section 10.8
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Severability
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55
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Section 10.9
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Nonrecurring Costs and
Expenses
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55
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Section 10.10
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Press Releases; Public Announcements
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56
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Section 10.11
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Survival of Covenants
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56
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Section 10.12
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Waiver of Default
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56
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Section 10.13
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Amendments
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56
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Section 10.14
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Specific Performance
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57
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Section 10.15
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Consent to Jurisdiction
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57
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Section 10.16
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Waiver of jury trial
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57
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Annex A
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VPG Group Balance Sheet
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SCHEDULES
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Schedule 1.1
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Capital Allocation Transactions
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Schedule 1.2
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Exclusive VPG Contingent
Liabilities
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Schedule 1.3
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Separation Transactions
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Schedule 1.4
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Shared Contingent
Liabilities
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Schedule 2.4(a)(iii)
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Subsidiaries of VPG
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Schedule 2.4(b)(i)
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Excluded Assets
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Schedule 2.5(b)(ii)
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Excluded Assumed Liabilities
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Schedule 2.5(b)(v)
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Excluded Assumed Environmental
Liabilities
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Schedule 2.16
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Assets Being Transferred to Members of Vishay Group
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Schedule 3.3(b)
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Director and Officer Resignations by
Members of Vishay Group
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Schedule 3.4(b)
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Director and Officer Resignations by Members of VPG
Group
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EXHIBITS
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Exhibit A
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Employee Matters Agreement
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Exhibit B
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IP License Agreement
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Exhibit C
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Lease Agreements
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Exhibit D
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Patent License Agreement
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Exhibit E
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RCK IP License Agreement
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Exhibit F
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RCK Manufacturing Agreement
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Exhibit G
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RCK Supply Agreement
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Exhibit H
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Secondment Agreement
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Exhibit I
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Supply Agreement
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Exhibit J
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Tax Matters Agreement
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Exhibit K
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Trademark License Agreement
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Exhibit L
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Transition Services
Agreement
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- iii -
MASTER SEPARATION AND DISTRIBUTION
AGREEMENT
This Master Separation and Distribution Agreement (this “
Agreement
”) is entered into as of June 22, 2010, by and
between Vishay Intertechnology, Inc., a corporation organized under the laws of
the State of Delaware (“
Vishay
”), and Vishay Precision Group, Inc., a
corporation organized under the laws of the State of Delaware (“
VPG
”).
RECITALS
WHEREAS, the Board of Directors of Vishay (the “
Vishay Board
”) has determined it is appropriate and
desirable to separate Vishay and VPG into two publicly-traded companies by
separating from Vishay and transferring to VPG Vishay’s MGF Business (as defined
below), and related assets and liabilities, in a series of transactions on the
terms and conditions set forth herein.
WHEREAS, the Vishay Board has determined that it would be advisable and
in the best interests of Vishay and its stockholders for Vishay to distribute,
on a pro rata basis, (i) to the holders as of the Record Date (as defined below)
of the issued and outstanding shares of Vishay’s common stock, par value $0.10
per share (the “
Vishay common stock
”), all of the issued and outstanding shares
of VPG’s common stock, par value $0.10 per share (the “
VPG
common stock
”), owned by Vishay as of the Distribution
Date (as defined below) and (ii) to the holders as of the Record Date of the
issued and outstanding shares of Vishay’s Class B common stock, par value $0.10
per share (the “
Vishay Class B common stock
”, together with the Vishay common stock, the
“
Vishay Stock
”), all of the issued and outstanding shares
of VPG’s Class B common stock, par value $0.10 per share (the “
VPG Class B common stock
”, together with VPG common stock, the
“
VPG Stock
”), owned by Vishay as of the Distribution
Date, in each case, as further described herein (collectively, the “
Distribution
”);
WHEREAS, Vishay and VPG intend that the Separation (as defined below) and
the Distribution will qualify for United States federal income tax purposes as
transactions that are generally tax free under, among other provisions, Sections
355 and 368(a)(1)(D) of the Internal Revenue Code of 1986, as amended (the
“
Code
”) and hereby adopt this Agreement as a
“
plan of
reorganization
”; and
WHEREAS, the parties intend in this Agreement to set forth the principal
arrangements between them regarding the Separation and the Distribution and
certain other agreements that will govern the relationship of Vishay and VPG
following the Distribution.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
agreements, representations and warranties contained herein, and for other good
and valuable consideration the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree, intending to be legally bound, as
follows:
ARTICLE I
DEFINITIONS
Capitalized terms used but not defined herein shall have the meanings set
forth in this
Article I
.
“
AAA
” has the meaning set forth in
Section 8.3(a)
of this Agreement.
“
Action
” means any claim, demand, action, suit,
counter suit, arbitration, inquiry, proceeding or investigation by or before any
Governmental Authority and shall include any negotiations in settlement of or in
lieu of an Action.
“
Actual VPG Net Cash
” has the meaning set forth in
Section 2.17(a)
of this
Agreement.
“
Affiliate
” means, as applied to any Person, any other
Person that, directly or indirectly, controls, is controlled by, or is under
common control with that Person as of the date on which or at any time during
the period for when such determination is being made. For purposes of this
definition, “
control
” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or
other interests, by contract or otherwise, and the terms “
controlling
” and “
controlled
” have meanings correlative to the
foregoing.
“
Agent
” means the distribution agent to be appointed
by Vishay to distribute to the stockholders of Vishay pursuant to the
Distribution all of the shares of VPG Stock.
“
Agreement
” has the meaning set forth in the preamble of
this Agreement.
“
Ancillary Agreements
” means the (i) Tax Matters Agreement, (ii)
Transition Services Agreement, (iii) Employee Matters Agreement, (iv) License
Agreements, (v) Lease Agreements, (vi) RCK Agreements, (vii) Supply Agreements,
and (viii) Secondment Agreement, and, in the singular, means any one of
them.
“
Applicable Law
” means any applicable law, statute, rule or
regulation of any
Governmental
Authority, or any outstanding order, judgment, injunction, ruling or decree by
any Governmental Authority.
“
Assets
” means assets, properties and rights
(including goodwill), wherever located (including in the possession of vendors
or other third parties or elsewhere), whether real, personal or mixed, tangible,
intangible or contingent, in each case whether or not recorded or reflected or
required to be recorded or reflected on the books and records or financial
statements of any Person, including the following:
(i) all accounting and other books, records and files whether in paper,
microfilm, microfiche, computer tape or disc, magnetic tape or any other
form;
- 2 -
(ii) all computers and other electronic data processing equipment,
fixtures, machinery, equipment, furniture, office equipment, motor vehicles and
other transportation equipment, special and general tools, prototypes and models
and other tangible personal property, wherever located that are owned or leased
by the Person, together with any express or implied warranty by the
manufacturers, sellers or lessors of any item or component part
thereof;
(iii) all inventories, wherever located, including all finished goods,
(whether or not held at a location or facility or in transit), work in process,
raw materials, spare parts and all other materials and supplies to be used or
consumed in the production of finished goods;
(iv) all interests in real property of whatever nature, including any
Encumbrances thereto, whether as owner, mortgagee or holder of a Security
Interest in real property, lessor, sublessor, lessee, sublessee or
otherwise;
(v) all interests in any capital stock or other equity interests of any
Subsidiary or any other Person; all bonds, notes, debentures or other securities
issued by any Subsidiary or any other Person; all loans, advances or other
extensions of credit or capital contributions to any Subsidiary or any other
Person; and all other investments in securities of any Person;
(vi) all license agreements, leases of personal property, open purchase
orders for raw materials, supplies, parts or services, unfilled orders for the
manufacture and sale of products and other contracts, agreements or
commitments;
(vii) all deposits and prepaid expenses, letters of credit and
performance and surety bonds, claims for refunds and rights of set-off in
respect thereof;
(viii) all written technical Information, data, specifications, research
and development Information, engineering drawings, operating and maintenance
manuals, and materials and analyses whether prepared by Affiliates, by
consultants or other third parties;
(ix) all Intellectual Property and licenses from third Persons granting
the right to use any Intellectual Property;
(x) all computer applications, programs and other software (whether in
source code, object code or other form), including operating software, network
software, firmware, middleware, design software, design tools, compilations and
data, technology supporting the foregoing, systems documentation, and user and
training materials and instructions related to any of the foregoing;
(xi) all cost Information, sales and pricing data, customer prospect
lists, supplier records, customer and supplier lists, customer and vendor data,
correspondence and lists, product literature, artwork, design, development and
manufacturing files, vendor and customer drawings, formulations and
specifications, quality records and reports and other books, records, studies,
surveys, reports, plans and documents;
(xii) all trade accounts and notes receivable and other rights to payment
from customers and all security for such accounts or rights to payment,
including all trade accounts receivable representing amounts receivable in
respect of goods shipped or products sold or otherwise disposed of or services
rendered to customers, (b) all other accounts and notes receivable and all
security for such accounts or notes, and (c) any claim, remedy or other right
relating to any of the foregoing;
- 3 -
(xiii) all rights under Contracts, all claims or rights against any
Person arising from the ownership of any Asset, all rights in connection with
any bids or offers and all claims, choses in action or similar rights, whether
accrued or contingent;
(xiv) all rights under insurance policies and all rights in the nature of
insurance, indemnification or contribution, including Insurance
Proceeds;
(xv) all licenses, permits, approvals and authorizations which have been
issued by any Governmental Authority; and
(xvi) cash or cash equivalents, bank accounts, lock boxes and other
deposit arrangements.
“
Assumed Liabilities
” has the meaning set forth in
Section 2.5(a)
of this Agreement.
“
Auditor
” has the meaning set forth in
Section 2.17(b)
of this Agreement.
“
Business
” means the Vishay Business or the MGF
Business, as the context requires.
“
Business Day
” means any day other than a Saturday, Sunday
or a day on which commercial banks are authorized or required to close in New
York, New York or in Philadelphia, Pennsylvania.
“
Capital Allocation
Transactions
” means the
repayment of outstanding indebtedness owed by one or more members of the VPG
Group to one or more members of the Vishay Group or by one or more members of
the Vishay Group to one or more members of the VPG Group or any dividend or
other distributions by one or more members of the VPG Group to one or more
members of the Vishay Group or a capital contribution by one or more members of
the Vishay Group to one or more members of the VPG Group, as described in
Schedule 1.1
, and in the singular means any one such
transaction. The Capital Allocation Transactions are intended to proceed in
accordance with and pursuant to the steps set forth in the request for a private
letter ruling submitted by Vishay to the IRS on December 23, 2009, as amended
from time to time.
“
Class B Common Stock Distribution
Ratio
” has the meaning set
forth in
Section
3.5(c)(iii)
of this Agreement.
“
Code
” has the meaning set forth in the recitals to
this Agreement.
“
Commission
” means the Securities and Exchange
Commission.
“
Common Stock Distribution
Ratio
” has the meaning set
forth in
Section 3.5(c)(iii)
of this Agreement.
- 4 -
“
Confidential Information
” means all proprietary, design or operational
Information, data or material including, without limitation: (a) specifications,
ideas and concepts for goods and services; (b) manufacturing specifications and
procedures; (c) design drawings and models; (d) materials and material
specifications; (e) quality assurance policies, procedures and specifications;
(f) customer, client, manufacturer and supplier Information; (g) computer
software and derivatives thereof relating to design development or manufacture
of goods; (h) training materials and Information; (i) inventions, devices, new
developments, methods and processes, whether patentable or unpatentable and
whether or not reduced to practice; (j) all other know-how, methodology,
procedures, techniques and Trade Secrets; (k) proprietary earnings reports and
forecasts; (l) proprietary macro-economic reports and forecasts; (m) proprietary
marketing, advertising and business plans, objectives and strategies; (n)
proprietary general market evaluations and surveys; (o) proprietary financing
and credit-related Information; (p) other copyrightable or patented works; and
(q) all similar and related Information in whatever form; in each case, of one
party which, prior to or following the Distribution Date, has been disclosed by
Vishay or members of its Group on the one hand, or VPG or members of its Group,
on the other hand, in written, oral (including by recording), electronic, or
visual form to, or otherwise has come into the possession of, the other Group,
including pursuant to the access provisions of
Section 4.3
hereof or any other provision of this
Agreement.
“
Consents
” means any consents, waivers or approvals, or
notification requirements.
“
Contingent Claim Committee
” means a committee composed of one
representative designated from time to time by each of Vishay and VPG that shall
be established in accordance with
Section 6.5
.
“
Contingent Gain
” means any claim or right of any member of
the Vishay Group or the VPG Group, whenever arising, against any Person, other
than a Person released or intended to be released from a claim or other right
under
Article V
;
provided
, that (i) such claim or right
has accrued as of the Distribution Date, and (ii) the existence or scope of the
claim or right against such other Person was not acknowledged, fixed or
determined in any material respect as of the Distribution Date as a result of a
dispute or as a result of any other uncertainty due to the failure of such claim
or right to have been discovered or asserted as of the Distribution Date. For
purposes of the foregoing, a claim or right shall be deemed to have accrued as
of the Distribution Date if all the elements of the claim necessary for its
assertion shall have occurred on or prior to the Distribution Date such that the
claim or right, were it to have been asserted in an Action on or prior to the
Distribution Date, would not be dismissed by a court on ripeness or similar
grounds, regardless of whether there was any Action pending, threatened or
contemplated as of the Distribution Date with respect thereto.
“
Contingent Liability
” means any Liability of a member of the
Vishay Group or the VPG Group, whenever arising, against any Person unless that
Person has been released or the Liability to that Person is intended to be
released under
Article V
;
provided
, that (i) such Liability has accrued as of
the Distribution Date and (ii) the existence or scope of such Liability was not
acknowledged, fixed or determined in any material respect as of the Distribution
Date as a result of a dispute or as a result of any other uncertainty due to the
failure of such Liability to have been discovered or asserted as of the
Distribution Date. For purposes of the foregoing, a Liability shall be deemed to
have accrued as of the Distribution Date if all the elements necessary for the
assertion of a claim with respect to such Liability shall have occurred on or
prior to the Distribution Date such that the claim, were it to have been
asserted in an Action on or prior to the Distribution Date, would not be
dismissed by a court on ripeness or similar grounds.
- 5 -
“
Contract
” means any contract, agreement, lease,
purchase and/or commitment, license, consensual obligation, promise or
undertaking (whether written or oral and whether express or implied) that is
legally binding on any Person or any part of its property under Applicable Law,
including all claims or rights against any Person, choses in action and similar
rights, whether accrued or contingent with respect to any such contract,
agreement, lease, purchase and/or commitment, license, consensual obligation,
promise or undertaking, but excluding this Agreement and any Ancillary
Agreement, save as otherwise expressly provided in this Agreement or in any
Ancillary Agreement.
“
Determination Date
” has the meaning set forth in
Section 2.17(b)
of this Agreement.
“
Determination Request
” has the meaning set forth in
Section 6.5(b)
of this Agreement.
“
Distribution
” has the meaning set forth in the recitals to
this Agreement.
“
Distribution Date
” means the date determined by the Vishay
Board as the date on which the Distribution shall be effected.
“
Dispute
” has the meaning set forth in
Section 8.2(a)
of this Agreement.
“
Dispute Notice
” has the meaning set forth in
Section 8.2(a)
of this Agreement.
“
Effective Time
” has the meaning set forth in
Section 3.5(b)
of this Agreement.
“
Employee Matters Agreement
” means the Employee Matters Agreement
substantially in the form attached hereto as
Exhibit A
. From and after the Distribution Date, the
Employee Matters Agreement shall refer to the agreement executed and delivered
substantially in the form attached hereto as
Exhibit A
, as amended and/or modified from time to time
in accordance with its terms.
“
Encumbrance
” means, with respect to any Asset, mortgages,
liens, hypothecations, pledges, security interests, easements, encroachments,
rights to acquire, use restrictions, transfer restrictions or other encumbrances
of any kind in respect of such Asset, whether or not filed, recorded or
otherwise perfected under Applicable Law.
“
Environmental Law
” means any federal, state, local, or foreign
law, regulation, order, judgment, decree, permit, authorization, common law or
agency requirement whether now existing or hereafter enacted or promulgated
relating to: (A) the protection, investigation, or restoration of the
environment, health, safety or natural resources; (B) the handling, use,
presence, disposal, release or threatened release of any Hazardous Substance; or
(C) noise, odor, indoor air, employee exposure, wetlands, pollution,
contamination or any injury or threat of injury to persons or property relating
to any Hazardous Substance; including but not limited to the Comprehensive
Environmental, Compensation and Liability Act of 1980 as amended, the Resource
Conservation and Recovery Act, the Clean Air Act as amended, the Toxic
Substances Control Act as amended, the Occupational Safety and Health Act of
1970 and comparable local, state and foreign statutes. As used herein,
“Hazardous Substance” means any substance that is: (A) listed, classified or
regulated pursuant to any Environmental Law; (B) any petroleum product or
by-product, asbestos-containing material, lead-containing paint or plumbing,
polychlorinated biphenyl, radioactive material or radon; and (C) any other
substance which is subject to regulatory Action by any Governmental Authority in
connection with any Environmental Law.
- 6 -
“
Environmental Liabilities
” means all Liabilities relating to, arising
out of or resulting from any Environmental Law or Contract relating to
environmental, health or safety matters (including all removal, remediation or
cleanup costs, investigatory costs, governmental response costs, natural
resources damages, property damages, personal injury damages, costs of
compliance with any product take back requirements or with any settlement,
judgment or other determination of Liability and indemnity, contribution or
similar obligations) and all costs and expenses, interest, fines, penalties or
other monetary sanctions in connection therewith.
“
Exchange Act
” means the Securities Exchange Act of 1934,
as amended, together with the rules and regulations promulgated
thereunder.
“
Excluded Assets
” has the meaning set forth in
Section 2.4(b)
of this Agreement.
“
Excluded Assumed
Liabilities
” has the
meaning set forth in
Section 2.5(b)
of this Agreement.
“
Exclusive Vishay Contingent
Gain
” means any Contingent
Gain other than an Exclusive VPG Contingent Gain or a Shared Contingent Gain.
“
Exclusive Vishay Contingent
Liability
” means any
Contingent Liability other than an Exclusive VPG Contingent Liability or a
Shared Contingent Liability.
“
Exclusive VPG Contingent
Gain
” means any Contingent
Gain if such Contingent Gain relates exclusively to the MGF Business or if such
Contingent Gain is expressly assigned to any member of the VPG Group pursuant to
this Agreement or any Ancillary Agreement. As of the date of this Agreement, the
parties are not aware of the existence of any Exclusive VPG Contingent Gains.
“
Exclusive VPG Contingent
Liability
” means any
Contingent Liability if such Contingent Liability relates exclusively to the MGF
Business, including the matters listed or described on
Schedule 1.2
hereto, or if such Contingent Liability is
expressly assigned to any member of the VPG Group pursuant to this Agreement or
any Ancillary Agreement. For the sake of clarity, the Contingent Liabilities
described on Schedule 1.4 shall be allocated as set forth on that
schedule.
“
final determination
” has the meaning set forth in
Section 5.8
of this Agreement.
“
Form 10 Registration
Statement
” means the
registration statement on Form 10 (including any and all exhibits filed thereto)
to be filed under the Exchange Act, pursuant to which the shares of VPG Stock to
be issued in VPG Distribution will be registered, together with all amendments
thereto.
- 7 -
“
GAAP
” has the meaning set forth in
Section 2.4(a)(v)
of this Agreement.
“
Governmental Approvals
” means any notices, reports or other filings
to be made, or any Consents, registrations, approvals, permits or authorizations
to be obtained from, any Governmental Authority.
“
Governmental Authority
” means any U.S. or non-U.S. federal, state,
local, foreign or international court, arbitration or mediation tribunal,
government, department, commission, board, bureau, agency, official or other
regulatory, administrative or governmental authority.
“
Group
” means the Vishay Group or the VPG Group, as
the context requires.
“
Indemnified Party
” has the meaning set forth in
Section 5.5(a)
of this Agreement.
“
Indemnifying Party
” has the meaning set forth in
Section 5.5(a)
of this Agreement.
“
Indemnity Payment
” has the meaning set forth in
Section 5.5(a)
of this Agreement.
“
Information
” means information, whether or not patentable
or copyrightable, in written, oral, electronic or other tangible or intangible
forms, stored in any medium, including studies, reports, records, books,
contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints, diagrams, models,
prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes,
computer programs or other software, marketing plans, customer names,
communications by or to attorneys (including attorney-client privileged
communications), memos and other materials prepared by attorneys or under their
direction (including attorney work product), and other technical, financial,
employee or business information or data, but in any case excluding back-up
tapes.
“
Information Statement
” means the information statement forming a
part of the Form 10 Registration Statement.
“
Insurance Policy
” means any insurance policies and insurance
Contracts, including without limitation general liability, property and
casualty, workers’ compensation, automobile, marine, directors & officers
liability, errors and omissions, employee dishonesty and fiduciary liability
policies and contracts, but excluding life and other benefits policies or
Contracts, whether in the nature of primary, excess, umbrella or self-insurance
overage, together with all rights, benefits and privileges thereunder.
“
Insurance Proceeds
” means those monies (in each case net of any
costs or expenses incurred in the collection thereof and net of any applicable
premium adjustments (including reserves and retrospectively rated premium
adjustments)): (a) received by an insured from an insurance carrier; or (b) paid
by an insurance carrier on behalf of the insured, net of any applicable premium
deductible or self insured retention.
- 8 -
“
Intellectual Property
” means all domestic and foreign patents and
patent applications, together with any continuations, continuations-in-part or
divisional applications thereof, and all patents issuing thereon (including
reissues, renewals and re-examinations of the foregoing); design patents;
invention disclosures; mask works; all domestic and foreign copyrights, whether
or not registered, together with all copyright applications and registrations
therefor; all domain names, together with any registrations therefor and any
goodwill relating thereto; all domestic and foreign trademarks, service marks,
trade names, and trade dress, in each case together with any applications and
registrations therefor and all goodwill relating thereto; all Trade Secrets,
commercial and technical Information, know-how, proprietary or Confidential
Information, including engineering, production and other designs, notebooks,
processes, drawings, specifications, formulae, and technology; computer and
electronic data processing programs and software (object and source code), data
bases and documentation thereof; all inventions (whether or not patented); all
utility models; all registered designs, certificates of invention and all other
intellectual property under the laws of any country throughout the world.
“
IP License Agreement
” means the IP License Agreement, between VPG,
as licensor, and Vishay or a Subsidiary of Vishay, as licensee, for the license
of certain Intellectual Property relating to the manufacture of strain gages,
substantially in the form of
Exhibit B
. From and after the Distribution Date, the IP
License Agreement shall refer to the agreement executed and delivered
substantially in the form attached hereto as
Exhibit B
, as amended and/or modified from time to time
in accordance with its terms.
“
IRS
” means the Internal Revenue
Service.
“
Lease Agreements
” means the real property lease agreements
between one or more members of the Vishay Group, on the one hand, and one or
more members of the VPG Group on the other hand, listed on
Exhibit C
, substantially in the forms attached to such
Exhibit. From and after the Distribution Date, the Lease Agreements shall refer
to the real property lease agreements substantially in the form attached to
Exhibit C
, each as amended and/or modified from time to
time in accordance with its terms.
“
Liability
” means, with respect to any Person, any and
all losses, claims, charges, debts, demands, Actions, causes of action, suits,
damages, obligations, payments, costs and expenses, sums of money, accounts,
reckonings, bonds, specialties, indemnities and similar obligations, exoneration
covenants, obligations under Contracts, guarantees, make whole agreements and
similar obligations, and other liabilities and requirements, including all
contractual obligations, whether absolute or contingent, matured or unmatured,
liquidated or unliquidated, accrued or unaccrued, known or unknown, joint or
several, whenever arising, and including those arising under any Applicable Law,
Action, threatened or contemplated Action (including the costs and expenses of
demands, assessments, judgments, settlements and compromises relating thereto
and attorneys’ fees and any and all costs and expenses, whatsoever reasonably
incurred in investigating, preparing or defending against any such Actions or
threatened or contemplated Actions) or order of any Governmental Authority or
any award of any arbitrator or mediator of any kind, and those arising under any
Contract, in each case, whether or not recorded or reflected or otherwise
disclosed or required to be recorded or reflected or otherwise disclosed, on the
books and records or financial statements of any Person, including any Liability
for Taxes.
“
License Agreements
” mean the Trademark License Agreement, the
Patent License Agreement, the IP License Agreement and the RCK IP License
Agreement.
- 9 -
“
MGF Business
” means the measurements and foil resistor
business owned and operated, indirectly or directly, by Vishay prior to the
Distribution, to be owned and operated, directly or indirectly, by VPG after the
Distribution.
“
NYSE
” has the meaning set forth in
Section 3.1(e)
of this Agreement.
“
Party
,” whether or not capitalized, means Vishay or
VPG.
“
Patent License Agreement
” means the Patent License Agreement, between
Vishay or a Subsidiary of Vishay, as licensor, and VPG, as licensee,
substantially in the form of
Exhibit D
. From and after the Distribution Date, the
Patent License Agreement shall refer to the agreement executed and delivered
substantially in the form attached hereto as
Exhibit D
, as amended and/or modified from time to time
in accordance with its terms.
“
Person
” (whether or not initially capitalized) means
any corporation, limited liability company, partnership, firm, joint venture,
entity, natural person, trust, estate, unincorporated organization, association,
enterprise, government or political subdivision thereof, or Governmental
Authority.
“
Privilege
” has the meaning set forth in
Section 4.6(a)
of this Agreement.
“
Privileged Information
” has the meaning set forth in
Section 4.6(a)
of this Agreement.
“
RCK Agreements
” means the RCK IP License Agreement, RCK
Manufacturing Agreement and the RCK Supply Agreement.
“
RCK IP License Agreement
” means the IP License Agreement, between VPG
or a Subsidiary of VPG, as licensor, and Vishay or a Subsidiary of Vishay, as
licensee, for the license of certain Intellectual Property relating to the
manufacture of RCK HR foil resistor products, substantially in the form of in
the form of
Exhibit E
. From and after the Distribution Date, the
RCK IP License Agreement shall refer to the agreement executed and delivered
substantially in the form attached hereto as
Exhibit E
, as amended and/or modified from time to time
in accordance with its terms.
“
RCK Manufacturing Agreement
” means the Manufacturing Agreement, between
VPG or a Subsidiary of VPG, as buyer, and Vishay or a Subsidiary of Vishay, as
manufacturer, relating to the manufacture of specified RCK HR foil resistor
products, substantially in the form of
Exhibit F
. From and after the Distribution Date, the
RCK Manufacturing Agreement shall refer to the agreement executed and delivered
substantially in the form attached hereto as
Exhibit
F
, as amended and/or modified from time to time
in accordance with its terms.
“
RCK Supply Agreement
” means the Supply Agreement, between VPG or a
Subsidiary of VPG, as supplier, and Vishay or a Subsidiary of Vishay, as buyer,
relating to the sale and manufacture of specified RCK foil resistor chips,
substantially in the form of
Exhibit G
. From and after the Distribution Date, the
RCK Supply Agreement shall refer to the agreement executed and delivered
substantially in the form attached hereto as
Exhibit G
, as amended and/or modified from time to time
in accordance with its terms.
- 10 -
“
Record Date
” means the close of business on the date to
be determined by Vishay’s Board in its sole and absolute discretion as the
record date for determining the stockholders of Vishay entitled to receive
shares of VPG Stock in the Distribution.
“
Record Holder
” mean a holder of record of Vishay Stock as
of the close of business on the Record Date.
“
Registrar and Transfer
Agent
” has the meaning set
forth in
Section 3.5(c)(i)
of this Agreement.
“
Response
” has the meaning set forth in
Section 8.2(a)
of this Agreement.
“
Secondment Agreement
” means the secondment agreement between one
or more members of the Vishay Group, as the seconding party, on the one hand,
and one or more members of the VPG Group on the other hand, listed on
Exhibit H
, substantially in the form attached to such
Exhibit. From and after the Distribution Date, the Secondment Agreement shall
refer to the secondment agreement substantially in the form attached to
Exhibit H
, as amended and/or modified from time to time
in accordance with its terms.
“
Senior Party Representative
” has the meaning set forth in
Section 8.2(a)
of this Agreement.
“
Separated Assets
” has the meaning set forth in
Section 2.4(a)
of this Agreement.
“
Separation
” means the multi-step process described in
Article II
, including the Separation Transactions and
the Capital Allocation Transactions, by which the MGF Business shall be
transferred, directly or indirectly, from Vishay and members of the Vishay Group
to VPG and members of the VPG Group.
“
Separation Transactions
” means the transfers of assets, shares and
other equity interests to be performed by Vishay, VPG and members of each
respective Group prior to the Distribution, in the manner referred to in
Schedule 1.3
hereto and, in the singular, means any one
such transaction. The Separation Transactions are intended to proceed in
accordance with and pursuant to the steps set forth in the request for a private
letter ruling submitted by Vishay to the IRS on December 23, 2009, as amended
from time to time.
“
Shared Contingent Gain
” means, without duplication, any Contingent
Gain that is not an Exclusive Vishay Contingent Gain or an Exclusive VPG
Contingent Gain and shared between the Groups.
“
Shared Contracts
” means Contracts with a third party providing
for rights and obligations of both one or more members of the Vishay Group and
one or more members of the VPG Group.
“
Shared Contingent Liability
” means, without duplication, any Contingent
Liability that is not an Exclusive Vishay Contingent Liability or an Exclusive
VPG Contingent Liability and shared between the Groups, which Shared Contingent
Liabilities shall be allocated as set forth in this Agreement and described on
Schedule 1.4
.
- 11 -
“
Shared VPG Percentage
” means the proportion of the Shared
Contingent Gain or the Shared Contingent Liability, as applicable, that relates
to the MGF Business,
provided that
, if such Shared Contingent Gain or Shared
Contingent Liability, as the case may be, cannot reasonably be allocated, then
the Shared VPG Percentage shall be 10%.
“
Shared Percentage
” means the Shared Vishay Percentage or the
Shared VPG Percentage, as the case may be.
“
Shared Vishay Percentage
” means the proportion of the Shared
Contingent Gain or the Shared Contingent Liability, as applicable, that relates
to the Vishay Business;
provided
that if such Shared Contingent Gain or Shared
Contingent Liability, as the case may be, cannot reasonably be allocated, then
the Shared VPG Percentage shall be 90%.
“
Subsidiary
” of any Person means a corporation or other
organization whether incorporated or unincorporated of which at least a majority
of the securities or interests having by the terms thereof ordinary voting power
to elect at least a majority of the board of directors or others performing
similar functions with respect to such corporation or other organization is
directly or indirectly owned or controlled by such Person or by any one or more
of its Subsidiaries, or by such Person and one or more of its Subsidiaries;
provided
,
however
, that no Person that is not directly or
indirectly wholly-owned by any other Person shall be a Subsidiary of such other
Person unless such other Person controls, or has the right, power or ability to
control, that Person.
“
Supply Agreements
” means the Supply Agreements, between one or
more members of the Vishay Group, on the one hand, and one or more members of
the VPG Group, on the other hand, listed on
Exhibit I
, substantially in the form attached to such
Exhibit I
. From and after the Distribution Date, the
Supply Agreement shall refer to the supply agreement substantially in the form
attached to
Exhibit I
, as amended and/or modified from time to time
in accordance with its terms.
“
Taxes
” has the meaning set forth in the Tax Matters
Agreement.
“
Tax Matters Agreement
” means the Tax Matters Agreement
substantially in the form attached hereto as
Exhibit J
. From and after the Distribution Date, the
Tax Matters Agreement shall refer to the agreement executed and delivered
substantially in the form attached hereto as
Exhibit J
, as amended and/or modified from time to time
in accordance with its terms.
“
Third Party Claim
” has the meaning set forth in
Section 5.6(a)
of this Agreement.
“
Trade Secrets
” means Information, including a formula,
program, device, method, technique, process or other Confidential Information
that derives independent economic value, actual or potential, from not being
generally known to the public or to other Persons who can obtain economic value
from its disclosure or use and is the subject of efforts that are reasonable,
under the circumstances, to maintain its secrecy.
“
Trademark License Agreement
” means the Trademark License Agreement,
between Vishay, as licensor, and VPG, as licensee, substantially in the form of
Exhibit K
. From and
after the Distribution Date, the Trademark License Agreement shall refer
to the agreement executed and delivered substantially in the form attached
hereto as
Exhibit K
, as amended and/or modified from time to time
in accordance with its terms.
- 12 -
“
Transition Services
Agreement
” means the
transition services agreement between one or more members of the Vishay Group,
on the one hand, and one or more members of the VPG Group, on the other hand,
listed on
Exhibit L,
substantially in the forms attached to such
Exhibit. From and after the Distribution Date, the Transition Services Agreement
shall refer to the transition services agreement substantially in the form
attached as
Exhibit
L
, as amended and/or modified from time to time
in accordance with its terms.
“
Vishay
” has the meaning set forth in the preamble of
this Agreement.
“
Vishay Board
” has the meaning set forth in the recitals to
this Agreement.
“
Vishay Business
” means, collectively, any and all businesses
other than the MGF Business owned and operated, directly or indirectly, by
Vishay (including without limitation the strain gage business operated by Vishay
S.A.).
“
Vishay Class B common stock
” has the meaning set forth in the recitals to
this Agreement.
“
Vishay common stock
” has the meaning set forth in the recitals to
this Agreement.
“
Vishay Group
” means Vishay and each Subsidiary of Vishay
and each other Person that is controlled directly or indirectly by Vishay
immediately after the Distribution.
“
Vishay Indemnified Parties
” has the meaning set forth in
Section 5.3
of this Agreement.
“
Vishay Stock
” has the meaning set forth in the recitals to
this Agreement.
“
VPG
” has the meaning set forth in the preamble of
this Agreement.
“
VPG Class B common stock
” has the meaning set forth in the recitals to
this Agreement.
“
VPG common stock
” has the meaning set forth in the recitals to
this Agreement.
“
VPG Contracts
” means the following Contracts to which
Vishay or any member of the Vishay Group is a party or by which it or any of its
Assets is bound, whether or not in writing, except for any such Contract that is
explicitly retained by Vishay or any member of the Vishay Group pursuant to any
provision of this Agreement or any Ancillary Agreement: (i) any Contract entered
into in the name of, or expressly on behalf of, the MGF Business; (ii) any
Contract that relates exclusively to the MGF Business; (iii) the portion of any
Shared Contract to the extent attributable to VPG or the MGF Business; (iv) any
Contract that is otherwise expressly contemplated pursuant to this Agreement or
any of the Ancillary Agreements to be assigned to VPG or any member of the VPG
Group; (v) any guarantee, indemnity, representation, warranty or other Liability
of any member of the Vishay Group or the VPG Group in respect of any VPG
Contract, any Assumed Liability or the MGF Business (including guarantees of
financing
incurred by customers or other
third parties in connection with purchases of products or services from the MGF
Business); and (vi) any other Contract as agreed between the parties.
- 13 -
“
VPG Group
” means VPG, each Subsidiary of VPG and each
other Person that is controlled directly or indirectly by VPG immediately after
the Distribution.
“
VPG Group Balance Sheet
” means the unaudited pro forma combined and
consolidated balance sheet of the VPG Group at April 3, 2010, substantially in
the form attached as
Annex A
.
“
VPG Indemnified Parties
” has the meaning set forth in
Section 5.2
of this Agreement.
“
VPG Information
” has the meaning set forth in
Section 4.6(a)
of this Agreement.
“
VPG Net Cash
” means the amount of (i) all cash and cash
equivalents less, without duplication, the sum of (ii) all notes payable to
banks, (iii) all other indebtedness owed to third parties and (iv) the principal
amount of the exchangeable notes due 2102 of Vishay allocated to VPG, in the
case of clauses (i), (ii) and (iii) of VPG and its Subsidiaries on a
consolidated basis, and in each case as recorded in accordance with GAAP.
“
VPG Net Cash Statement
” has the meaning set forth in
Section 2.17(a)
of this Agreement.
“
VPG Stock
” has the meaning set forth in the recitals to
this Agreement.
“
Wholly-owned Subsidiary
” of a Person means a Subsidiary of that
Person substantially all of whose voting securities and outstanding equity
interest are owned either directly or indirectly by such Person or one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries.
ARTICLE II
BUSINESS SEPARATION
Section 2.1
Separation
. Prior to the Distribution, each of Vishay
and VPG shall, and shall cause the applicable members of its Group to, complete
the Separation Transactions and the Capital Allocation Transactions and
otherwise take all actions necessary to implement the Separation on the terms
and subject to the conditions set forth in this Agreement. The parties
acknowledge that the Separation is intended to result in VPG, directly or
indirectly, operating the MGF Business, owning the Separated Assets and assuming
the Assumed Liabilities as set forth in this
Article II
. As promptly as practicable after the
Separation is complete and subject to the conditions set forth in
Section 3.2
, the parties shall take, or cause to be
taken, all actions that are necessary or appropriate to effectuate the
Distribution.
Section 2.2
[
Intentionally
omitted
]
- 14 -
Section 2.3
Transfer of Separated Assets; Assumption of
Assumed Liabilities
. (a)
Without limiting the generality of
Section 2.1
, on the terms and subject to the conditions
set forth in this Agreement, and in furtherance of the Separation, on or prior
to the Distribution Date:
(i)
Vishay shall, and shall cause its applicable Subsidiaries to, cause the
Separated Assets to be contributed, assigned, transferred, conveyed and
delivered, directly or indirectly, to VPG and its Subsidiaries, as applicable,
and VPG shall, and shall cause its applicable Subsidiaries to, accept from
Vishay and its Subsidiaries, all of Vishay’s and its Subsidiaries’ rights, title
and interest in and to all of the Separated Assets, which will result in VPG
owning, directly or indirectly, the MGF Business.
(ii)
VPG shall, and shall cause its applicable Subsidiaries to, accept, assume
and agree to faithfully perform, discharge and fulfill all of the Assumed
Liabilities in accordance with their respective terms. VPG shall, directly or
indirectly, be responsible for all of the Assumed Liabilities, regardless of
when or where such Assumed Liabilities arose or arise, or whether the facts on
which they are based occurred prior to or subsequent to the Distribution Date,
regardless of where or against whom such Assumed Liabilities are asserted or
determined or whether asserted or determined prior to the Distribution Date.
(b)
It is the intention of parties that the transfer of the Separated Assets
and the assumption of the Assumed Liabilities, as aforesaid, shall be
accomplished through the Separation Transactions, subject to the provisions of
Sections 2.7
,
2.8
,
2.9
and
2.10
.
Section 2.4
Separated Assets
. (a) For purposes of this Agreement,
“
Separated
Assets
” means, without duplication, those Assets
used or contemplated to be used or held for use exclusively or primarily in the
ownership, operation or conduct of the MGF Business or relating exclusively or
primarily to the MGF Business, including the following:
(i)
all Assets (including VPG Contracts) expressly identified in this
Agreement, in any Ancillary Agreement or in any Schedule hereto or thereto,
including those referred to on
Schedule 1.3
, as Assets to be transferred to, or retained
by, VPG or any other member of the VPG Group;
(ii)
any Exclusive VPG Contingent Gain or any Shared VPG Percentage of a
Shared Contingent Gain;
(iii)
the outstanding capital stock, units or other equity interests held by
VPG in its Subsidiaries and listed on
Schedule 2.4(a)(iii)
and the Assets owned by such Subsidiaries;
(iv)
all Assets properly reflected on the VPG Group Balance Sheet, excluding
Assets disposed of by Vishay or any other Subsidiary or entity controlled by
Vishay subsequent to the date of the VPG Group Balance Sheet;
(v)
all Assets that have been written off, expensed or fully depreciated by
Vishay or any Subsidiary or entity controlled by Vishay that, had they not been
written off, expensed or fully depreciated, would have been reflected on the VPG
Group Balance Sheet in accordance with accounting principles generally accepted
in the United States (“
GAAP
”);
- 15 -
(vi)
all Assets acquired by Vishay or any Subsidiary or entity controlled by
Vishay after the date of the VPG Group Balance Sheet and that would be reflected
on the balance sheet of VPG as of the Distribution Date, if such balance sheet
were prepared in accordance with GAAP;
(vii)
all Assets transferred to VPG or any member of the VPG Group pursuant to
Section 4.2
;
provided
,
however
, that any such transfer shall take effect
under
Section 4.2
and not under this
Section 2.4
; and
(viii)
any and all Assets owned or held immediately prior to the Distribution
Date by Vishay or any other member of the Vishay Group that are used in the MGF
Business. The intention of this clause (viii) is only to rectify any inadvertent
omission of transfer or conveyance of any Assets that, had the parties given
specific consideration to such Asset as of the date hereof, would have otherwise
been classified as a Separated Asset. No Asset shall be deemed to be a Separated
Asset solely as a result of this clause (viii) if such Asset is within the
category or type of Asset expressly covered by the subject matter of an
Ancillary Agreement. In addition, no Asset shall be deemed a Separated Asset
solely as a result of this clause (viii) unless a claim with respect thereto is
made by VPG or a member of the VPG Group on or prior to the second anniversary
of the Distribution Date.
Notwithstanding anything to the contrary contained in this
Section 2.4
or elsewhere in this Agreement, the Separated
Assets shall not in any event include the Excluded Assets referred to in
Section 2.4(b)(i)
below.
(b)
The following Assets shall not form part of the Separated Assets and
shall remain the exclusive property of Vishay or the relevant member of the
Vishay Group on and after the Separation (the “
Excluded Assets
”):
(i)
any Asset expressly identified on
Schedule 2.4(b)(i)
or
Schedule
2.16
;
(ii)
the rights of any member of the Vishay Group under any Shared Contract;
(iii)
any Asset transferred to Vishay or to any other relevant member of the
Vishay Group pursuant to
Section 4.2
;
provided
,
however
, that any such transfers shall take effect
under
Section 4.2
and not under this
Section 2.4
;
(iv)
any Exclusive Vishay Contingent Gain or any Shared Vishay Percentage of a
Shared Contingent Gain; and
(v)
any and all Assets that are expressly contemplated by this Agreement or
any Ancillary Agreement (or the Schedules hereto or thereto) as Assets to be
retained by Vishay or any other member of the Vishay Group.
- 16 -
Section 2.5
Liabilities
.
(a)
For the purposes of this Agreement, “
Assumed Liabilities
” shall mean
(without duplication):
(i)
any and all Liabilities that are expressly contemplated by this Agreement
or any Ancillary Agreement (or the Schedules hereto or thereto) as Liabilities
to be assumed by VPG or any member of the VPG Group, and all agreements,
obligations and Liabilities of any member of the VPG Group under this Agreement
or any of the Ancillary Agreements;
(ii)
subject to the terms of
Article VI
, all Exclusive VPG Contingent Liabilities and
the Shared VPG Percentage of any Shared Contingent Liabilities;
(iii)
all Liabilities to the extent relating to, arising out of or resulting
from any terminated, divested or discontinued businesses and operations of the
MGF Business;
(iv)
all Liabilities reflected as liabilities or obligations of VPG or its
Subsidiaries in the VPG Group Balance Sheet, subject to any discharge of such
Liabilities subsequent to the date of the VPG Group Balance Sheet;
(v)
all Environmental Liabilities (other than the Environmental Liabilities
under
Section 2.5(b)(v)
), whether arising prior to, on or after the
Distribution Date, to the extent arising out of or resulting from the use by the
MGF Business of any property owned, operated, used or leased in the course of
operating the MGF Business at any time or any other property where the MGF
Business contracted or arranged for disposal at any time;
provided
that
, notwithstanding such general rule,
Environmental Liabilities for the facilities set forth on
Schedule 2.5(b)(v)
shall be the obligation and Liability of
Vishay as specified in such
Schedule 2.5(b)(v)
. With respect to Environmental Liabilities
arising from any facility that was jointly used by VPG and Vishay, except as may
otherwise agreed between the parties, if one party was the primary user of that
property, that party shall be responsible to administer any Action related
thereto, including providing any required defense, and the other party shall
cooperate in the administration and defense. Liabilities associated with any
such Action shall be shared equally by Vishay and VPG unless there is another
allocation methodology that more accurately and reasonably reflects the
appropriate allocation of responsibility as between Vishay and VPG (including,
for the avoidance of doubt, a reasonable estimation of relative fault or cause
of the Liabilities);
- 17 -
(vi)
all other Liabilities (other than Taxes, which are allocated as set forth
in the Tax Matters Agreement and employee-related Liabilities, which are
allocated as set forth in the Employee Matters Agreement), in each case to the
extent relating to, arising out of or resulting from:
(A) the operation of the MGF Business, as
conducted at any time prior to, on or after the Distribution Date (including any
Liability relating to, arising out of or resulting from any act or failure to
act by any director, officer, employee, agent or representative (whether or not
such act or failure to act is or was within such Person’s authority)); or
(B)
any Separated Assets;
in any such case whether arising
prior to, on or after the Distribution Date; and
(vii)
any inadvertent omission of transfer or assumption of Liability that, had
the parties given specific consideration to such Liability as of the date
hereof, would have otherwise been classified as an Assumed Liability.
Notwithstanding the foregoing, the Assumed Liabilities shall not include
the Excluded Assumed Liabilities referred to in
Section 2.5(b)
below.
(b)
For the purposes of this Agreement, “
Excluded Assumed
Liabilities
” shall mean:
(i)
any and all Liabilities that are expressly contemplated by this Agreement
or any Ancillary Agreement (or the Schedules hereto or thereto) as Liabilities
to be retained or assumed by Vishay or any other member of the Vishay Group, and
all agreements and obligations of any member of the Vishay Group under this
Agreement or any of the Ancillary Agreements;
(ii)
any Liability which is expressly identified on
Schedule 2.5(b)(ii)
;
(iii)
any and all liabilities relating to, arising out of or resulting from any
Excluded Assets;
(iv)
subject to the terms of
Article VI
, all Exclusive Vishay Contingent Liabilities
and the Shared Vishay Percentage of any Shared Contingent Liabilities;
(v)
all Environmental Liabilities for the facilities set forth on
Schedule
2.5(b)(v)
and all Environmental Liabilities that are
not Assumed Liabilities under
Section 2.5(a)(v)
; and
(vi)
any inadvertent transfer, conveyance or assumption of any Liability that,
had the parties given specific consideration to such Liability as of the date
hereof, would have otherwise been classified as an Excluded Assumed Liability.
Section 2.6
Excluded Assumed
Liabilities
. Vishay shall,
or shall cause, as applicable, its Subsidiaries, to be responsible for the
Excluded Assumed Liabilities regardless of when or where such Liabilities arose
or arise, regardless of where such Liabilities are asserted or determined or
regardless of whether asserted or determined prior to the Distribution Date.
- 18 -
Section 2.7
Deferred Separation
Transactions
.
(a)
Misallocated Assets
. In the event that at any time or from time
to time (whether prior to, on or after the Distribution Date), any member of the
Vishay Group or any member of the VPG Group shall receive or otherwise possess
any Asset that is allocated to a member of the other Group pursuant to this
Agreement, any Ancillary Agreement or the Separation (including any remittances
from account debtors), Vishay shall or shall cause such member of the Vishay
Group or VPG shall or shall cause such member of the VPG Group, as the case may
be, to promptly transfer, or cause to be transferred, such Asset to the Person
so entitled thereto. Prior to any such transfer, the Person receiving or
possessing such Asset shall hold such Asset in trust for any such other Person.
Each party shall cooperate with the other party and use its commercially
reasonable efforts to set up procedures and notifications as are reasonably
necessary or advisable to effectuate the transfers contemplated by this
Section 2.7
.
(b)
Mistaken Assignments and
Assumptions
. If at anytime
there exists (i) Assets that either party discovers were, contrary to the
agreements between the parties, by mistake or unintentional omission,
transferred to VPG or retained by Vishay or (ii) Liabilities that either party
discovers were, contrary to the agreements between the parties, by mistake or
unintentional omission, assumed by VPG or not assumed by VPG or retained by the
Vishay Group, then the parties shall cooperate in good faith to effect the
transfer or retransfer of misallocated Assets, and/or the assumption or
reassumption of misallocated Liabilities, to or by the appropriate Person and
shall not use the determination that remedial actions need to be taken to alter
the original intent of the parties with respect to the Assets to be transferred
to or Liabilities to be assumed by VPG or retained by Vishay. Each party shall
reimburse the other or make other financial adjustments or other adjustments to
remedy any mistakes or omissions relating to any of the Assets transferred
hereby or any of the Liabilities assumed or retained hereby.
(c)
No Additional Consideration
. For the avoidance of doubt, the transfer or
assumption of any Assets or Liabilities under this
Section 2.7
shall be effected without any additional
consideration by either party.
Section 2.8
Consents and Governmental
Approvals
.
(a)
Transfers not Consummated Prior to Separation
Date
. If the transfer or
assignment of any Asset intended to be transferred or assigned hereunder is not
consummated prior to or on the Distribution Date, whether as a result of a
requisite Consent or Governmental Approval or for any other reason, then the
Person retaining such Asset shall thereafter hold such Asset for the use and
benefit, insofar as reasonably possible, of the Person entitled thereto until
the consummation of the transfer or assignment thereof (or as otherwise
determined by Vishay and VPG, as applicable). In addition, the Person retaining
such Asset shall take such other actions as may be reasonably requested by the
Person to whom such Asset is to be transferred in order to place such Person,
insofar as reasonably possible, in the same position as if such Asset had been
transferred as contemplated hereby and so that all the benefits and burdens
relating to such Asset, including possession, use, risk of loss, potential for
gain, and dominion, control and command over such Asset, are to inure from and
after the Distribution Date to the Person to
whom such Asset is to be transferred. Notwithstanding the foregoing, any
such Asset shall still be considered a Separated Asset or Excluded Asset, as
applicable.
- 19 -
(b)
Expenses
. The Person retaining an Asset due to the
deferral of the transfer and assignment of such Asset shall not be obligated, in
connection with the foregoing, to expend any money in connection with the
maintenance of the Asset or otherwise unless the necessary funds are advanced by
the Person to whom such Asset is to be transferred, other than reasonable
out-of-pocket expenses, attorneys’ fees and recording or similar fees, all of
which shall be promptly reimbursed by the Person to whom such Asset is to be
transferred;
provided
,
however
, that the Person retaining such Asset shall
provide prompt notice to the Person to whom such Asset is to be transferred of
the amount of all such expenses and fees.
(c)
No Additional Consideration
. For the avoidance of doubt, the transfer of
any Assets under this
Section 2.8
shall be effected without any additional
consideration by either party.
Section 2.9
Novation of the Assumed
Liabilities
.
(a)
Reasonable Best Efforts
. Each of Vishay and VPG, at the request of
the other and with the other’s reasonable best cooperation, shall use its
reasonable best efforts to obtain, or to cause to be obtained, any agreement,
instrument, Consent, substitution or amendment required to novate or assign all
rights and obligations under Contracts and other obligations or Liabilities of
any nature whatsoever that constitute Assumed Liabilities, or to obtain in
writing an unconditional release of all parties to such arrangements other than
any member of the VPG Group, so that, in any such case, VPG and the other
members of the VPG Group will be solely responsible for such Liabilities or, in
the case of Shared Contracts, to novate the rights and obligations under each
such Contract such that it is replaced with two separate Contracts, one of which
provides for the rights and obligations of a member or members of the Vishay
Group and the other of which provides for the rights and obligations of a member
or members of the VPG Group;
provided
,
however
, that neither the Vishay Group nor the VPG
Group shall be obligated to pay any consideration or assume any additional
obligation therefor to any third party from whom any such Consent, substitution
or amendment is requested. Each of Vishay and VPG, at the request of the other
and with the other’s reasonable best cooperation, shall use its reasonable best
efforts to obtain, or to cause to be obtained, any agreement, instrument,
Consent, substitution or amendment required to novate or assign all rights and
obligations under Contracts and other obligations or Liabilities of any nature
whatsoever that constitute Excluded Assumed Liabilities, or to obtain in writing
an unconditional release of all parties to such arrangements other than any
member of the Vishay Group, so that, in any such case, Vishay and the other
members of the Vishay Group will solely be responsible for such Liabilities or,
in the case of Shared Contracts, to novate the rights and obligations under each
such Contract such that it is replaced with two separate Contracts, one of which
provides for the rights and obligations of a member or members of the Vishay
Group and the other which provides for the rights and obligations of a member or
members of the VPG Group;
provided
,
however
, that neither the Vishay Group nor the VPG
Group shall be obligated to pay any consideration or assume any additional
obligation therefor to any third party from whom any such Consent, substitution
or amendment is requested.
- 20 -
(b)
Inability to Obtain
Novation
. If Vishay or VPG
is unable to obtain, or to cause to be obtained, any such required agreement,
instrument, Consent, release, substitution or amendment with respect to any such
Assumed Liability or Excluded Assumed Liability, as applicable, the applicable
member of the Vishay Group or the VPG Group, as applicable, shall continue to be
bound by such Contracts and other obligations and Liabilities and, unless not
permitted by Applicable Law or the terms thereof (except to the extent expressly
set forth in this Agreement or any Ancillary Agreement), Vishay, with respect to
any Excluded Assumed Liability, and VPG, with respect to any Assumed Liability,
shall, as agent or subcontractor for the other or such other Person, as the case
may be, pay, perform and discharge fully, or cause to be paid, transferred or
discharged all the obligations or other Liabilities of any member of the other’s
Group thereunder from and after the Distribution Date or, in the case of a
Shared Contract, such obligations or other Liabilities as pertain to the member
or members of its own Group. Notwithstanding the foregoing, any such Liability
shall still be considered an Assumed Liability or Excluded Assumed Liability, as
applicable;
provided
,
however
, that neither Vishay nor VPG shall (nor shall
either permit any member of its respective Group to), amend, renew, change the
term of, modify the obligations under, or transfer to a third Person, any such
Contract or other obligation or other Liability without the written consent of
the other. Each of Vishay and VPG shall each use reasonable best efforts to
provide prompt notice to the other of any request they receive from the
counterparty to any Contract for any such amendment, renewal, change,
modification or transfer. Vishay, with respect to any Assumed Liability and VPG,
with respect to any Excluded Assumed Liability, shall, without further
consideration, pay and remit, or cause to be paid or remitted, to the other or
its appropriate Subsidiary promptly all money, rights and other consideration
received by it or any member of its Group in respect of such performance (unless
any such consideration is, with respect to consideration received by Vishay or
any member of the Vishay Group, an Excluded Asset, or, with respect to
consideration received by VPG or any member of the VPG Group, a Separated
Asset). If and when any such agreement, instrument, Consent, release,
substitution or amendment shall be obtained or such Contract or other
obligations and Liabilities shall otherwise become assignable or able to be
novated, Vishay, for any Assumed Liability, and VPG, for any Excluded Assumed
Liability, shall thereafter assign, or cause to be assigned, all of its rights,
obligations and other Liabilities thereunder or any rights or obligations of any
member of its respective Group to the other without payment of further
consideration and the other shall, without the payment of any further
consideration, assume such rights, obligations and Liabilities.
Section 2.10
Documents Relating to Transfers of the
Separated Assets and Assumption
of the Assumed Liabilities
. In furtherance of the Separation and the
Distribution, including as contemplated by the Separation Transactions, (i)
Vishay shall execute and deliver, and shall cause its Subsidiaries to execute
and deliver, such bills of sale, stock powers, certificates of title,
assignments of Contracts and other instruments of transfer, conveyance and
assignment as and to the extent necessary to evidence the transfer, conveyance
and assignment of all of Vishay’s and its Subsidiaries’ right, title and
interest in and to the Separated Assets to VPG or its Subsidiaries and (ii) VPG
shall execute and deliver, and shall cause its Subsidiaries to execute and
deliver, to Vishay and its Subsidiaries such assumptions of Contracts and other
instruments of assumption as and to the extent necessary to evidence the valid
and effective assumption of the Assumed Liabilities by VPG. All conveyance and
assumption documents and instruments used to
effectuate the Separation and the Distribution shall be in form mutually
satisfactory to Vishay and VPG.
- 21 -
Section 2.11
Termination of Agreements
.
(a)
Except as set forth in
Section 2.11(b)
, in furtherance of the releases and other
provisions of
Section 5.1
, VPG and each member of the VPG Group, on the
one hand, and Vishay and each member of the Vishay Group, on the other hand,
effective as of the Distribution Date, shall terminate, any and all Contracts
(including any intercompany accounts payable or accounts receivable accrued as
of the Distribution Date that are reflected in the books and records of the
parties or otherwise documented in writing in accordance with past practices),
whether or not in writing, between or among VPG and/or any member of the VPG
Group, on the one hand, and Vishay and/or any member of the Vishay Group, on the
other hand, effective as of the Distribution Date. No such terminated Contracts
(including any provision thereof which purports to survive termination) shall be
of any further force or effect after the Distribution Date. Each party shall, at
the reasonable request of any other party, take, or cause to be taken, such
other actions as may be necessary to effect the foregoing.
(b)
The provisions of
Section 2.11(a)
shall not apply to any of the following
Contracts (or to any of the provisions thereof) in: (i) this Agreement or the
Ancillary Agreements (and each other agreement or instrument expressly
contemplated by this Agreement or any Ancillary Agreement to be entered into by
any of the parties or any of the members of their respective Groups); (ii) any
Contracts to which any Person other than the parties and their respective
Affiliates is a party (it being understood that to the extent that the rights
and obligations of the parties and the members of their respective Groups under
any such Contracts constitute Separated Assets or Assumed Liabilities, they
shall be assigned or assumed, as the case may be, pursuant to
Section 2.3
); (iii) any Contracts to which any non-wholly
owned Subsidiary of Vishay or VPG, as the case may be, is a party (it being
understood that directors’ qualifying shares or similar interests will be
disregarded for purposes of determining whether a Subsidiary is wholly owned);
(iv) intercompany Contracts or accounts receivable entered into or generated in
the ordinary course of business; or (v) any other Contracts that this Agreement
or any Ancillary Agreement expressly contemplates will survive the Distribution
Date.
Section 2.12
Release of Security
Interest
. Upon VPG’s
reasonable request, Vishay shall use its reasonable best efforts to obtain from
third parties the release of any Security Interest granted by Vishay (or any
member of its Group) on any Separated Asset.
Section 2.13
No Representation or
Warranty
.
(a)
No party to this Agreement, any Ancillary Agreement, or any other
agreement or document contemplated by this Agreement, any Ancillary Agreement or
otherwise, is making any representation as to, warranty of or covenant, express
or implied, with respect to: (a) any of the Separated Assets, the MGF Business,
the Excluded Assets or the Assumed Liabilities, including any warranty of
merchantability or fitness for a particular purpose, or any representation or
warranty regarding any Consents or Governmental Approvals required in connection
therewith or their transfer, (b) the value or freedom from Encumbrances of, or
any other matter concerning, any Separated Asset or Excluded Asset, or regarding
the absence of any
defense or right of
setoff or freedom from counterclaim with respect to any claim or other Separated
Asset or Excluded Asset, including any account receivable of either party, or
(c) the legal sufficiency of any assignment, document or instrument delivered
hereunder to convey title to any Separated Asset or Excluded Asset upon the
execution, delivery and filing hereof or thereof.
- 22 -
(b)
EXCEPT AS MAY EXPRESSLY BE SET FORTH HEREIN OR IN ANY ANCILLARY
AGREEMENT, ALL ASSETS TO BE TRANSFERRED AS SET FORTH HEREIN OR IN ANY ANCILLARY
AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT CONTEMPLATED HEREBY OR THEREBY
SHALL BE TRANSFERRED “AS IS, WHERE IS” (AND, IN THE CASE OF ANY REAL PROPERTY,
BY MEANS OF A QUITCLAIM OR SIMILAR FORM DEED OR CONVEYANCE) AND THE TRANSFEREE
SHALL BEAR THE ECONOMIC AND LEGAL RISK THAT ANY CONVEYANCE SHALL PROVE TO BE
INSUFFICIENT TO VEST IN THE TRANSFEREE GOOD AND
MARKETABLE TITLE, AND CLEAR OF ANY SECURITY
INTEREST OR ANY NECESSARY CONSENTS OR GOVERNMENTAL APPROVALS ARE NOT OBTAINED OR
THAT ANY REQUIREMENTS OF LAWS OR JUDGMENTS ARE NOT COMPLIED WITH.
Section 2.14
Use of Cash
. From the date hereof until the Distribution
Date, Vishay shall be entitled to use, retain or otherwise dispose of all cash
generated by the MGF Business and the Separated Assets in accordance with the
ordinary course of operation of Vishay.
Section 2.15
Plan of Reorganization
. This Agreement shall constitute a plan of
reorganization for purposes of Section 368 of the Code.
Section 2.16
Assets Transferred to
Vishay
. In connection with
the Separation, VPG shall, or shall cause the applicable members of the VPG
Group to, cause those assets identified on
Schedule 2.16
(which are intended to be Excluded Assets) to
be contributed, assigned, transferred, conveyed and delivered, directly or
indirectly, to Vishay and one or more members of the Vishay Group, as
applicable, and Vishay shall, and shall cause the applicable members of the
Vishay Group to, accept from VPG and the applicable members of the VPG Group all
of their rights, title and interest in and to all such assets identified on
Schedule 2.16
. The terms and provisions of
Sections
2.7
,
2.8
,
2.10
,
2.12
,
2.13
and
4.2
as such terms and provisions relate to the
contribution, assignment, transfer, conveyance or delivery of assets from Vishay
or a member of the Vishay Group to VPG or a member of the VPG Group shall apply
to any contribution, assignment, transfer, conveyance or delivery of assets
contemplated by this
Section 2.16
,
mutatis
mutandis
.
Section 2.17
Net Cash
.
(a)
No later than fifteen (15) Business Days following the Distribution Date,
VPG shall determine the VPG Net Cash as of the opening of business on the
Distribution Date (the “
Actual VPG Net Cash
”). As soon as reasonably practicable, but in
no event later than five (5) Business Days after making such determination, VPG
shall prepare and deliver to Vishay a calculation of the VPG Net Cash, together
with reasonably detailed supporting information (the “
VPG Net Cash Statement
”).
- 23 -
(b)
Thereafter, VPG will provide Vishay and its accountants with access to
the records and employees of VPG, to the extent reasonably related to Vishay’s
evaluation of the VPG Net Cash Statement, the calculation of the VPG Net Cash or
the resolution of any dispute with respect thereto. Within ten (10) Business
Days after Vishay’s receipt of the VPG Net Cash Statement, Vishay shall notify
VPG in writing as to whether Vishay agrees or disagrees with the VPG Net Cash
Statement, which notice, in the case of a disagreement, shall set forth in
reasonable detail the particulars of such disagreement. In the event that Vishay
does not provide a notice of disagreement within such ten (10) Business Day
period, then Vishay shall be deemed to have accepted the calculations and the
amounts set forth in the VPG Net Cash Statement delivered by VPG, which shall be
final, binding and conclusive for all purposes hereunder. If any notice of
disagreement is timely provided in accordance with this
Section 2.17
, VPG and Vishay shall each use commercially
reasonable efforts for a period of ten (10) Business Days thereafter (or such
longer period as they may mutually agree) to resolve any disagreements with
respect to the calculations in the VPG Net Cash Statement. If, at the end of
such period, VPG and Vishay are unable to resolve any disagreements as to items
in the VPG Net Cash Statement, then the Parties shall engage KPMG LLP (the
“
Auditor
”) to resolve any remaining disagreements. The
Auditor shall be charged with determining as promptly as practicable, but in any
event within thirty (30) days after the date on which such dispute is referred
to the Auditor, whether the Actual VPG Net Cash as set forth in the VPG Net Cash
Statement was prepared in accordance with this Agreement whether and to what
extent the Actual VPG Net Cash requires adjustment. The fees and expenses of the
Auditor shall be shared by VPG and Vishay in inverse proportion to the relative
amounts of the disputed amounts determined in favor of VPG and Vishay,
respectively. The determination of the Auditor shall be final, binding and
conclusive for all purposes hereunder. The date on which the Actual VPG Net Cash
is finally determined in accordance with this
Section 2.17
is referred to as the “
Determination Date
.”
(c)
If the Actual VPG Net Cash, as determined in accordance with this Section
2.17, exceeds $71,500,000, VPG shall make a payment to Vishay in the amount of
the excess, which for all purposes shall be deemed a dividend to Vishay from VPG
made immediately prior to the Separation. If the Actual VPG Net Cash is less
than $58,500,000, Vishay shall make a payment to VPG in the amount of the
difference, which for all purposes shall be deemed a capital contribution by
Vishay to VPG made immediately prior to the Separation. Such payment by VPG or
Vishay, as the case may be, shall be made no later than five (5) Business Days
after the Determination Date by wire transfer of immediately available funds.
ARTICLE III
THE DISTRIBUTION AND ACTIONS PENDING THE
DISTRIBUTION
Section 3.1
Transactions Prior to the
Distribution
. Subject to
the conditions specified in
Section 3.2
, Vishay and VPG shall use their reasonable
best efforts to consummate the Distribution. Such efforts shall include, without
limitation, those specified in this
Section 3.1
.
(a)
Separation Transactions and Capital Allocation
Transactions
. Vishay and
VPG shall cooperate, and shall use their reasonable best efforts, to effect the
Separation Transactions and the Capital Allocation Transactions on or prior to
the Distribution Date.
- 24 -
(b)
Form 10 Registration
Statement
. Vishay and VPG
shall cooperate to cause the Form 10 Registration Statement heretofore filed
with the Commission to become and remain effective under Applicable Law,
including, without limitation, filing such amendments or supplements to the Form
10 Registration Statement as may be required by the Commission or federal, state
or foreign securities laws.
(c)
Information Statement; Other
Materials
. Vishay shall,
as soon as practicable after the Form 10 Registration Statement is declared
effective under the Exchange Act and the Vishay Board has approved the
Distribution, cause the Information Statement to be mailed to the Record
Holders. Vishay and VPG shall prepare and mail, on or prior to the Distribution
Date, to the holders of Vishay Stock, such other Information concerning VPG, the
MGF Business, operations and management, the Separation, the Distribution and
such other matters as Vishay in its sole and absolute discretion determines is
necessary or desirable or as may be required by Applicable Law.
(d)
Other Actions
. Vishay and VPG shall take all other actions
as Vishay in its sole and absolute discretion determines are necessary or
appropriate under applicable federal or state securities or blue sky laws of the
United States (and any comparable laws under any foreign jurisdiction) in
connection with the Distribution.
(e)
NYSE Listing
. VPG shall prepare, file and use its
reasonable best efforts to obtain approval of, an application for listing of VPG
common stock on The New York Stock Exchange (“
NYSE
”), subject to official notice of
distribution.
(f)
Accounting Matters
. All prepaid items and reserves that have
been maintained by Vishay on a consolidated basis but related in part to
Separated Assets or Assumed Liabilities shall be allocated between Vishay and
VPG as determined by Vishay in its reasonable discretion.
(g)
Corporate Matters
. Vishay and VPG shall take all necessary
action (i) to adopt the Amended and Restated Certificate of Incorporation and
Amended and Restated Bylaws of VPG in the form filed as exhibits to the Form 10
Registration Statement and (ii) to cause the Board of Directors of VPG to
consist of the persons identified in the Information Statement as the directors
of VPG to be in office following the Separation.
Section 3.2
Conditions Precedent to Consummation of the
Distribution
. The
obligation of Vishay to effect the Distribution is subject to the satisfaction
or the waiver by Vishay, in its sole and absolute discretion, of each of the
following conditions:
(a)
Approval by Vishay’s Board
. This Agreement and the transactions
contemplated hereby, including establishing the Record Date and the declaration
of the Distribution, shall have been duly taken and approved by the Vishay Board
in accordance with Applicable Law and the certificate of incorporation and
bylaws of Vishay.
(b)
Form 10 Registration
Statement
. The Form 10
Registration Statement shall have been declared effective by the Commission, and
there shall be no stop-order in effect
with respect thereto, and no proceeding for that purpose shall have been
instituted by the Commission.
- 25 -
(c)
Other Actions
. The actions and filings necessary or
appropriate under applicable federal and state securities laws and state blue
sky laws of the United States (and any comparable laws under any foreign
jurisdictions) in connection with the Distribution (including, if applicable,
any actions and filings relating to the Form 10 Registration Statement) and any
other necessary and applicable Consents shall have been taken, obtained and,
where applicable, have become effective or been accepted, each as the case may
be.
(d)
NYSE Listing
. VPG common stock to be distributed pursuant
to the Distribution shall have been approved for listing on NYSE, subject to
official notice of the Distribution.
(e)
No Legal Restraints
. No Governmental Authority of competent
jurisdiction shall have, after the date of this Agreement, enacted, issued,
promulgated, enforced or entered any statute, rule, regulation, judgment,
decree, injunction or other order (whether temporary, preliminary or permanent),
which is in effect and prohibits or materially restricts or materially adversely
affects the consummation of the Separation or the Distribution or any of the
other transactions contemplated by this Agreement and the Ancillary Agreements.
(f)
Separation
. The Separation shall have become effective
in accordance with the terms of this Agreement and the Separation Transactions
and the Capital Allocation Transactions.
(g)
Private Letter Ruling and Opinion of Tax
Counsel
. Vishay shall have
obtained a favorable private letter ruling from the IRS that the Distribution is
part of a reorganization within the meaning of Section 368(a)(1)(D) of the Code
and that the Distribution generally will not give rise to income or gain to
Vishay or, pursuant to Section 355, its shareholders, and such ruling shall
continue in effect, and Vishay shall have received an opinion of the law firm of
Pepper Hamilton LLP to the same effect.
(h)
Approval from Israeli Tax
Authorities
. Vishay shall
have received a ruling from the Israeli taxing authorities that the Separation
as it relates to the transfer to the VPG Group of Israeli Companies held by the
Vishay Group will not give rise to a material amount of current Taxes under any
Applicable Law in Israel.
(i)
Consents and Approvals
. Any and all Consents and Governmental
Approvals necessary to consummate the Separation and the Distribution shall have
been obtained and be in full force and effect, except where the failure to
obtain such consents or approvals would not have a material adverse effect on
either (A) the ability of the parties to complete the transactions contemplated
by this Agreement or any Ancillary Agreement or (B) the business, Assets,
Liabilities, condition or results of operations of VPG and its Subsidiaries, or
Vishay and its Subsidiaries, in each case, taken as a whole (such Consents and
Governmental Approvals, “
Material Consents and
Approvals
”). As of the
date of this Agreement, other than the private letter ruling from the IRS and
the ruling from the Israeli taxing authorities listed separately above
under
Sections 3.2(g)
and
3.2(h)
respectively, the parties are not aware of
any Material Consents and Governmental Approvals.
- 26 -
(j)
Ancillary Agreements; Performance of
Obligations
. Vishay shall
have received duly executed counterparts of each Ancillary Agreement from the
members of the VPG Group party thereto, and VPG (and the applicable members of
the VPG Group) shall have fully performed its or their obligations hereunder and
thereunder which are required to be performed prior to or at the time of the
Distribution.
(k)
Other Transactions
. The parties shall have consummated any other
transactions in connection with the Distribution that are contemplated by the
Information Statement to be consummated prior to or at the time of the
Distribution and are not specifically referred to in this Agreement or the
Ancillary Agreements.
(l)
No Other Events
. No other events or developments shall have
occurred that, in the judgment of the Vishay Board, in its sole and absolute
discretion, would result in the Separation or the Distribution having a material
adverse effect on Vishay, its stockholders, the Vishay Business or the MGF
Business.
The foregoing conditions are for the sole benefit of Vishay and shall not
give rise to or create any duty on the part of Vishay or the Vishay Board to
waive or not to waive any such conditions or in any way limit Vishay’s right to
terminate this Agreement as set forth in
Article
IX
or alter the consequences of any such
termination from those specified in
Article IX
. Any determination made by Vishay prior to
the Distribution concerning the satisfaction or waiver of any or all of the
conditions set forth in this
Section 3.2
shall be conclusive.
Section 3.3
Documents to be Delivered by
Vishay
. On or prior to the
Distribution Date, Vishay will deliver, or will cause its appropriate
Subsidiaries to deliver, to VPG all of the following:
(a)
In each case where Vishay or any other member of the Vishay Group is a
party to any Ancillary Agreement, a duly executed counterpart of such Ancillary
Agreement;
(b)
Resignations of each individual listed on
Schedule 3.3(b)
, who is a director and/or officer of any
member of the VPG Group;
(c)
Any other agreements, documents and instruments necessary to effectuate
the Separation; and
(d)
Such other agreements, documents or instruments as the parties may agree
are necessary or desirable in order to achieve the purposes hereof.
Section 3.4
Documents to be Delivered by
VPG
. On or prior to the
Distribution Date, VPG will deliver, or will cause its appropriate Subsidiaries
to deliver, to Vishay all of the following:
(a)
In each case where VPG or any other member of the VPG Group is a party to
any Ancillary Agreement, a duly executed counterpart of such Ancillary
Agreement;
- 27 -
(b)
Resignations of each individual listed on
Schedule 3.4(b)
who is a director and/or officer of any
member of the Vishay Group; and
(c)
Any other agreements, documents and instruments necessary to effectuate
the Separation; and
(d)
Such other agreements, documents or instruments as the parties may agree
are necessary or desirable in order to achieve the purposes hereof.
Section 3.5
Distribution
.
(a)
Sole Discretion
. Vishay shall, in its sole and absolute
discretion, determine whether or not to proceed with all or part of the
Distribution, determine the Distribution Date and determine whether to modify or
change the terms of the Distribution, including, without limitation, the form,
structure and terms of any transaction(s) to effect the Distribution (including
the Separation Transactions, the Capital Allocation Transactions and any other
transactions provided for in this Agreement) or the timing of and conditions to
the consummation of the Distribution. VPG shall cooperate with Vishay in all
respects to accomplish the Distribution and shall, at Vishay’s direction,
promptly take any and all actions reasonably necessary or desirable in Vishay’s
sole and absolute discretion to effect the Distribution.
(b)
Effective Time
. The Distribution shall be effective at 12:01
a.m., Eastern Time, on the Distribution Date (the “
Effective Time
”).
(c)
Actions in Connection with
Distribution
. Unless
Vishay has previously determined not to proceed with the Separation, Vishay and
VPG will cause to be taken the following actions in connection with the
Distribution:
(i)
VPG shall appoint a registrar and transfer
agent (the “
Registrar and
Transfer Agent
”) for the purpose of recording the ownership
and transfer of record of the holders of VPG common stock and VPG Class B common
stock. Such record of ownership and transfer shall be maintained in book entry
form only, and no physical certificates evidencing the ownership of the VPG
common stock or VPG Class B common stock shall be issued.
(ii)
On or prior to the Distribution Date, VPG
shall issue to Vishay and Vishay shall deliver to Agent, in each case by
appropriate entry on the books and records of the Registrar and Transfer Agent,
a sufficient number of shares of VPG common stock and VPG Class B common stock
for distribution on the Distribution Date to the Record Holders of Vishay common
stock and Vishay Class B common stock, respectively.
(iii)
On the Distribution Date, (x) each Record
Holder of Vishay common stock will be entitled to receive in the Distribution a
number of shares of VPG common stock equal to the number of shares of Vishay
common stock held by such Record Holder on the Record Date multiplied by the
distribution ratio to be determined by the Vishay Board when it declares the
Distribution (the “
Common Stock Distribution
Ratio
”), and (y) each
Record Holder of Vishay Class B Common Stock will be entitled to receive in the
Distribution a number of shares of VPG Class B Common Stock equal to the number
of shares of Vishay Class B Common Stock held by such Record Holder on the
Record Date multiplied by the distribution ratio to be determined by the Vishay
Board when it declares the Distribution (the “
Class B Common Stock Distribution
Ratio
”). The Vishay Board
shall have the right to adjust the Common Stock Distribution Ratio and/or the
Class B Common Stock Distribution Ratio at any time prior to the
Distribution.
- 28 -
(iv)
As promptly as practicable after the
Distribution Date, the Registrar and Transfer Agent will send to each Record
Holder, at the address of such Record Holder as it appears on the books and
records of the registrar and transfer agent for the Vishay common stock and the
Vishay Class B common stock, as the case may be, an account statement showing
the number of shares of VPG common stock and VPG Class B common stock held by
such Record Holder as of the Distribution Date.
(v)
Vishay and VPG, as the case may be, will
provide to the Agent and the Registrar and Transfer Agent all authorizations and
other documentation and any Information required in order to complete the
Distribution on the basis set forth in this
Section 3.5
. No action will be necessary for any Record
Holder of Vishay to receive VPG common stock and/or VPG Class B Common Stock, as
applicable, or cash in lieu of fractional shares in the
Distribution.
(d)
Fractional Shares
. No fractional shares of VPG common stock or
VPG Class B common stock will be issued. Instead, Record Holders will receive
cash in lieu of any fractional shares, in accordance with the following
procedures.
(i)
Vishay shall direct the Agent to determine the
number of fractional shares of VPG common stock and VPG Class B Common Stock
allocable to each Record Holder of Vishay common stock and Vishay Class B Common
Stock, as applicable.
(ii)
The Agent shall aggregate all fraction shares
of VPG common stock and sell the whole shares obtained thereby in open market
transactions or otherwise as soon as practicable on or after the Distribution
Date at then prevailing trading prices and shall cause to be distributed to each
Record Holder of Vishay common stock, in lieu of any fractional share of VPG
common stock, such Record Holder’s ratable share of the proceeds of such sale.
Solely for purposes of computing fractional share interests pursuant to this
Section 3.5(d)(ii)
, the beneficial owner of Vishay Stock held of
record in the name of a nominee in any nominee account, if and to the extent
Vishay is advised in writing of such nominee relationship prior to the
Distribution Date, shall be treated as the Record Holder with respect to such
shares.
- 29 -
(iii)
Vishay shall cause to be delivered to the
Agent cash in an amount equal to the total of all fractional shares of VPG Class
B common stock multiplied by the amount of cash per share of VPG common stock
distributed to Record Holders of Vishay common stock in lieu of fractional
shares. The Agent shall cause to be distributed to each Record Holder of Vishay
Class B common stock, in lieu of any fractional share of VPG Class B common
stock, such holder’s ratable share of the cash provided by Vishay.
(iv)
All cash in lieu of fractional shares shall be
delivered to the Record Holders by check delivered to the address of such holder
as it appears on the books and records of the registrar and transfer agent for
the Vishay common stock and the Vishay Class B common stock, as the case may be,
or by such other means as the Record Holder and the Agent shall
agree.
ARTICLE IV
ADDITIONAL COVENANTS, FURTHER ASSURANCES AND
OTHER MATTERS
Section 4.1
Provision of Corporate
Records
. Prior to or as
promptly as practicable after the Distribution Date, each of Vishay and VPG
shall deliver or make available to the other all corporate books and records of
the other Group in its possession, and complete and accurate copies of all
relevant portions of all corporate books and records of the Vishay Group
relating directly and primarily to the other’s Business (and, in the case of
VPG, relating to the Separated Assets or the Assumed Liabilities), including, in
each case, all active agreements, active litigation files, government filings
and returns or reports relating to Taxes for all open periods. Subject to
Section 4.5
and
Section 4.6
, each party may retain complete and accurate
copies of such books and records. From and after the Distribution Date, all such
books, records and copies shall be the property of the other party. The costs
and expenses incurred in the provision of records or other Information to a
party shall be paid for by the receiving party, or as the parties shall
otherwise agree.
Section 4.2
Further Assurance
.
(a)
In addition to the actions specifically provided for elsewhere in this
Agreement (such as
Section 2.7
and
Section 2.11(a)
), Vishay and VPG agree to execute or cause to
be executed by the appropriate parties and deliver, as appropriate, such other
agreements, instruments and other documents as may be necessary or desirable in
order to effect the purposes of this Agreement and the Ancillary Agreements.
(b)
Without limiting the generality of the foregoing, at the request of VPG,
and without further consideration, Vishay will execute and deliver, and will
cause the applicable members of the Vishay Group to execute and deliver, to VPG
and the applicable members of the VPG Group such other instruments of transfer,
conveyance, assignment, substitution, confirmation or other documents and take
such action as VPG may reasonably deem necessary or desirable in order to more
effectively transfer, convey and assign to VPG and the applicable members of the
VPG Group and confirm VPG’s and the applicable members’ of the VPG Group title
to all of the assets, rights and other things of value contemplated to be
transferred to VPG and the applicable members of the VPG Group pursuant to this
Agreement, the Ancillary Agreements, and any documents referred to herein or
therein, to put VPG and the applicable members of the VPG Group in actual
possession and operating control thereof and to permit VPG and the applicable
members of the VPG Group to exercise all rights with respect thereto (including,
without limitation, rights under Contracts and other arrangements as to which
the consent of any third party to the transfer thereof shall not have previously
been obtained). Without limiting the generality of the foregoing, at the request
of Vishay and without further consideration, VPG will execute and deliver, and
will cause the applicable members of the VPG Group to execute and deliver, to
Vishay and the applicable members of the Vishay Group all instruments,
assumptions, novations, undertakings, substitutions or other documents and take
such other action as Vishay may reasonably deem necessary or desirable in order
to have VPG and the applicable members of the VPG Group fully and
unconditionally assume and discharge the liabilities contemplated to be assumed
by VPG and the applicable members of the VPG Group under this Agreement, any
Ancillary Agreement or any document in connection herewith or therewith and to
relieve the Vishay and the applicable members of the Vishay Group of any
liability or obligation with respect thereto and evidence the same to third
parties.
- 30 -
(c)
Neither Vishay nor VPG shall be obligated, in connection with this
Section 4.2
, to expend money other than reasonable
out-of-pocket expenses, attorneys’ fees and recording or similar fees, unless
reimbursed by the other party.
(d)
Furthermore, each party, at the request of the other party, shall execute
and deliver such other instruments and do and perform such other acts and things
as may be necessary or desirable for effecting completely the consummation of
the transactions contemplated hereby.
Section 4.3
Agreement For Exchange Of
Information
.
(a)
Generally
. Each of Vishay and VPG, on behalf of its
respective Group, agrees to provide, or cause to be provided, to the other
party’s Group and its authorized accountants, counsel and other designated
representatives, at any time after the Distribution Date, reasonable access
during normal business hours and as soon as reasonably practicable after written
request therefor, (i) all Information regularly provided by such respective
Group to the other Group prior to the Distribution Date, and (ii) any
Information in the possession or under the control of such respective Group that
the requesting party reasonably needs (A) to comply with reporting, disclosure,
filing or other requirements imposed on the requesting party (including under
applicable securities and tax laws) by a Governmental Authority having
jurisdiction over the requesting party, (B) for use in any other judicial,
regulatory, administrative or other proceeding or in order to satisfy audit,
accounting, claims, regulatory, litigation or other similar requirements, in
each case, other than claims or allegations that one party to this Agreement has
against the other, (C) to comply with its obligations under this Agreement or
any Ancillary Agreement, (D) to comply with reporting, filing and disclosure
obligations, (E) for the preparation of financial statements or completing an
audit, (F) for use in compensation, benefit or welfare plan administration or
other bona fide business purposes or (G) for the conduct of the ongoing
businesses of Vishay or VPG, as the case may be; provided,
however
, that in the event that either Vishay or VPG
determines that any such provision of or access to Information would be
commercially detrimental in any material respect, violate any Applicable Law or
agreement or waive any Privilege, the parties shall take all reasonable measures
to permit the compliance with such obligations in a manner that avoids any such
harm or consequence and shall comply with the applicable provisions of this
Agreement. Each of Vishay and VPG agree to make their respective personnel
available during normal business hours to discuss the Information exchanged
pursuant to this
Section 4.3
provided
, that such access does not interfere with the
day-to-day operations of the applicable party.
- 31 -
(b)
Financial Information
. Without limiting the generality of
Section 4.3(a)
, until the end of the first full VPG fiscal
year occurring after the Distribution Date (and for a reasonable period of time
afterwards as required for each party to prepare consolidated financial
statements or complete a financial statement audit for the fiscal year during
which the Distribution Date occurs), each party shall use its commercially
reasonable efforts, to cooperate with the other party’s Information requests to
enable the other party to meet its timetable for dissemination (in accordance
with applicable securities laws) of its earnings releases and financial
statements and to enable such other party’s auditors to timely complete their
audit of the annual financial statements and review of the quarterly financial
statements of such party.
(c)
Ownership of Information
. Any Information owned by a party that is
provided to the other party pursuant to this
Section 4.3
shall be deemed to remain the property of the
party that owned and provided such Information. Unless specifically set forth
herein, nothing contained in this Agreement shall be construed as granting or
conferring rights of license or ownership in any Information owned by one party
hereunder to the other party hereunder.
(d)
Record Retention
. Except with respect to Information for which
a different retention policy is specified in an Ancillary Agreement, to
facilitate the exchange of Information contemplated by this
Section 4.3
and other provisions of this Agreement after
the Distribution Date, each party agrees to, and to use its reasonable best
efforts to cause the members of its Group to, retain all Information related to
the MGF Business in their respective possession or control on the Distribution
Date in accordance with the record retention and destruction policies of the
applicable Business, as in effect immediately prior to the Distribution Date or
such other policies and procedures as may reasonably be adopted by the
applicable party after the Distribution Date as provided herein. No party will
destroy, or permit any member of its Group to destroy, any Information which the
other party may have the right to obtain pursuant to this Agreement without
first notifying the other party of the proposed destruction and giving the other
party the opportunity to take possession of such Information prior to such
destruction;
provided
,
however
, that no party will destroy, or permit any
member of its Group to destroy, any Information required to be retained by
Applicable Law.
(e)
Limitation of Liability
. Each party will use its reasonable best
efforts to ensure that Information provided to the other party is accurate and
complete;
provided
,
however
, that, except as otherwise provided in any
Ancillary Agreement, in the absence of gross negligence or willful misconduct by
the party providing such Information, no party shall have any liability to any
other party in the event that any Information exchanged or provided pursuant to
this
Section 4.3
is found to be inaccurate. No party shall
have any liability to the other party if any Information is destroyed after
commercially reasonable efforts by such party to comply with the provision of
this
Section 4.3
.
- 32 -
(f)
Other Agreements Providing for Exchange of
Information
. The rights
and obligations granted under this
Section 4.3
are subject to any specific limitations,
qualifications or additional provisions on the sharing, exchange or confidential
treatment of Information set forth in this Agreement and any Ancillary
Agreement.
(g)
Compensation for Providing
Information
. The party
requesting Information agrees to reimburse the other party for the reasonable
out-of-pocket costs and expenses, if any, of creating, gathering and copying
such Information, to the extent that such costs and expenses are incurred for
the benefit of the requesting party.
Section 4.4
Production of Witnesses; Records;
Cooperation
.
(a)
Subject to
Section 4.6
, after the Distribution Date, except in the
case of any Action by one or more members of one Group against one or more
members of the other Group, each party shall use its reasonable best efforts to
make available to the other party, upon written request, the former, current and
future directors, officers, employees, other personnel and agents of the members
of its respective Group as witnesses and any books, records or other documents
within its control or which it otherwise has the ability to make available, to
the extent that any such Person (giving consideration to business demands of
such directors, officers, employees, other personnel and agents) or books,
records or other documents may reasonably be required in connection with any
Action in which the requesting party may from time to time be involved,
regardless of whether such Action is a matter with respect to which
indemnification may be sought hereunder. The requesting party shall reimburse
the other party for its reasonable out-of-pocket cost and expenses in connection
with requests made under this
Section 4.4
.
(b)
Without limiting the forgoing but subject to
Section 4.6
, the parties shall cooperate and consult to
the extent reasonably necessary with respect to any Action, except in the case
of an adversarial Action by one or more members of one Group against one or more
members of the other Group.
Section 4.5
Confidentiality
.
(a)
Subject to
Section 4.6
, which shall govern Privileged Information,
from and after the Distribution Date, Vishay and VPG shall hold and shall cause
each member of their respective Groups to hold, and shall each cause their
respective directors, officers, employees, agents, consultants, advisors and
other representatives to hold, in strict confidence and not to disclose or
release without the prior written consent of the other party, any and all
Confidential Information of the other party’s Group;
provided
, that each party may disclose, or may permit
disclosure of, Confidential Information (i) to its respective auditors,
attorneys, financial advisors, bankers and other appropriate consultants and
advisors who have a need to know such Confidential Information and are informed
of such party’s obligation to hold such Information confidential to the same
extent as is applicable to the parties and in respect of whose failure to comply
with such obligations, VPG or Vishay, as the case may be, will be responsible,
(ii) if such party or any of the members of such party’s respective Group is
compelled to disclose any such Information by judicial or administrative process
or, in the opinion of independent legal counsel, by other requirements of
Applicable Law, (iii) if any such Information is or becomes generally available
to the public other than as a result of a disclosure in violation of this
Agreement or (iv) if such Information was or becomes available to either VPG or
Vishay or any member of their respective Group on a non-confidential basis and
from a source (other than a party to this Agreement or any Affiliate, director,
officer, employee, agent, consultant, advisor and other representative of such
party) that is not known after actual inquiry to be bound by a confidentiality
obligation. Notwithstanding the foregoing, in the event that any demand or
request for disclosure of Confidential Information is made pursuant to clause
(ii) above, Vishay or VPG, as the case may be, shall promptly notify the other
of the existence of such request or demand and shall provide the other a
reasonable opportunity to seek an appropriate confidentiality agreement,
protective order or other remedy at the reasonable cost and expense of the
disclosing party and which both parties will cooperate in obtaining. In the
event that such appropriate protective order or other remedy is not obtained,
the party whose Confidential Information is required to be disclosed shall, or
shall cause to be, furnished, only that portion of the Confidential Information
that is legally required to be disclosed.
- 33 -
(b)
Notwithstanding anything herein to the contrary, Vishay and the members
of its Group, on the one hand, and VPG and the members of its Group, on the
other hand, shall be deemed to have satisfied their obligations hereunder with
respect to Confidential Information if they exercise the same degree of care
(but no less than a reasonable degree of care) as they take to preserve
confidentiality for their own similar Information.
(c)
Nothing in this Agreement shall be construed to limit or prohibit either
party from independently creating or developing (or having created or developed
for it), or from acquiring from third parties, any Information similar to or
competitive with the Information contemplated by or embodied in the other
party’s Confidential Information,
provided
that in connection with such creation,
development or acquisition such party does not violate any of its obligations
under this Agreement, any Ancillary Agreement or any other agreement with the
other party. Notwithstanding the foregoing, neither party shall, nor shall it
assist others to, disassemble, decompile, reverse engineer, or otherwise attempt
to recreate, the other party’s Confidential Information.
Section 4.6
Privileged Matters
.
(a)
Vishay and VPG agree that their respective rights and obligations to
maintain, preserve, assert or waive any or all privileges belonging to either
party or the respective members of their respective Group with respect to the
Vishay Business or the MGF Business, including but not limited to the
attorney-client, work product privileges or any other applicable privileges
(individually, a “
Privilege
”), shall be governed by the provisions of
this
Section 4.6
. With respect to Privileged Information of
Vishay, Vishay shall have sole authority in perpetuity to determine whether to
assert or waive any or all Privileges, and VPG shall take no action (nor permit
any member of its Group to take action) without the prior written consent of
Vishay that could result in any waiver of any Privilege that could be asserted
by Vishay or any member of its Group under Applicable Law and this Agreement.
With respect to Privileged Information of VPG, VPG shall have sole authority in
perpetuity to determine whether to assert or waive any or all Privileges, and
Vishay shall take no action (nor permit any member of its Group to take action)
without the prior written consent of VPG that could result in any waiver of any
Privilege that could be asserted by VPG or any member of its Group under
Applicable Law and this Agreement. The rights and obligations created by this
Section 4.6
shall apply to all Information (“
Privileged Information
”) as to which Vishay or VPG or their
respective Groups would be entitled to assert or have asserted a Privilege
without regard to the effect, if any, of the Separation and the Distribution.
Privileged Information of Vishay and its Group includes but is not limited to
(w) any and all Information satisfying the criteria of the preceding sentence
regarding the Vishay Business and its Group (other than Information satisfying
the criteria of the preceding sentence relating to the MGF Business
(“
VPG Information
”)), whether or not such Information (other
than VPG Information) is in the possession of VPG or any member of its Group;
and (x) all communications subject to a Privilege between counsel for Vishay
(including any Person who, at the time of the communication, was an employee of
Vishay or its Group in the capacity of in-house counsel, regardless of whether
such employee is or becomes an employee of VPG or any member of its Group) and
any Person who, at the time of the communication, was an employee of Vishay,
regardless of whether such employee is or becomes an employee of VPG or any
member of its Group. Privileged Information of VPG and its Group includes but is
not limited to (x) any and all VPG Information, whether or not it is in the
possession of Vishay or any member of its Group; and (y) all communications
subject to a Privilege occurring after the Distribution between counsel for the
MGF Business (including in-house counsel and former in-house counsel who are
employees of Vishay) and any Person who, at the time of the communication, was
an employee of VPG, any member of its Group or the MGF Business regardless of
whether such employee was, is or becomes an employee of Vishay or any member of
its Group.
- 34 -
(b)
Upon receipt by Vishay or VPG, or any of the members of the respective
Groups, as the case may be, of any subpoena, discovery or other request from any
third party that actually or arguably calls for the production or disclosure of
Privileged Information of the other or if Vishay or VPG, or any of members of
their respective Groups, as the case may be, obtains knowledge that any current
or former employee of Vishay or VPG, as the case may be, receives any subpoena,
discovery or other request from any third party that actually or arguably calls
for the production or disclosure of Privileged Information of the other, Vishay
or VPG, as the case may be, shall promptly notify the other of the existence of
the request and shall provide the other a reasonable opportunity to review the
Information and to assert any rights it may have under this
Section 4.6
or otherwise to prevent the production or
disclosure of Privileged Information. Vishay or VPG, as the case may be, will
not, and will cause the members of their respective Groups to not, produce or
disclose to any third party any of the other’s Privileged Information under this
Section 4.6
unless (i) the non-disclosing party has
provided its express written consent to such production or disclosure or (ii) a
court of competent jurisdiction has entered an order not subject to
interlocutory appeal or review (or for which the period for appeal or review has
lapsed) finding that the Information is not entitled to protection from
disclosure under any applicable privilege, doctrine or rule, in which case, such
Information shall be subject to
Section
4.5
.
(c)
Vishay’s transfer of books and records pertaining to the MGF Business and
other Information to VPG, Vishay’s agreement to permit VPG to obtain Information
existing prior to the Distribution, VPG’s transfer of books and records
pertaining to the Vishay Business, if any, and other Information to Vishay and
VPG’s agreement to permit Vishay to obtain Information existing prior to the
Distribution are made in reliance on Vishay’s and VPG’s respective agreements,
as set forth in
Section 4.5
and this
Section 4.6
, to maintain the confidentiality of such
Information and to take the steps provided herein for the preservation of all
Privileges that may belong to or be asserted by Vishay or VPG, as the case may
be. The access to Information, witnesses and individuals being granted pursuant
to
Sections 4.3
and
4.4
and the disclosure to VPG and Vishay of
Privileged Information relating to the MGF Business or the Vishay Business
pursuant to this Agreement in connection with the Separation and Distribution
shall not be asserted by Vishay or VPG to constitute, or otherwise deemed, a
waiver of any Privilege that has been or may be asserted under this
Section 4.6
or otherwise. Nothing in this Agreement shall
operate to reduce, minimize or condition the rights granted to Vishay and VPG
in, or the obligations imposed upon Vishay and VPG by, this
Section 4.6
.
- 35 -
Section 4.7
Cooperation with Respect to
Know-how
. Neither party
shall knowingly utilize or incorporate into its products or services the
confidential know-how or other proprietary technical information of the other
party without the express, prior written consent of the other party. The parties
agree that if a party reasonably believes that the other party has or may have
an interest or expectation of ownership in know-how or other technical
information that has come to the attention of the personnel of the first party
and that the first party proposes to utilize in its products, services or other
aspects of its business, the first party shall bring this to the attention of
the other party. Thereafter, the parties shall discuss in good faith the use of
such know-how or other technical information to determine whether such
information is the exclusive property of one of the parties or if it is
information in which both parties have an interest or expectation of ownership.
If it is determined that the know-how or other technical information is the
exclusive property of one of the parties, the other party may request a license
to utilize such information for development of or incorporation into its
products and services or in other aspects of its business. In such case, the
other party shall in good faith consider the request for a license, including
the financial arrangements and other terms that the first party proposes for
such a license. Nothing, however, shall require a party to enter into such a
license or to act against its commercial interests as determined by such party.
For the purpose of the discussions contemplated by this
Section 4.7
, each party shall at all times designate by
notice to the other party one or more individuals at a level equal to or above
divisional P&L leader who shall be available to engage in such discussions
at the request of the other party.
Section 4.8
VPG Exchangeable Notes and VPG Warrants;
Registration
. VPG agrees
to take the following actions:
(a)
Issue notes exchangeable for shares of VPG common stock (the
“
VPG
Exchangeable Notes
”) to such Persons, in such amounts, upon such
terms and at such time as required by that certain Put and Call Agreement dated
as of December 13, 2002, by and between Vishay and each of the holders of the
Notes due December 31, 2102 issued by Vishay.
(b)
Issue warrants to acquire VPG common stock (the “
VPG Warrants
”) to such Persons, in such amounts, upon such
terms and at such time as required by that certain Warrant Agreement dated as of
December 13, 2002, by and between Vishay and American Stock Transfer and Trust
Company.
(c)
Register the shares of VPG common stock issuable upon (i) exchange of the
VPG Exchangeable Notes or (ii) exercise of the VPG Warrants, on a resale
registration statement on such terms and within such time periods as required by
that certain Securities Investment and Registration Rights Agreement dated as of
December 13, 2002, by and among Vishay, Phoenix Acquisition Company S.a.r.l.,
Phoenix Bermuda, LP and certain other persons as set forth therein.
- 36 -
Section 4.9
Tax Matters
. All matters relating to Taxes shall be
governed exclusively by the Tax Matters Agreement, except as may be expressly
stated herein or therein. In the event of any inconsistency with respect to such
matters between the Tax Matters Agreement and this Agreement or any other
Ancillary Agreement, the Tax Matters Agreement shall govern to the extent of the
inconsistency.
Section 4.10
Employee Matters
. All matters relating to or arising out of
any employee benefit, compensation or welfare arrangement in respect of any
present and former employee of the Vishay Group or the VPG Group shall be
governed by the Employee Matters Agreement. In the event of any inconsistency
with respect to such matters between the Employee Matters Agreement and this
Agreement or any Ancillary Agreement, the Employee Matters Agreement shall
govern to the extent of the inconsistency; provided, however, that
notwithstanding anything to the contrary herein or in the Employee Matters
Agreement, for the period from and after the Distribution Date, Vishay shall
have no responsibility for the compensation or benefits of any of the executives
or other employees of VPG, including those who were employed by Vishay prior to
the Separation.
Section 4.11
Intellectual Property
. All matters relating to the ownership and
right to use Intellectual Property shall be governed exclusively by the License
Agreements, as applicable, except as may be expressly stated herein or therein.
In the event of any inconsistency with respect to such matters between a
particular License Agreement and this Agreement or any Ancillary Agreement, such
particular License Agreement shall govern to the extent of the inconsistency.
Section 4.12
Services Support
. All matters relating to the provision of
support and other services by the Vishay Group to the VPG Group after the
Effective Time, covered by the Transition Services Agreement, shall be governed
exclusively by the Transition Services Agreement, except as may be expressly
stated herein or therein. In the event of any inconsistency with respect to such
matters between the Transition Services Agreement and this Agreement or any
other Ancillary Agreement, the Transition Services Agreement shall govern to the
extent of the inconsistency.
Section 4.13
Real Property
. All matters relating to real property to be
leased, subleased, occupied, or shared either Group after the Effective Time
shall be governed by the Lease Agreements, except as may be expressly stated
herein or therein. In the event of any inconsistency with respect to such
matters between a particular Lease Agreements and this Agreement or any
Ancillary Agreement, such particular Lease Agreement shall govern to the extent
of the inconsistency.
- 37 -
ARTICLE V
SURVIVAL AND
INDEMNIFICATION
Section 5.1
Mutual Release
.
(a)
Effective as of the Distribution Date and except as otherwise
specifically set forth in the Ancillary Agreements, each of Vishay, on behalf of
itself and each member of the Vishay Group, on the one hand, and VPG, on behalf
of itself and each member of the VPG Group, on the other hand, hereby
unequivocally, unconditionally and irrevocably releases and forever discharges
the other party and the members of such party’s Group, and its and their
respective current and former directors, officers, managers or other Persons
acting in a similar capacity, agents, record and beneficial security holders
(including trustees and beneficiaries of trusts holding such securities),
advisors, accountants, attorneys and other representatives (in each case, in
their respective capacities as such) and their respective heirs, executors,
administrators, successors and assigns, of and from, all Liabilities whatsoever
of every name and nature, whether at law or in equity (including any right of
contribution), whether arising under any Contract, by operation of law or
otherwise, existing or arising from any acts or events occurring or failing to
occur or alleged to have occurred or to have failed to occur or any conditions
existing or alleged to have existed on or before the Distribution Date, whether
or not known on the Distribution Date, whether fixed or contingent, and whether
or not concealed or hidden, including in connection with the transactions and
all other activities to implement the Separation and the Distributions.
(b)
Nothing contained in
Section 5.1(a)
shall impair any right of any party (or any
of the respective members of such party’s Group) to enforce this Agreement, any
Ancillary Agreement or any other Contracts that are contemplated by
Section 2.11(b)
or the applicable
Schedules thereto, nor shall anything contained in those sections be interpreted
as terminating as of the Distribution Date any rights under any such Contracts.
For purposes of clarification, nothing contained in
Section 5.1(a)
shall release any Person from:
(i)
any Liability provided in or resulting from
any agreement among any member of the Vishay Group or the VPG Group that is
specified in
Section
2.11(b)
or the applicable Schedules thereto as not to
terminate as of the Distribution Date, or any other Liability specified in such
Section 2.11(b)
as not to terminate as of the Distribution
Date;
(ii)
any Liability, contingent or otherwise,
assumed, transferred, assigned or allocated to the Group of which such Person is
a member in accordance with, or any other Liability of any member of any Group
under, this Agreement or any Ancillary Agreement;
(iii)
any Liability for the sale, lease,
construction or receipt of goods, property or services purchased, obtained or
used in the ordinary course of business by a member of one Group from a member
of any other Group prior to the Distribution Date;
- 38 -
(iv)
any Liability for unpaid amounts for products
or services or refunds owing on products or services due on a value-received
basis for work done by a member of one Group at the request or on behalf of a
member of another Group;
(v)
any Liability that the parties may have with
respect to indemnification or contribution pursuant to this Agreement for claims
brought against the parties by third Persons, which Liability shall be governed
by the provisions of this
Article V
and
Article VI
and, if applicable, the appropriate
provisions of the Ancillary Agreements; or
(vi)
any Liability the release of which would
result in the release of any Person other than a Person released pursuant to
this
Section 5.1
.
In
addition, nothing contained in
Section 5.1(a)
shall release any party from honoring its
existing obligations to indemnify any director, officer or employee of either
Group who was a director, officer or employee of such party on or prior to the
Distribution Date, to the extent that such director, officer or employee becomes
a named defendant in any litigation involving such party and was entitled to
such indemnification pursuant to then existing obligations.
(c)
Neither Vishay nor VPG shall make, nor shall either permit any other
member of its Group to make, any claim or demand, or commence any Action
asserting any claim or demand, including any claim of contribution or any
indemnification, against the other or any member of the other Group or any other
Person released pursuant to
Section 5.1(a)
, with respect to any Liabilities released
pursuant to
Section 5.1(a)
.
(d)
It is the intent of Vishay and VPG by virtue of the provisions of this
Section 5.1
to provide for a full and complete release
and discharge of all Liabilities existing or arising from all acts and events
occurring or failing to occur or alleged to have occurred or to have failed to
occur and all conditions existing or alleged to have existed on or before the
Distribution Date, between or among Vishay or any member of the Vishay Group, on
the one hand, and VPG or any member of the VPG Group, on the other hand
(including any contractual agreements or arrangements existing or alleged to
exist between or among any such members on or before the Distribution Date),
except as expressly set forth in
Section 5.1(b)
. At any time, at the
request of any other party, each party shall cause each member of its respective
Group to execute and deliver releases reflecting the provisions hereof.
Section 5.2
Indemnification by Vishay
. Vishay shall indemnify, defend and hold
harmless VPG, each member of the VPG Group and each of their respective current
and former directors, officers and employees, and each of the heirs, executors,
successors and assigns of any of the foregoing (collectively, the “
VPG Indemnified Parties
”), from and against any and all Liabilities
of VPG Indemnified Parties relating to, arising out of or resulting from any of
the following items (without duplication):
(a)
the failure of Vishay or any other member of the Vishay Group or any
other Person to pay, perform or otherwise promptly discharge any Liabilities of
the Vishay Group other than the Assumed Liabilities whether prior to or after
the date hereof;
- 39 -
(b)
the conduct of the Vishay Business;
(c)
any Liability of the Vishay Group (including the Excluded Assumed
Liabilities) other than the Assumed Liabilities;
(d)
any Environmental Liabilities under
Section 2.5(b)(v)
;
(e)
any breach of, or failure to perform or comply with, any covenant,
undertaking or obligation of, this Agreement or any Ancillary Agreements, by
Vishay or any member of the Vishay Group; and
(f)
any untrue statement or alleged untrue statement of material fact or
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent relating to Vishay Group contained in the Form 10 Registration
Statement, the Information Statement or any other registration statements filed
by VPG or Vishay in connection with the Distribution.
Section 5.3
Indemnification by VPG
. VPG shall indemnify defend and hold harmless
Vishay, each member of the Vishay Group and each of their respective current and
former directors, officers and employees, and each of the heirs, executors,
successors and assigns of any of the foregoing (collectively, the “
Vishay Indemnified Parties
”) from and against any and all Liabilities of
the Vishay Indemnified Parties relating to, arising out of or resulting from any
of the following items (without duplication):
(a)
the failure of VPG or any other member of the VPG Group or any other
Person to pay, perform or otherwise promptly discharge any Assumed Liabilities
in accordance with their respective terms, whether prior to or after the date
hereof;
(b)
the conduct of the MGF Business;
(c)
any Assumed Liability;
(d)
any Environmental Liabilities under
Section 2.5(a)(v)
;
(e)
any breach of, or failure to perform or comply with, any covenant,
undertaking or obligation of, this Agreement or any Ancillary Agreements, by VPG
or any member of the VPG Group; and
(f)
any untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent relating to the VPG Group contained in the Form 10 Registration
Statement, the Information Statement or any other registration statements filed
by VPG in connection with the Distribution.
Section 5.4
Tax Indemnification
. Notwithstanding anything herein to the
contrary, indemnification for matters subject to the Tax Matters Agreement shall
be governed by the terms, provisions and procedures of the Tax Matters Agreement
and not by this
Article V
.
- 40 -
Section 5.5
Indemnification Obligations Net of Insurance
Proceeds and Other
Amounts
.
(a)
The parties intend that any Liability subject to indemnification or
reimbursement pursuant to this
Article V
or
Article VI
will be net of Insurance Proceeds that
actually reduce the amount of the Liability. Accordingly, the amount which any
party (an “
Indemnifying Party
”) is required to pay to any Person entitled
to indemnification hereunder (an “
Indemnified Party
”) will be reduced by any Insurance Proceeds
theretofore actually received, realized or recovered by or on behalf of the
Indemnified Party in reduction of the related Liability. If an Indemnified Party
receives a payment (an “
Indemnity Payment
”) required by this Agreement from an
Indemnifying Party in respect of any Liability and subsequently receives
Insurance Proceeds that actually reduce the amount of the Liability, then the
Indemnified Party will pay to the Indemnifying Party an amount equal to the
excess of the Indemnity Payment received over the amount of the Indemnity
Payment that would have been due if the Insurance Proceeds had been received,
realized or recovered before the Indemnity Payment was made.
(b)
In the case of any Shared Contingent Liability, any Insurance Proceeds
actually received, realized or recovered by any party in respect of the Shared
Contingent Liability will be shared among the parties in such manner as may be
necessary so that the obligations of the parties for such Shared Contingent
Liability, net of such Insurance Proceeds, will remain in proportion to their
respective Shared Percentages, regardless of which party or parties may actually
receive, realize or recover such Insurance Proceeds.
(c)
An insurer who would otherwise be obligated to pay any claim shall not be
relieved of the responsibility with respect thereto or, solely by virtue of the
indemnification provisions hereof, have any subrogation rights with respect
thereto, it being expressly understood and agreed that no insurer or any other
third party shall be entitled to a “wind-fall” (
i.e.
, a benefit they would not be entitled to
receive in the absence of the indemnification provisions) by virtue of the
indemnification provisions hereof. Nothing contained in this Agreement or in any
Ancillary Agreement shall obligate any member of any Group to seek to collect or
recover any Insurance Proceeds;
provided
, that such member is capable of fulfilling
and meeting any of its obligations as an Indemnifying Party under this Agreement
(including, but not limited to the ability to make a full payment on any
indemnification obligation).
Section 5.6
Procedures for Indemnification of Third Party
Claims
.
(a)
If an Indemnified Party shall receive notice or otherwise learn of the
assertion by a Person (including any Governmental Authority) who is not a member
of the Vishay Group or the VPG Group of any claim or of the commencement by any
such Person of any Action (collectively, a “
Third Party Claim
”) with respect to which an Indemnifying Party
may be obligated to provide indemnification to such Indemnified Party pursuant
to
Section 5.2
or
Section 5.3
or any other section of this Agreement or any
Ancillary Agreement, such Indemnified Party shall give such Indemnifying Party
written notice thereof within twenty (20) days after becoming aware of such
Third Party Claim. Any such notice shall describe the Third Party Claim in
reasonable detail. If any Person shall receive notice or otherwise learn of the
assertion of a Third Party Claim which may reasonably be determined to be a
Shared Contingent Liability, such Person shall give the other party to this
Agreement written notice thereof within twenty (20) days after becoming aware of
such Third Party Claim. Any such notice shall describe the Third Party Claim in
reasonable detail. Notwithstanding the foregoing, the failure of any Indemnified
Party or other Person to give notice as provided in this
Section 5.6(a)
shall not relieve the related Indemnifying
Party of its obligations under this
Article V
, except to the extent that such Indemnifying
Party is actually prejudiced by such failure to give notice.
- 41 -
(b)
If the Indemnifying Party receiving any notice pursuant to
Section 5.6(a)
or the Indemnified Party believes that the
Third Party Claim is or may be a Shared Contingent Liability, such party may
make a Determination Request with respect thereto. Vishay shall be entitled (but
not obligated) to assume the defense of such Third Party Claim as if it were the
Indemnifying Party hereunder until a determination on whether such Third Party
Claim is a Shared Contingent Liability. In any such event, Vishay shall be
entitled to reimbursement of all the costs and expenses of such defense once a
final determination or acknowledgment is made as to the status of the Third
Party Claim;
provided
, that, if such Third Party Claim is
determined to be a Shared Contingent Liability, such costs and expenses shall be
shared as provided in
Section
5.6(c)
. If it is determined by the parties or the
Contingent Claim Committee that the Third Party Claim is a Shared Contingent
Liability, the Indemnifying Party determined to have a majority of the Shared
Percentage of such Shared Contingent Liability shall assume the defense of such
Third Party Claim;
provided
, that such Indemnifying Party is solvent. If
the Indemnifying Party with a majority of the Shared Contingent Liability is
insolvent, the Indemnifying Party with less than a majority of the Shared
Contingent Liability shall be entitled (but not obligated) to assume the defense
of such Third Party Claim.
(c)
The costs and expenses of assuming the defense of any Third Party Claim
that is a Shared Contingent Liability (subject to
Section 5.6(b)
), and/or seeking to settle or compromise
(subject to
Section 5.6(g)
) shall be included in the calculation of the
amount of the applicable Shared Contingent Liability in determining the
reimbursement obligations of the other parties with respect thereto pursuant to
Section 6.3
. Any Indemnified Party in respect of a Shared
Contingent Liability shall have the right to employ separate counsel and to
participate in (but not control) the defense, compromise, or settlement thereof,
but all fees and expenses of such counsel shall be the expense of such
Indemnified Party.
(d)
Other than in the case of a Shared Contingent Liability, an Indemnifying
Party may elect to defend (and, unless the Indemnifying Party has specified any
reservations or exceptions, to seek to settle or compromise), at such
Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel,
any Third Party Claim. Within thirty (30) days after the receipt of notice from
an Indemnified Party in accordance with
Section 5.6(a)
(or sooner, if the nature of such Third Party
Claim so requires), the Indemnifying Party shall notify the Indemnified Party of
its election whether the Indemnifying Party will assume responsibility for
defending such Third Party Claim, which election shall specify any reservations
or exceptions. After notice from an Indemnifying Party to an Indemnified Party
of its election to assume the defense of a Third Party Claim, such Indemnified
Party shall have the right to employ separate counsel and to participate in (but
not control) the defense, compromise, or settlement thereof, but the fees and
expenses of such counsel shall be the expense of such Indemnified Party.
(e)
Other than in the case of a Shared Contingent Liability, if an
Indemnifying Party elects not to assume responsibility for defending a Third
Party Claim, or fails to notify an Indemnified Party of its election as provided
in
Section 5.6(d)
, such Indemnified Party may defend such Third
Party Claim at the cost and expense of the Indemnifying Party.
- 42 -
(f)
Unless the Indemnifying Party has failed to assume the defense of the
Third Party Claim in accordance with the terms of this Agreement, no Indemnified
Party may settle or compromise any Third Party Claim that is not a Shared
Contingent Liability without the consent of the Indemnifying Party. No
Indemnified Party may settle or compromise any Third Party Claim that is a
Shared Contingent Liability without the consent of the Indemnifying Party that
is entitled to or has assumed the defense of such Third Party Claim.
(g)
In the case of a Third Party Claim that is not a Shared Contingent
Liability, no Indemnifying Party shall consent to entry of any judgment or enter
into any settlement of the Third Party Claim without the consent of the
Indemnified Party if the effect thereof is to permit any injunction, declaratory
judgment, other order or other nonmonetary relief to be entered, directly or
indirectly against any Indemnified Party. In the case of a Third Party Claim
that is a Shared Contingent Liability, the Indemnifying Party that has assumed
the defense of such Third Party Claim shall not consent to entry of any judgment
or enter into any settlement of the Third Party Claim without the consent of the
Indemnified Party if the effect thereof is to permit any injunction, declaratory
judgment, other order or other nonmonetary relief to be entered, directly or
indirectly, against any Indemnified Party;
provided
,
however
, the Indemnifying Party shall not need to
obtain the consent of the Indemnified Party if the Indemnified Party is
insolvent.
Section 5.7
Procedures for Indemnification of Direct
Claims
. Any claim for
indemnification made directly by the Indemnified Party against the Indemnifying
Party that does not result from a Third Party Claim shall be asserted by written
notice from the Indemnified Party to the Indemnifying Party specifically
claiming indemnification hereunder. Such
Indemnifying Party shall have a period of forty-five (45) days after the
receipt of such notice within which to respond thereto. If such Indemnifying
Party does not respond within such forty-five (45) day period, such Indemnifying
Party shall be deemed to have accepted responsibility to make payment and shall
have no further right to contest the validity of such claim. If such
Indemnifying Party does respond within such forty-five (45) day period and
rejects such claim in whole or in part, such Indemnified Party shall be free to
pursue resolution as provided in
Article
VIII
.
Section 5.8
Payments
. The Indemnifying Party shall pay all amounts
payable pursuant to this
Article V
by wire transfer of immediately available
funds, promptly following receipt from an Indemnified Party of a statement
therefor, together with all accompanying reasonably detailed backup
documentation, for a Liability that is the subject of indemnification hereunder,
unless the Indemnifying Party in good faith disputes the Liability, in which
event it shall so notify the Indemnified Party. In any event, the Indemnifying
Party shall pay to the Indemnified Party, by wire transfer of immediately
available funds, the amount of any Liability for which it is liable hereunder no
later than ten (10) Business Days following any final determination of such
Liability and the Indemnifying Party’s liability therefor. A “
final
determination
” shall exist when (a) the parties to the
dispute have reached an agreement in writing, (b) a court of competent
jurisdiction shall have entered a final and non-appealable order
- 43 -
or judgment or (c) an
arbitration or like panel shall have rendered a final non-appealable
determination with respect to disputes the parties have agreed to submit
thereto.
Section 5.9
Contribution
. If the indemnification provided for in this
Article V
shall, for any reason, be unavailable or
insufficient to hold harmless an Indemnified Party hereunder in respect of any
Liability, then the Indemnifying Party shall, in lieu of indemnifying such
Indemnified Party, contribute to the amount paid or payable by such Indemnified
Party as a result of such Liability, in such proportion as shall be sufficient
to place the Indemnified Party in the same position as if such Indemnified Party
were indemnified hereunder, the parties intending that their respective
contributions hereunder be as close as possible to the indemnification under
Section 5.2
and
Section 5.3
. If the contribution provided for in the
previous sentence shall, for any reason, be unavailable or insufficient to put
the Indemnified Party in the same position as if it were indemnified under
Section 5.2
or
Section 5.3
, as the case may be, then the Indemnifying
Party shall contribute to the amount paid or payable by such Indemnified Party
as a result of such Liability, in such proportion as shall be appropriate to
reflect the relative benefits received by and the relative fault of the
Indemnifying Party on the one hand and the Indemnified Party on the other hand
with respect to the matter giving rise to the Liability.
Section 5.10
Remedies Cumulative
. The rights and remedies provided in this
Article V
shall be cumulative and, subject to the
provisions of
Article VIII
, shall not preclude assertion by any
Indemnified Party of any other rights or the seeking of any and all other
remedies against any Indemnifying Party.
Section 5.11
Survival of Indemnities
. The rights and obligations of each of Vishay
and VPG and their respective Indemnified Parties under this
Article V
shall survive the distribution, sale or other
transfer by any party of any Assets or the delegation or assignment by it of any
Liabilities.
ARTICLE VI
CONTINGENT GAINS AND CONTINGENT LIABILITIES
Section 6.1
Contingent Gains
.
(a)
Each of Vishay and VPG
shall have the sole and exclusive right to any benefit received with respect to
any Exclusive Vishay Contingent Gain and any Exclusive VPG Contingent Gain,
respectively. Each of Vishay and VPG shall have the sole and exclusive authority
to commence, prosecute, settle, manage, control, conduct, waive, forego,
release, discharge, forgive and otherwise determine all matters whatsoever with
respect to any such Exclusive Vishay Contingent Gain or Exclusive VPG Contingent
Gain, as the case may be.
- 44 -
(b)
Any benefit that may be
received from any Shared Contingent Gain shall be shared between Vishay and VPG
in proportion to the Shared Vishay Percentage and the Shared VPG Percentage,
respectively, and shall be paid in accordance with
Section 6.4
. If it is determined by the parties or the
Contingent Claim Committee that a Contingent Gain is a Shared Contingent Gain,
the party determined to have a majority of the Shared Percentage of such Shared
Contingent Gain shall have the sole and exclusive authority to commence,
prosecute, settle, manage, control, conduct, waive, forgo, release, discharge,
forgive and otherwise determine all matters whatsoever with respect to such
Shared Contingent Gain. The party with a minority interest in such Shared
Contingent Gain shall not take, or permit any member of its Group to take, any
action (including commencing any Action) that would interfere with such rights
and powers of the other party. The party with a majority of the Shared
Percentage of such Shared Contingent Gain shall use its reasonable best efforts
to notify the other party in the event that it commences an Action with respect
to a Shared Contingent Gain;
provided
, that the failure to provide such notice
shall not give rise to any rights on the part of the other party against such
party or affect any other provision of this
Section 6.1
. The party with a majority of the Shared
Percentage of such Shared Contingent Gain may elect not to pursue any Shared
Contingent Gain for any reason whatsoever (including a different assessment of
the merits of any Action, claim or right than the other party or any business
reasons that are in the best interests of such party or a member of such party’s
Group, without regard to the best interests of any member of the other Group)
and no member of the Group with a majority interest in such Shared Contingent
Gain shall have any liability to any Person (including any member of the other
Group) as a result of any such determination.
(c)
In the event of any
dispute as to whether any claim or right is a Contingent Gain or whether any
Contingent Gain is a Shared Contingent Gain, an Exclusive Vishay Contingent Gain
or an Exclusive VPG Contingent Gain, Vishay may, but shall not be obligated to,
commence prosecution or other assertion of such claim or right pending
resolution of such dispute. In the event that Vishay commences any such
prosecution or assertion and, upon resolution of the dispute, it is determined
hereunder that VPG has the exclusive right to such claim or right, Vishay shall,
promptly upon the request of VPG, discontinue the prosecution or assertion of
such right or claim and transfer the control thereof to VPG. In such event, VPG
will reimburse Vishay for all costs and expenses, reasonably incurred prior to
resolution of such dispute in the prosecution or assertion of such claim or
right.
Section 6.2
Exclusive Contingent
Liabilities
. Each
Exclusive Contingent Liability shall constitute a Liability for which
indemnification is provided by Vishay or VPG, as the case may be, pursuant to
Article V
and shall be subject to the procedures set
forth in
Article V
with respect thereto.
Section 6.3
Shared Contingent
Liabilities
.
(a)
As set forth in
Section 5.6(c)
and subject to
Section 5.6(g)
, any Third Party Claim that is a Shared
Contingent Liability, and the costs and expenses thereof, shall be included in
the calculation of the amount of the applicable Shared Contingent Liability in
determining the reimbursement obligations of the other parties with respect
thereto pursuant to this
Section 6.3
.
(b)
Each of Vishay and VPG
shall be responsible for its Shared Percentage of any Shared Contingent
Liability. It shall not be a defense to any obligation by any party to pay any
amount in respect of any Shared Contingent Liability that such party was not
consulted in the defense thereof, that such party’s views or opinions as to the
conduct of such defense were not accepted or adopted, that such party does not
approve of the quality or manner of the defense thereof or that such Shared
Contingent Liability was incurred by reason of a settlement rather
than by a judgment or other determination of
liability (even if, subject to
Section 5.6(g)
, such settlement was effected without the
consent or over the objection of such party).
- 45 -
Section 6.4
Payments
. Any amount owed in respect of (i) any Shared
Contingent Liabilities (including reimbursement for the cost or expense of
defense of any Third Party Claim that is a Shared Contingent Liability), or (ii)
any Shared Contingent Gains (including reimbursement for the costs or expenses
to commence, prosecute or settle matters with respect to a Shared Contingent
Gain), pursuant to this
Article VI
shall be remitted promptly after the party
entitled to such amount provides an invoice (including reasonable supporting
Information with respect thereto) to the party owing such amount.
Section 6.5
Procedures to Determine Status of Contingent
Liability or Contingent
Gain
.
(a)
With respect to any other
matters not set forth on Schedules to this Agreement (regardless of whether such
matters are currently pending but not set forth on such Schedules or are
asserted or filed hereafter), Vishay and VPG will form the Contingent Claim
Committee for (x) the purpose of resolving whether:
(i)
any claim or right is a Contingent Gain;
(ii)
any Contingent Gain is a
Shared Contingent Gain, an Exclusive Vishay Contingent Gain or an Exclusive VPG
Contingent Gain;
(iii)
any Liability is a Contingent Liability; or
(iv)
any Contingent Liability
is a Shared Contingent Liability, an Exclusive Vishay Contingent Liability or an
Exclusive VPG Contingent Liability.
and (y) for the purpose
of determining the Shared VPG Percentage and the Shared Vishay Percentage in
connection with Shared Contingent Gains and Shared Contingent
Liabilities.
(b)
(i) The parties shall
refer any Shared Contingent Gain or Shared Contingent Liability to the
Contingent Claim Committee to determine the Shared VPG Percentage and the Shared
Vishay Percentage in connection with such Shared Contingent Gain or Shared
Contingent Liability and (ii) any of the parties may refer any potential
Contingent Gains or Contingent Liabilities to the Contingent Claim Committee for
resolution as described in
Section 6.5(a)
(any such request described in clause (i) or
clause (ii), a “
Determination
Request
”). If the Contingent Claim Committee reaches
a determination (which shall be made within thirty (30) days of such referral on
a matter submitted to the Contingent Claim Committee by any of the parties),
then that determination shall be binding on all of the parties and their
respective successors and assigns. In the event that the Contingent Claim
Committee cannot reach a determination as to (i) the appropriate allocation of
Contingent Gains or Contingent Liabilities between the parties in connection
with Shared Contingent Gains or Shared Contingent Liabilities, respectively, or
(ii) as to the nature or status of any such Contingent Liabilities or Contingent
Gains, within thirty (30) days after such referral, then the issue will be
submitted to the respective Senior Party Representative of Vishay and VPG for
determination. If the Senior
Party Representatives cannot reach a determination, then the procedures
set forth in
Article VIII
of this Agreement shall govern.
- 46 -
Section 6.6
Certain Case Allocation
Matters
. The parties agree
that if any Action not set forth on Schedules to this Agreement involves
separate and distinct claims that, if not joined in a single Action, would
constitute separate Exclusive Contingent Liabilities of two or more parties,
they will use their reasonable best efforts to segregate such separate and
distinct claims so that the Liabilities associated with each such claim
(including all costs and expenses) shall be treated as Exclusive Contingent
Liabilities of the appropriate party and so that each party shall have the
rights and obligations with respect to each such claim (including pursuant to
Article V
) as would have been applicable had such
claims been commenced as separate Actions.
Notwithstanding the foregoing provisions, this
Section 6.6
shall not apply to any separate and distinct
claim that is de minimis or frivolous in nature.
ARTICLE VII
INSURANCE
Section 7.1
Insurance Matters Generally
.
(a)
VPG does hereby, for
itself and each other member of the VPG Group, agree that no member of the
Vishay Group or any Vishay Indemnified Party shall have any liability whatsoever
as a result of the insurance policies and practices of Vishay and its Affiliates
as in effect at any time prior to the Effective Time, including as a result of
the level or scope of any such insurance, the creditworthiness of any insurance
carrier, the terms and conditions of any policy, the adequacy or timeliness of
any notice to any insurance carrier with respect to any claim or potential
claim, the bankruptcy or insolvency of any insurance carrier or otherwise.
(b)
The Separated Assets
shall include any and all Insurance Policies which are owned or maintained by or
on behalf of VPG or any member of the VPG Group or which are owned or maintained
by or on behalf of Vishay or any member of the Vishay Group and which relate
exclusively to the MGF Business and which are by their terms assignable to VPG
or any member of the VPG Group. All other Insurance Policies shall be subject to
the provisions of
Section 7.2
.
Section 7.2
Shared Insurance Policies
.
(a)
Vishay agrees to use its
reasonable best efforts to cause the interest and rights of VPG and the other
members of the VPG Group as of the Effective Time as insureds, additional named
insureds or beneficiaries or in any other capacity under occurrence-based
Insurance Policies of Vishay or any other member of the Vishay Group in respect
of periods prior to the Effective Time (and under claims-made policies and
programs to the extent a claim has been submitted prior to the Effective Time)
to survive the Effective Time for the period for which such interests and rights
would have survived without regard to the transactions contemplated hereby to
the extent permitted by such Insurance Policies; provided however that Vishay
shall be required to maintain tail or extended coverage for the benefit of the
VPG Group with respect to certain Insurance Policies in effect prior to the
Effective Time as described in
Schedule 1.4
and
Schedule 2.5(b)(v)
. For the avoidance of doubt, except as
otherwise provided in
Schedule 1.4
or
Schedule 2.5(b)(v)
, Vishay shall not be required to maintain any
tail or extended coverage for the benefit of the VPG Group with respect to
Insurance Policies in effect prior to the Effective Time.
-
47 -
(b)
Following the Effective
Time, Vishay, at its sole option, cost and expense, shall continue to administer
the Insurance Policies, including on behalf of VPG and the other members of the
VPG Group. Vishay’s retention of the administrative responsibilities for the
Insurance Policies shall not relieve VPG or any member of the VPG Group
submitting any insurance claim of the responsibility to report such claim
accurately, completely and in a timely manner or limit the authority of VPG or
such other member of the VPG Group to settle any such insurance claim within the
limits of the relevant Insurance Policy. Vishay may discharge its administrative
responsibilities under this
Section 7.2(b)
by contracting for the provision of services
by one or more independent parties.
(c)
If any insurer does not
promptly acknowledge insurance coverage in connection with any insured Assumed
Liabilities, then, with respect to such insured Assumed Liabilities, VPG, on an
as-incurred basis (i) shall advance all amounts expended by Vishay for or with
respect to such insured Assumed Liabilities, including all costs and expenses in
connection with the defense and settlement and in satisfaction of any judgment
incurred, and amounts sufficient to cover any Liabilities required to be paid by
Vishay or any member of the Vishay Group, and (ii) shall pay all costs incurred
in connection with pursuing and recovering Insurance Proceeds with respect to
the insured Assumed Liabilities, but, in the case of each of clauses (i) and
(ii) above, only to the extent Vishay is taking action in respect therewith at
the request of VPG, which shall be entitled to direct all such defense,
settlement and recovery efforts, subject, however to the provisions of Article
V. Any Insurance Proceeds received by Vishay or any other member of the Vishay
Group after the Effective Time under such policies and programs in respect of
VPG and the other members of the VPG Group shall be for the benefit of and shall
promptly be paid over to VPG and the other members of the VPG Group.
Notwithstanding anything herein to the contrary, neither Vishay nor any member
of the Vishay Group shall be liable for the satisfaction of any claim by VPG or
any member of the VPG Group out of any self-insurance program maintained by a
member of the Vishay Group to the extent relating to an Assumed Liability.
(d)
Except as otherwise
provided in
Schedule 1.4
or
Schedule 2.5(b)(v)
,
Vishay and VPG agree that the aggregate amount of any deductible paid shall be
borne by the parties in the same proportion as the Insurance Proceeds received
by each such party bears to the total Insurance Proceeds received under the
applicable Insurance Policy, and any party that has paid more than its allocable
share of the deductible shall be entitled to receive from the other party an
amount such that each party will only bear its allocable share.
(e)
This Agreement is not
intended as an attempted assignment of any policy of insurance or as a contract
of insurance and shall not be construed to waive any right or remedy of any
member of the Vishay Group in respect of any insurance policy or any other
contract or policy of insurance.
- 48 -
(f)
The parties agree to use
their reasonable best efforts to cooperate with respect to the insurance matters
contemplated by this Agreement. In the event that both parties have insurance
claims relating to the same occurrence, the parties shall jointly defend and
waive any conflict necessary to the conduct of a joint defense.
(g)
Nothing in this Agreement
shall be deemed to restrict any member of the VPG Group from acquiring at its
own expense any other insurance policy in respect of any Liabilities or covering
any period.
Section 7.3
Insurance for VPG Officers &
Directors
. Vishay shall
use its reasonable best efforts to provide insurance to those individuals who at
and immediately following the Effective Time are officers, directors, employees,
fiduciaries or agents of VPG and who immediately prior to the Effective Time
were insured persons under the current Vishay Directors & Officers Liability
Insurance Policy (such individuals, the “
VPG Officers &
Directors
”) with material
terms and conditions no less favorable to the VPG Officers & Directors than
is available to the officers, directors, employees, fiduciaries or agents of
Vishay under the Vishay Directors & Officers Liability Insurance Policy in
effect at such time, except that such insurance shall exclude coverage for
wrongful acts, errors or omissions occurring after the Distribution
Date.
Section 7.4
Director and Officer
Indemnification
. For a
period of six (6) years from the Effective Time, the provisions of the Amended
and Restated Certificate of Incorporation and Amended and Restated By-laws of
Vishay to the extent providing for indemnification of persons who were officers,
directors, employees, fiduciaries or agents immediately prior to the Effective
Time shall not be amended in any manner that would adversely affect the rights
of persons who at the Effective Time were directors, officers, employees,
fiduciaries or agents of any member of the VPG Group, unless such modification
shall be required by, and then only to the minimum extent required by,
Applicable Law.
Section 7.5
VPG Insurance
. Effective as of the Distribution Date,
except as expressly provided herein, Vishay shall not be obligated to maintain
insurance coverage with respect to the business, affairs, operations, assets or
liabilities of the VPG Group, and VPG shall indemnify and hold the Vishay Group
harmless from any Liabilities arising by reason of the failure of the VPG Group
to maintain such insurance.
ARTICLE VIII
DISPUTE RESOLUTION
Section 8.1
Agreement to Resolve
Disputes
. Except as
otherwise specifically provided in any Ancillary Agreement, the procedures for
discussion, negotiation and dispute resolution set forth in this
Article VIII
shall apply to all disputes, controversies or
claims (whether sounding in contract, tort or otherwise) that may arise out of
or relate to or arise under or in connection with this Agreement or any
Ancillary Agreement, or the transactions contemplated hereby or thereby
(including all actions taken in furtherance of the transactions contemplated
hereby or thereby on or prior to the date hereof), or the commercial or economic
relationship of the parties relating hereto or thereto, between or among any
member of the Vishay Group on the one hand and the VPG Group on the other hand.
Each party agrees on
behalf of
itself and each member of its respective Group that the procedures set forth in
this
Article VIII
shall be the sole and exclusive remedy in
connection with any dispute, controversy or claim relating to any of the
foregoing matters and irrevocably waives any right to commence any Action in or
before any Governmental Authority, except as otherwise required by Applicable
Law.
- 49 -
Section 8.2
Dispute Resolution;
Mediation
.
(a)
Either party may commence
the dispute resolution process of this
Section
8.2
by giving the other party written notice (a
“
Dispute Notice
”) of any controversy, claim or dispute of
whatever nature arising out of or relating to or in connection with this
Agreement, any Ancillary Agreement or the breach, termination, enforceability or
validity thereof (a “
Dispute
”) which has not been resolved in the normal
course of business or as provided in the relevant Ancillary Agreement. The
parties shall attempt in good faith to resolve any Dispute by negotiation
between executives of each party (“
Senior Party
Representatives
”) who have
authority to settle the Dispute and, unless discussions between the parties are
already at a senior management level, who are at a higher level of management
than the Persons who have direct responsibility for the administration of this
Agreement or the relevant Ancillary Agreement. Within fifteen (15) days after
delivery of the Dispute Notice, the receiving party shall submit to the other a
written response (the “
Response
”). The Dispute Notice and the Response shall
include (i) a statement setting forth the position of the party giving such
notice and a summary of arguments supporting such position and (ii) the name and
title of such party’s Senior Party Representative and any other Persons who will
accompany the Senior Party Representative at the meeting at which the parties
will attempt to settle the Dispute. Within thirty (30) days after the delivery
of the Dispute Notice, the Senior Party Representatives of both parties shall
meet at a mutually acceptable time and place, and thereafter as often as they
reasonably deem necessary, to attempt to resolve the Dispute. The parties shall
cooperate in good faith with respect to any reasonable requests for exchanges of
Information regarding the Dispute or a Response thereto.
(b)
If the Dispute has not
been resolved within sixty (60) days after delivery of the Dispute Notice, or if
the parties fail to meet within thirty (30) days after delivery of the Dispute
Notice as hereinabove provided, the parties shall make a good faith attempt to
settle the Dispute by mediation pursuant to the provisions of this
Section 8.2
before resorting to arbitration contemplated
by
Section 8.3
or any other dispute resolution procedure
that may be agreed by the parties.
(c)
All negotiations,
conferences and discussions pursuant to this
Section 8.2
shall be confidential and shall be treated as
compromise and settlement negotiations. Nothing said or disclosed, nor any
document produced, in the course of such negotiations, conferences and
discussions that is not otherwise independently discoverable shall be offered or
received as evidence or used for impeachment or for any other purpose in any
current or future arbitration.
(d)
Unless the parties agree
otherwise, the mediation shall be conducted in accordance with the CPR Institute
for Dispute Resolution Model Procedure for Mediation of Business Disputes in
effect on the date of this Agreement by a mediator mutually selected by the
parties.
- 50 -
(e)
Within thirty (30) days
after the mediator has been selected as provided above, both parties and their
respective attorneys shall meet with the mediator for one (1) mediation session,
it being agreed that each party representative attending such mediation session
shall be a Senior Party Representative with authority to settle the Dispute. If
the Dispute cannot be settled at such mediation session or at any mutually
agreed continuation thereof, either party may give the other and the mediator a
written notice declaring the mediation process at an end.
(f)
Costs of the mediation
shall be borne equally by the parties involved in the matter, except that each
party shall be responsible for its own expenses.
(g)
Any Dispute regarding the
following matters is not required to be negotiated or mediated prior to seeking
relief from an arbitrator or, if applicable, from a court pursuant to
Section 10.14
: (i) breach of any obligation of
confidentiality or waiver of Privilege; and (ii) any other claim where interim
relief is sought to prevent serious and irreparable injury to one of the
parties. However, the parties to the Dispute shall make a good faith effort to
negotiate and mediate such Dispute, according to the above procedures, while
such arbitration is pending.
Section 8.3
Arbitration
.
(a)
Subject to
Section 8.3(b)
, if for any reason a Dispute is not resolved
within one hundred eighty (180) days from delivery of the Dispute Notice in
accordance with the dispute resolution process described in
Section 8.2
, the parties agree that such Dispute shall be
settled by binding arbitration before a single arbitrator under the auspices of
the American Arbitration Association (“
AAA
”) in Philadelphia, Pennsylvania pursuant to
the Commercial Rules of the AAA. The arbitrator selected to resolve the Dispute
shall be bound exclusively by the laws of the State of New York without regard
to its choice of law rules. Any decisions of award of the arbitrator will be
final and binding upon the parties and may be entered as a judgment by the
parties. Any rights to appeal or review such award by any court or tribunal are
hereby waived to the extent permitted by Applicable Law.
(b)
Costs of the arbitration
shall be borne equally by the parties involved in the matter, except that each
party shall be responsible for its own expenses, except as otherwise determined
by the arbitrator.
(c)
The parties agree to
comply and cause the members of their applicable Group to comply with any award
made in any arbitration proceeding pursuant to this
Section 8.3
, and agree to enforcement of or entry of
judgment upon such award in any court of competent jurisdiction, including any
federal or state court located in Philadelphia, Pennsylvania or the City of New
York, Borough of Manhattan. The arbitrator shall be entitled to award any remedy
in such proceedings, including monetary damages, specific performance and all
other forms of legal and equitable relief;
provided
,
however
, that the arbitrator shall not be entitled to
award punitive, exemplary, treble or any other form of non-compensatory monetary
damages unless in connection with indemnification for a Third Party Claim, to
the extent of such claim.
Section 8.4
Continuity of Service and
Performance
. Unless
otherwise agreed in writing, the parties will continue to provide service and
honor all other commitments under this
Agreement and each Ancillary Agreement during the course of dispute
resolution pursuant to the provisions of this
Article VIII
with respect to all matters not subject to
such Dispute.
- 51 -
Section 8.5
Limitation of Liability
. In no event shall any member of the Vishay
Group or the VPG Group be liable to any member of the other Group for any
special, consequential, indirect, collateral, incidental or punitive damages or
lost profits or failure to realize expected savings or other commercial or
economic loss of any kind, however caused and on any theory of liability
(including negligence) arising in any way out of this Agreement, whether or not
such Person has been advised of the possibility of any such damages;
provided
,
however
, that the foregoing limitations shall not
limit either party’s indemnification obligations for Liabilities with respect to
Third Party Claims as set forth in
Article V
. The provisions of
Article V
,
Article VIII
and
Section 10.14
shall be the parties’ sole recourse for any
breach hereof or any breach of the Ancillary Agreements, except as may be
explicitly provided in any Ancillary Agreement.
ARTICLE IX
TERMINATION
Without limiting the generality of
Section 3.5(a)
, (i) this Agreement and the Ancillary
Agreements may be terminated, (ii) the Separation may be abandoned and (iii) the
Distribution may be abandoned, in each case at any time prior to the Effective
Time by and in the sole and absolute discretion of Vishay without the approval
of VPG. In the event of such termination, neither party shall have any Liability
of any kind to the other party.
ARTICLE X
MISCELLANEOUS
Section 10.1
Counterparts
. This Agreement may be executed in one or
more counterparts, each of which when so executed and delivered or transmitted
by facsimile, e-mail or other electronic means, shall be deemed to be an
original and all of which taken together shall constitute but one and the same
instrument. A facsimile or electronic signature is deemed an original signature
for all purposes under this Agreement.
Section 10.2
Entire Agreement
. This Agreement, the Ancillary Agreements,
and any Annexes, Schedules and Exhibits hereto and thereto, as well as any other
agreements and documents referred to herein and therein, constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all previous agreements, negotiations, discussions,
understandings, writings, commitments and conversations between the parties with
respect to such subject matter. No agreements or understandings exist between
the parties other than those set forth or referred to herein or therein.
- 52 -
Section 10.3
Construction
.
(a)
Any uncertainty or
ambiguity with respect to any provision of this Agreement shall not be construed
for or against any party based on attribution of drafting by either
party.
(b)
The headings contained
herein are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. In this Agreement, unless a clear
contrary intention appears:
(i)
the singular number includes the plural number and vice
versa;
(ii)
reference to any Person
includes such Person’s successors and assigns but, if applicable, only if such
successors and assigns are not prohibited by this Agreement, and reference to a
Person in a particular capacity excludes such Person in any other capacity or
individually;
(iii)
reference to any gender includes each other gender;
(iv)
reference to any
agreement, document or instrument means such agreement, document or instrument
as amended, modified, supplemented or restated, and in effect from time to time
in accordance with the terms thereof subject to compliance with the requirements
set forth herein;
(v)
reference to any
Applicable Law means such Applicable Law as amended, modified, codified,
replaced or reenacted, in whole or in part, and in effect from time to time,
including rules and regulations promulgated thereunder, and reference to any
section or other provision of any Applicable Law means that provision of such
Applicable Law from time to time in effect and constituting the substantive
amendment, modification, codification, replacement or reenactment of such
section or other provision;
(vi)
“herein,” “hereby,”
“hereunder,” “hereof,” “hereto” and words of similar import shall be deemed
references to this Agreement as a whole and not to any particular article,
section or other provision hereof or thereof;
(vii)
“including” (and with
correlative meaning “include”) means including without limiting the generality
of any description preceding such term;
(viii)
the Table of Contents and
headings are for convenience of reference only and shall not affect the
construction or interpretation hereof or thereof;
(ix)
with respect to the
determination of any period of time, “from” means “from and including” and “to”
means “to but excluding;” and
(x)
references to documents,
instruments or agreements shall be deemed to refer as well to all addenda,
exhibits, schedules or amendments thereto.
- 53 -
Section 10.4
Assignability
. This Agreement shall be binding upon and
inure to the benefit of the parties, and their respective successors and
permitted assigns;
provided
,
however
, that no party may assign, delegate or
transfer (by merger, operation of law or otherwise) its respective rights or
delegate its respective obligations under this Agreement without the express
prior written consent of the other party. Notwithstanding the foregoing, either
party may assign its rights and obligations under this Agreement to any
Wholly-owned Subsidiary;
provided
,
however
, that each party shall at all times remain
liable for the performance of its obligations under this Agreement by any such
Wholly-owned Subsidiary. Any attempted assignment or delegation in violation of
this
Section 10.4
shall be void.
Section 10.5
Third Party Beneficiaries
. Except for (x) the indemnification rights
under this Agreement of any Vishay Indemnified Party or any VPG Indemnified
Party in their respective capacities as such under
Article V
and for the release under
Section 5.1
of any Person provided therein and (y) the
rights to insurance of VPG Officers and Directors under
Section 7.3
: (i) the provisions of this Agreement are
solely for the benefit of the parties and their respective successors and
permitted assigns, and are not intended to confer upon any Person, except the
parties and their respective successors and permitted assigns, any rights or
remedies hereunder; (ii) there are no third party beneficiaries of this
Agreement; and (iii) this Agreement shall not provide any third party with any
remedy, claim, liability, reimbursement, claim of action or other right in
excess of those existing without reference to this Agreement.
Section 10.6
Governing Law
. This Agreement and the legal relations
between the parties shall be governed by and construed in accordance with the
laws of the State of New York, without regard to the conflict of laws rules
thereof to the extent such rules would require the application of the law of
another jurisdiction.
Section 10.7
Notices
. All notices, demands and other
communications required to be given to a Party hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered, sent by a
nationally recognized overnight courier, transmitted by facsimile, or mailed by
registered or certified mail (postage prepaid, return receipt requested) to such
Party at the relevant street address or facsimile number set forth below (or at
such other street address or facsimile number as such Party may designate from
time to time by written notice in accordance with this provision):
If to Vishay, to:
Vishay Intertechnology,
Inc.
63 Lancaster
Avenue
Malvern, PA
19355-2120
Attention: Dr. Lior E. Yahalomi,
Chief Financial Officer
Telephone: 610-644-1300
Facsimile: 610-889-2161
with a copy to:
Kramer Levin Naftalis & Frankel
LLP
1177 Avenue of the
Americas
New York, NY 10036
Attention: Ernest S. Wechsler,
Esq.
Telephone: 212-715-9100
Facsimile: 212-715-8000
- 54 -
If to VPG, to:
Vishay Precision Group, Inc.
3 Great Valley Parkway
Malvern, PA 19355-1307
Attention: William M. Clancy, Chief Financial Officer
Telephone:
484-321-5300
Facsimile: 484-321-5301
with a copy to:
Pepper Hamilton LLP
3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, Pennsylvania 19103-2799
Attention: Barry Abelson, Esq.
Telephone: 215-981-4000
Facsimile: 215-981-4750
Any notice, demand or
other communication hereunder shall be deemed given upon the first to occur of:
(i) the fifth (5
th
) day after deposit thereof, postage prepaid
and addressed correctly, in a receptacle under the control of the United States
Postal Service; (ii) transmittal by facsimile transmission to a receiver or
other device under the control of the party to whom notice is being given; or
(iii) actual delivery to or receipt by the party to whom notice is being given
or an employee or agent thereof.
Section 10.8
Severability
. If any provision of this Agreement or the
application thereof to any Person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to Persons or
circumstances or in jurisdictions other than those as to which it has been held
invalid or unenforceable, shall remain in full force and effect and shall in no
way be affected, impaired or invalidated thereby, so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. Upon such determination, the parties shall
negotiate in good faith in an effort to agree upon such a suitable and equitable
provision to effect the original intent of the parties.
Section 10.9
Nonrecurring Costs and
Expenses
. Vishay shall pay
for all reasonable documented out-of-pocket fees, costs and expenses incurred by
the VPG Group prior to the Effective Time in connection with the Separation and
the Distribution.
- 55 -
Section 10.10
Press Releases; Public
Announcements
. Prior to
the Distribution Date, Vishay shall be responsible for issuing any press
releases or otherwise making public statements
with respect to this Agreement, the Ancillary
Agreements, the Separation, the Distribution or any of the other transactions
contemplated hereby and thereby, and VPG shall not make such statements without
the prior written consent of Vishay. Prior to the Distribution Date, Vishay and
VPG shall each consult with the other prior to making any filings with any
Governmental Authority with respect to any of the foregoing, but no such filing
shall be made without the approval of Vishay, and Vishay shall be permitted to
make any filings as it deems necessary or appropriate. Following the Effective
Time, neither party shall issue any release or make any other public
announcement concerning this Agreement or the transactions contemplated hereby
without the prior written approval of the other party, which approval shall not
be unreasonably withheld, delayed or conditioned;
provided
,
however
, that either party shall be permitted to make
any release or public announcement that in the opinion of its counsel it is
required to make by law or the rules of any national securities exchange of
which its securities are listed;
provided
further
that it has made efforts that are reasonable
in the circumstances to obtain the prior approval of the other party.
Section 10.11
Survival of Covenants
. Except as expressly set forth in this
Agreement or any Ancillary Agreement, any covenants, representations or
warranties contained in this Agreement or any Ancillary Agreement shall survive
the Separation and Distribution and shall remain in full force and effect.
Section 10.12
Waiver of Default
.
(a)
Any term or provision of
this Agreement may be waived, or the time for its performance may be extended,
by the party or the parties entitled to the benefit thereof. Any such waiver
shall be validly and sufficiently given for the purposes of this Agreement if,
as to any party, it is in writing signed by an authorized representative of such
party.
(b)
Waiver by any party of
any default by the other party of any provision of this Agreement shall not be
construed to be a waiver by the waiving party of any subsequent or other
default, nor shall it in any way affect the validity of this Agreement or any
party hereof or prejudice the rights of the other party thereafter to enforce
each and ever such provision. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
Section 10.13
Amendments
. This Agreement may be amended, supplemented,
modified or abandoned at any time prior to the Distribution Date by and in the
sole and absolute discretion of Vishay without the approval of VPG or of the
stockholders of Vishay. After the Effective Time, no provisions of this
Agreement shall be deemed amended, modified or supplemented by any party, unless
such amendment, supplement or modification is in writing and signed by the
authorized representative of the party against whom it is sought to enforce such
amendment, supplement or modification.
- 56 -
Section 10.14
Specific Performance
. The parties agree that the remedy at law for
any breach of this Agreement or any Ancillary Agreement may be inadequate, and
that, as between Vishay and VPG, any party by whom this Agreement or any
Ancillary Agreement is enforceable shall be entitled to seek temporary,
preliminary or permanent injunctive or other equitable relief
with respect to the
specific enforcement or performance of this Agreement or any Ancillary
Agreement. Such party may, in its sole discretion, apply to a court of competent
jurisdiction for such injunctive or other equitable relief as such court may
deem just and proper in order to enforce this Agreement or any Ancillary
Agreement as between Vishay and VPG, or the members of their respective Groups,
or prevent any violation hereof, and, to the extent permitted by Applicable Law,
as between Vishay and VPG, each party waives any objection to the imposition of
such relief.
Section 10.15
Consent to Jurisdiction
. Subject to the provisions of
Article VIII
, each of the parties irrevocably submits to
the jurisdiction of the federal and state courts located in Philadelphia,
Pennsylvania and the City of New York, Borough of Manhattan for the purposes of
any suit, Action or other proceeding to compel arbitration, for the enforcement
of any arbitration award or for specific performance or other equitable relief
pursuant to
Section 10.14
. Each of the parties further agrees that
service of process, summons or other document by U.S. registered mail to such
parties address as provided in
Section 10.7
shall be effective service of process for any
Action, suit or other proceeding with respect to any matters for which it has
submitted to jurisdiction pursuant to this
Section 10.15
. Each of the parties irrevocably waives any
objection to venue in the federal and state courts located in Philadelphia,
Pennsylvania and the City of New York, Borough of Manhattan of any Action, suit
or proceeding arising out of this Agreement or any Ancillary Agreement, or the
transactions contemplated hereby or thereby for which it has submitted to
jurisdiction pursuant to this
Section 10.15
, and waives any claim that any such Action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum.
Section 10.16
Waiver of jury trial
. Subject to
Article VIII
, each of the parties hereby waives to the
fullest extent permitted by Applicable Law any right it may have to a trial by
jury with respect to any court proceeding directly or indirectly arising out of
and permitted under or in connection with this agreement or the transactions
contemplated by this agreement. Each of the parties hereby (a) certifies that no
representative, agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce the foregoing waiver and (b) acknowledges that it has been induced to
enter into this agreement and the transactions contemplated by this agreement,
as applicable, by, among other things, the mutual waivers and certifications in
this
Section 10.16
.
[SIGNATURE PAGE FOLLOWS]
- 57 -
WHEREFORE
, the
parties have signed this Separation Agreement effective as of the date first set
forth above.
|
VISHAY INTERTECHNOLOGY,
INC.
|
|
|
|
/s/ Lior E.
Yahalomi
|
|
Name:
|
Dr. Lior E. Yahalomi
|
|
Title:
|
Executive Vice President and Chief Financial
|
|
Officer
|
|
|
|
|
|
|
VISHAY PRECISION GROUP,
INC.
|
|
|
|
/s/ William M.
Clancy
|
|
Name:
|
William M. Clancy
|
|
Title:
|
Executive Vice President and Chief Financial
|
|
Officer
|
|
MASTER SEPARATION AND DISTRIBUTION AGREEMENT
between
VISHAY INTERTECHNOLOGY, INC.
and
VISHAY PRECISION GROUP, INC.
DATED JUNE 22, 2010
ANNEX A
- 2 -
VISHAY PRECISION GROUP, INC.
Pro Forma Combined and Consolidated Balance
Sheets
(In thousands)
|
April 3,
|
|
2010
|
|
(unaudited)
|
Assets
|
|
|
|
Current assets:
|
|
|
|
Cash and cash equivalents
|
$
|
73,121
|
|
Accounts receivable, net
|
|
25,212
|
|
Net inventories
|
|
45,010
|
|
Deferred income taxes
|
|
4,984
|
|
Prepaid expenses and other current
assets
|
|
5,333
|
|
Total current assets
|
|
153,660
|
|
|
Property and equipment, net
|
|
44,236
|
|
Intangible assets, net
|
|
16,244
|
|
Other assets
|
|
8,440
|
|
Total assets
|
$
|
222,580
|
|
|
|
|
|
Liabilities and equity
|
|
|
|
Current liabilities:
|
|
|
|
Notes payable to banks
|
$
|
-
|
|
Trade accounts payable
|
|
6,942
|
|
Payroll and related expenses
|
|
7,082
|
|
Other accrued expenses
|
|
6,119
|
|
Income taxes
|
|
1,286
|
|
Current portion of long-term
debt
|
|
96
|
|
Total
current liabilities
|
|
21,525
|
|
|
Long-term debt, less current
portion
|
|
14,525
|
|
Deferred income taxes
|
|
5,985
|
|
Other liabilities
|
|
6,347
|
|
Accrued pension and other postretirement
costs
|
|
10,442
|
|
Total
liabilities
|
|
58,824
|
|
|
Equity:
|
|
|
|
Common stock
|
|
1,230
|
|
Class B common stock
|
|
100
|
|
Paid in capital in excess of
par
|
|
174,523
|
|
Accumulated other comprehensive income
(loss)
|
|
(12,231
|
)
|
Total stockholders’
equity
|
|
163,622
|
|
Noncontrolling interests
|
|
134
|
|
Total equity
|
|
163,756
|
|
Total liabilities and equity
|
$
|
222,580
|
|
- 3 -
MASTER SEPARATION AND DISTRIBUTION AGREEMENT
between
VISHAY INTERTECHNOLOGY, INC.
and
VISHAY PRECISION GROUP, INC.
DATED JUNE 22, 2010
SCHEDULES
Terms used but not
defined in these Schedules shall have the meanings assigned to them in the
Master Separation and Distribution Agreement (the “Master Separation
Agreement”).
1
Schedule
1.1
Capital Allocation
Transactions
Prior to the Separation,
the parties will cause the following transactions to occur:
|
1.
|
|
All intercompany
accounts for money borrowed and non-trade invoicing between Vishay or any
other member of the Vishay Group, on the one hand, and VPG or any other
member of the VPG Group, on the other, will be settled and
eliminated.
|
|
|
|
2.
|
|
The
extinguishment of notes payable obligations running from members of the
VPG Group to members of the Vishay Group will be effected through
distribution and contribution transactions of cash and the
notes.
|
|
|
|
3.
|
|
Vishay will cause
the VPG to have Actual VPG Net Cash as of the Distribution Date equal
between $58,500,000 and $71,500,000. To the extent Actual VPG Net Cash is
less than or exceeds these values, the parties will make an adjustment in
accordance with the terms of Section 2.17 of the Master Separation
Agreement.
|
|
|
|
4.
|
|
VPG will enter
into a credit facility.
|
The foregoing
transaction list is qualified by reference to the description of the separation
transactions in the Private Letter Ruling Request, dated June 11, 2010, as
amended from time to time prior to the Separation, submitted by Vishay
Intertechnology, Inc. to the Internal Revenue Service (the “
Private Letter Ruling
Request
”). In the case of
any inconsistency between this Schedule and the Private Letter Ruling Request,
this Schedule shall be deemed amended to conform to the description of the
separation transactions as set forth in the Private Letter Ruling Request.
2
Schedule 1.2
Exclusive VPG Contingent
Liabilities
For the avoidance of
doubt, this schedule is not necessarily exhaustive of all litigation relating to
the MGF Business.
Lawsuits
Tawfik v.
Vishay Intertechnology, Inc.
McMahon v. Vishay Intertechnology, Inc.
Environmental
Matters
Wondra v. BLH
Electronics
Tak and Binh Chan v.
Vishay Measurements Group et al
Sutton Brook Site
(Vishay BLH, MA)
Product Liability
Esteve SA (Rians,
France)
Open VPG Claims
|
|
|
|
Date of
|
|
Claim
|
|
|
|
|
|
|
Name of Employee
|
|
Incident
|
|
Number
|
|
Status
|
|
Entity
|
7.
|
|
[Employee name omitted]
|
|
28.11.2003
|
|
10604063401
|
|
open
|
|
Tedea International Ltd
|
8.
|
|
[Employee name omitted]
|
|
09.01.2006
|
|
10607050390
|
|
open
|
|
V.I.E.C. Ltd.
|
9.
|
|
[Employee name omitted]
|
|
28.05.2007
|
|
10607031117
|
|
open
|
|
V.I.E.C. Ltd.
|
10.
|
|
[Employee name omitted]
|
|
13.06.2007
|
|
10607036036
|
|
open
|
|
V.I.E.C. Ltd.
|
11.
|
|
[Employee name omitted]
|
|
04.11.2007
|
|
10607065396
|
|
open
|
|
Vishay Israel Limited
|
12.
|
|
[Employee name omitted]
|
|
17.12.2002
|
|
10609050909
|
|
open
|
|
Vishay Israel
Limited
|
3
Schedule 1.3
Separation Transactions
The separation
transactions shall be as specified in the Private Letter Ruling Request. In the
case of any inconsistency between this Schedule and the Private Letter Ruling
Request, this Schedule shall be deemed amended to conform to the description of
the separation transactions as set forth in the Private letter Ruling Request.
The parties will cause
the following miscellaneous asset transfers to occur:
|
1.
|
|
Acquisition of intellectual property owned by Vishay S.A. and
necessary for manufacturing strain gage products to Vishay Measurements
Group, Inc.
|
|
|
|
2.
|
|
Acquisition of intellectual property owned by Vishay S.A. and
necessary for manufacturing foil resistor chips for Vishay Precision Foil
GmbH.
|
|
|
|
3.
|
|
Transfer of other intellectual property as set forth in the
attachment hereto.
|
4
Attachment
to
Schedule
1.3 to
Master
Separation
Agreement
Transferred
Intellectual
Property
|
|
COUNTRY
OF
|
|
PATENT
#
|
TITLE
|
REGISTRATION
|
VPG
ASSIGNEE
|
7576622
(US4176445A)
|
Metal foil
resistor
|
United
States
|
Vishay
Precision Group, Inc.
|
4,176,445
|
Metal foil
resistor
|
United
States
|
Vishay
Precision Group, Inc.
|
4,297,670
|
Metal foil
resistor
|
United
States
|
Vishay
Precision Group, Inc.
|
4,306,217
|
Flat electrical
components
|
United
States
|
Vishay
Precision Group, Inc.
|
2926516
|
German
patent
|
Germany
|
Vishay
Precision Group, Inc.
|
1 143
810
|
Metal foil
resistor
|
Canada
|
Vishay
Precision Group, Inc.
|
Application
|
Circuit compensation
in strain gage
|
|
|
61/229,123
|
based
transducers
|
United
States
|
Vishay
Precision Group, Inc.
|
|
Foil strain gage for
automated handling
|
|
|
US 7,150,199
B2
|
and
packaging
|
United
States
|
Vishay
Precision Group, Inc.
|
|
Foil strain gage for
automated handling
|
|
|
WO 2006/041577
A1
|
and
packaging
|
PCT
Worldwide
|
Vishay
Precision Group, Inc.
|
|
Electrical resistors
and methods of
|
|
|
5,206,623
|
making
same
|
United
States
|
Vishay
Precision Group, Inc.
|
|
|
|
|
CURRENT
|
|
|
|
|
RENEWAL
|
TRADEMARK
|
|
TRADEMARK
|
COUNTRY
|
STATUS
|
DATE
|
OWNER
|
VPG ASSIGNEE
|
|
|
|
|
Vishay
|
|
BULK
METAL
|
EUROPEAN UNION
|
REGISTERED
|
14-Feb-11
|
Intertechnology, Inc.
|
Vishay
Precision Group, Inc.
|
|
|
|
|
Vishay
|
|
BULK
METAL
|
FRANCE
|
REGISTERED
|
26-Jun-12
|
Intertechnology, Inc.
|
Vishay
Precision Group, Inc.
|
|
|
|
|
Vishay
|
|
BULK
METAL
|
UNITED STATES
|
REGISTERED
|
19-Dec-12
|
Intertechnology, Inc.
|
Vishay
Precision Group, Inc.
|
|
|
|
|
Vishay
Techno
|
|
MULTIDIAL
|
UNITED STATES
|
REGISTERED
|
23-May-11
|
Components LLC
|
Vishay
Precision Group, Inc.
|
1
Schedule 1.4
Shared Contingent
Liabilities
Product Liability
Product liability refers
to third party liability from bodily injury and/or property damage caused by
faulty products. With respect to products manufactured in all jurisdictions
other than the United States and sold prior to the Separation, it also includes
other third party financial loss and the cost of dismantling and refitting any
other products manufactured with the faulty product, but does not include the
cost of product recall. With respect to products sold in the United States, it
includes other third party financial loss only to extent covered by the Errors
and Omission (E&O) Insurance Policy of the Vishay Group.
The Vishay Group will be
responsible for product liability in respect of any product manufactured by the
VPG Group outside the United States and sold prior to the Separation, whether a
claim is made with respect thereto before or after the Separation, to the extent
of available insurance coverage of the Vishay Group.
The Vishay Group will be
responsible for product liability in respect of any product sold by the VPG
Group prior to the Separation inside the United States, but only for which a
claim has been made with respect thereto before the Separation, to the extent of
available insurance coverage of the Vishay Group; provided that to the extent
the liability is covered under the Errors & Omission (E&O) Insurance
Policy of the Vishay Group, Vishay will be responsible for the liability whether
a claim is made with respect thereto before or after the
Separation.
The following shall
govern deductible amounts under any insurance policies of the Vishay Group for
which coverage is sought under the circumstances recited in the two preceding
paragraphs. Any deductible for which a liability has been accrued on the books
and records of the VPG Group prior to the Separation will be the sole
responsibility of the VPG Group. Any policy deductible for which a liability has
not been accrued on the books and records of the VPG Group prior to the
Separation will be shared equally by the Vishay Group and the VPG Group.
Vishay agrees to (i)
obtain tail coverage for a period of five years under the E&O Policy of
Vishay (as in effect on the date the Agreement), to the extent it affords
coverage for third party loss on account of products manufactured and sold by
the VPG Group prior to the Separation; and (ii) purchase or self-insure extended
reporting coverage for a period of five years for product liability relating to
products of the VPG Group manufactured and sold prior to the Separation, which
coverage shall be substantially the same (including deductible amounts and
policy limits) as the coverage afforded under the existing policy of Vishay with
HDI-Gerling (as in effect on the date the Agreement), but only in respect of
products manufactured outside the United States.
5
Product Recall Liability
Product Recall Liability
refers to third party expenses arising in connection with the recall of a faulty
product to prevent bodily injury or property damage.
The Vishay Group will be
responsible for product recall liability in respect of any product manufactured
by the VPG Group outside the United States and sold prior to the Separation,
whether a claim is made with respect thereto before or after the Separation, to
the extent of available insurance coverage of the Vishay Group.
The following shall
govern deductible amounts under any insurance policies of the Vishay Group for
which coverage is sought under the circumstances recited in the preceding
paragraph. Any deductible for which a liability has been accrued on the books
and records of the VPG Group prior to the Separation will be the sole
responsibility of the VPG Group. Any policy deductible for which a liability has
not been accrued on the books and records of the VPG Group prior to the
Separation will be shared equally by the Vishay Group and the VPG Group.
Vishay agrees to
purchase or self-insure extended reporting coverage for a period of five years
for product recall liability relating to products of the VPG Group manufactured
and sold prior to the Separation, which coverage shall be substantially the same
(including deductible amounts and policy limits) as the coverage afforded under
the existing policy of Vishay with Gerling Insurance (as in effect on the date
the Agreement), but only in respect of products manufactured outside the United
States.
Liabilities Relating to the
Separation
Liabilities relating to
the Separation based upon a claim or other assertion that the Separation
violated the rights of any Person or constituted a breach of a duty owed by any
Person to the stockholders of Vishay or VPG shall be borne by the Vishay Group
and the VPG Group as follows:
|
(i)
|
|
if covered by an
insurance policy of the Vishay Group or an insurance policy of the VPG
Group, by the Vishay Group or the VPG Group, as the case may be, but only
to the extent of the insurance proceeds;
|
|
|
|
(ii)
|
|
each party shall
be responsible for the policy deductible under its insurance policy
referred to in clause (i); and
|
|
|
|
(iii)
|
|
otherwise in the
proportion of the Vishay Group 90% and the VPG Group
10%.
|
6
Schedule 2.4(a)(iii)
Subsidiaries of VPG
Company Name
|
Country
|
Vishay - PM Belgium N.V.
|
Belgium
|
Vishay - Waste Collection Systems Belgium N.V.
|
Belgium
|
High Goals Investments Limited
|
British Virgin Islands
|
Vishay Tedea-Huntleigh (Beijing) Electronics Co., Ltd
|
China
|
Vishay Precision Measurement Trading
(Shanghai) Co., Ltd.
|
China
|
Vishay Celtron Technologies (Tianjin)
Co., Ltd
|
China
|
Pharos de Costa Rica, S.A.
|
Costa Rica
|
Vishay PME France SARL
|
France
|
SCI Vijafranc
|
France
|
Vishay Measurements Group France,
S.A.S.
|
France
|
Vishay Precision Foil GmbH
|
Germany
|
Vishay Measurement Group GmbH
|
Germany
|
Powertron GmbH
|
Germany
|
MDT Technik GmbH
|
Germany
|
Vishay Transducers India
Limited
|
India
|
Vishay Precision Transducers India
Private Limited
|
India
|
Vishay PM Onboard (Ireland)
Limited
|
Ireland
|
Vishay Precision Israel Ltd.
|
Israel
|
Vishay Advanced Technologies,
Ltd.
|
Israel
|
Tedea-Huntleigh International,
Ltd.
|
Israel
|
T-H Industrial Properties,
Ltd.
|
Israel
|
T-H Technology, Ltd.
|
Israel
|
Alpha Electronics Corp.
|
Japan
|
Vishay Precision Foil K.K.
|
Japan
|
Vishay Precision Holdings B.V.
|
Netherlands
|
Vishay - Waste Collection Systems
B.V.
|
Netherlands
|
Tedea Huntleigh B.V.
|
Netherlands
|
Vishay Revere Transducers Europe
B.V.
|
Netherlands
|
Vishay Nobel AS
|
Norway
|
Vishay Precision Asia Investments Pte.
Ltd.
|
Singapore
|
Vishay Precision España S.L.
|
Spain
|
Vishay Nobel AB
|
Sweden
|
AB Givareteknik
|
Sweden
|
Vishay Celtron Technologies,
Inc.
|
Taiwan
|
Vishay Measurements Group UK
Limited
|
United Kingdom
|
Vishay PM Group Limited
|
United Kingdom
|
Vishay PM Onboard Limited
|
United Kingdom
|
Tedea-Huntleigh Europe Ltd.
|
United Kingdom
|
Selectaid Limited
|
United Kingdom
|
Meadowgrip Limited
|
United Kingdom
|
Fleet Weighing Limited
|
United Kingdom
|
PM Electronics Limited
|
United Kingdom
|
Waste Collection Systems
Limited
|
United Kingdom
|
Vishay Precision Group, Inc.
|
United States
|
Vishay Measurements Group,
Inc.
|
United States
|
Vishay Transducers Ltd.
|
United States
|
Vishay Precision Foil, Inc.
|
United States
|
Vishay BLH, Inc.
|
United States
|
Tedea-Huntleigh, Inc.
|
United
States
|
7
Schedule 2.4(b)(i)
Excluded Assets
|
1.
|
|
All
assets used exclusively by Vishay S.A. in its strain gage business other
than intellectual property.
|
|
|
|
2.
|
|
All
assets used exclusively by Vishay S.A. in finishing RCK foil resistor
products, other than the intellectual property and equipment transferred
to Vishay Advanced Technologies Ltd. (see Schedule
1.3).
|
8
Schedule 2.5(b)(ii)
Excluded Assumed
Liabilities
Excluded Assumed
Liabilities other than Excluded Assumed Environmental Liabilities set forth on
Schedule 2.5(b)(v).
|
1.
|
|
Any
Liabilities arising from or related to Nippon Vishay, K.K. to the extent
arising from occurrences prior to the
Distribution.
|
9
Schedule 2.5(b)(v)
Excluded Assumed Environmental
Liabilities
Other than the
Environmental Liabilities set forth on Schedule 1.2 to be assumed by VPG, the
Vishay Group will be responsible for Environmental Liabilities in respect of the
manufacturing locations of the VPG Group in existence at or prior to the
Separation in the United States, Germany, India and Israel attributable to, and
to the extent of, conditions in existence at or prior to the Separation, whether
a claim is made with respect thereto before or after the Separation, to the
extent of available insurance coverage of the Vishay Group.
Other than the
Environmental Liabilities set forth on Schedule 1.2 to be assumed by VPG, the
Vishay Group will be responsible for Environmental Liabilities in respect of the
manufacturing locations of the VPG Group in existence at or prior to the
Separation in all other jurisdictions attributable to, and to the extent of,
conditions in existence at or prior to the Separation, whether a claim is made
with respect thereto before or after the Separation, to the extent of available
insurance coverage of the Vishay Group, but only if the environmental conditions
giving rise to the Environmental Liabilities were openly manifest and apparent
prior to the Separation.
The following shall
govern deductible amounts under any insurance policies of the Vishay Group for
which coverage is sought under the circumstances recited in the two preceding
paragraphs. Any deductible for which a liability has been accrued on the books
and records of the VPG Group prior to the Separation will be the sole
responsibility of the VPG Group. Any policy deductible for which a liability has
not been accrued on the books and records of the VPG Group prior to the
Separation will be shared equally by the Vishay Group and the VPG Group.
Vishay agrees to list as
“discontinued locations” (i) for a period of five years for VPG manufacturing
locations in the United States, India and Israel in existence at or prior to the
Separation and (ii) for a period of three years for VPG manufacturing locations
located in Germany in existence at or prior to the Separation, in the insurance
policies of Vishay providing coverage for Environmental Liabilities in those
jurisdictions, but only in respect of Liabilities attributable to, and to the
extent of, environmental conditions in existence at or prior to the Separation.
10
Schedule 2.16
VPG Assets to be Transferred to
Vishay
|
1.
|
|
Research & development facility and warehouse historically
owned by Vishay Advanced Technologies, Ltd. (to be transferred to Vishay
Israel Limited).
|
|
|
|
2.
|
|
The
Dale Surface Mount Resistor “ASL” production line will be sold from Alpha
Electronics Corp. to Vishay Dale Electronics,
Inc.
|
11
Schedule 3.3(b)
Vishay Group Resignations
Effective as of the time
of Separation, Mr. Ziv Shoshani will resign as an executive officer of Vishay
Intertechnology, Inc., but will remain a director on Vishay Intertechnology
Inc.’s board of directors.
12
Schedule 3.4(b)
VPG Group Resignations
Effective as of the time
of the Separation, Dr. Lior Yahalomi and Mr. William Clancy will resign as
directors of VPG.
10
Exhibit 10.2
EMPLOYEE MATTERS
AGREEMENT
by and between
VISHAY INTERTECHNOLOGY,
INC.
and
VISHAY PRECISION GROUP,
INC.
Dated June 22,
2010
EMPLOYEE MATTERS
AGREEMENT
This
EMPLOYEE MATTERS
AGREEMENT
(the
“
Agreement
”) is entered into June 22, 2010, by
and between
Vishay Intertechnology,
Inc.
, a Delaware
corporation (“
Vishay
”), and
Vishay Precision Group,
Inc.
, a Delaware
corporation (“
VPG
”) (each a “
Party
” and together the “
Parties
”).
RECITALS
WHEREAS
, the Board of Directors of Vishay
has determined that it is appropriate and desirable to separate Vishay and VPG
into two publicly-traded companies by separating from Vishay and transferring to
VPG Vishay’s measurement and foil resistor businesses, and related assets and
liabilities;
WHEREAS
, to effectuate the distribution,
the Parties entered into that certain Master Separation and Distribution
Agreement, dated as of June 22, 2010 herewith (the “
Separation
Agreement
”); and
WHEREAS
, pursuant to the Separation
Agreement, Vishay and VPG have agreed to enter into this Agreement for the
purpose of allocating between them assets, liabilities and responsibilities with
respect to employee compensation and benefit plans and
arrangements;
NOW, THEREFORE
, in consideration of the foregoing
premises, the mutual promises and covenants hereinafter set forth, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1
Definitions
. The following terms shall have the
meanings assigned in this Section:
“
Account Transfer
Date
” means,
with respect to any Vishay Benefit Plan, the date on which accounts, assets and
liabilities of such Vishay Benefit Plan are transferred to the corresponding VPG
Benefit Plan.
“
Action
” means any claim, demand, action,
suit, counter-suit, arbitration, inquiry, proceeding or investigation by or
before any Governmental Authority and shall include any negotiations in
settlement of or in lieu of an Action.
“
Agreement
” means this Employee Matters
Agreement.
“
Applicable Law
” means any applicable law, statute,
rule or regulation of any
Governmental Authority, or any outstanding order, judgment, injunction,
ruling or decree by any Governmental Authority.
“
Benefit Plan
” means, with respect to an entity,
each plan, program, policy, on-going arrangement, agreement, payroll practice,
contract, insurance policy or commitment that is an employment, consulting,
non-competition or deferred compensation agreement, or an executive
compensation, incentive bonus, pension, profit-sharing, savings, retirement,
supplemental retirement, stock option, restricted stock unit, phantom stock,
other equity-based compensation, severance pay, life, health, hospitalization,
sick leave, vacation pay, disability or accident insurance plan or other
employee benefit plan, program, arrangement, agreement or commitment that covers
employees sponsored or maintained by such entity.
1
“
COBRA
” means the continuation coverage
requirements for “group health plans” pursuant to Code Section 4980B and ERISA
Sections 601 through 608.
“
COBRA Beneficiary
” means an individual who is
receiving or who is entitled to receive COBRA coverage.
“
Code
” means the Internal Revenue Code of
1986, as amended, including any proposed, temporary or final regulation and
other regulatory guidance in force under that provision.
“
Contract
” means any contract, agreement,
lease, purchase and/or commitment, license, consensual obligation, promise or
undertaking (whether written or oral and whether express or implied) that is
legally binding on any Person or any part of its property under Applicable Law,
including all claims or rights against any Person, choses in action and similar
rights, whether accrued or contingent with respect to any such contract,
agreement, lease, purchase and/or commitment, license, consensual obligation,
promise or undertaking, but excluding this Agreement and the Separation
Agreement, save as otherwise expressly provided in this Agreement or in the
Separation Agreement.
“
Distribution
” means the distribution of all of
the outstanding shares of VPG Common Stock and VPG Class B Common Stock to the
holders of Vishay Common Stock and Vishay Class B Common Stock,
respectively.
“
Distribution Date
” means the date determined by the
Board of Directors of Vishay as the date on which the Distribution shall be
effected.
“
ERISA
” means the Employee Retirement
Income Security Act of 1974, as amended, including any proposed, temporary or
final regulation and other regulatory guidance in force under that
provision.
“
Existing VPG Benefit
Plans
” means the
Benefit Plans sponsored or maintained by members of the VPG Group in the United
States as of December 31, 2009 which are listed on Schedule A to this Agreement.
“
FSA Plan
” means a health care flexible
spending account plan or dependent care flexible spending account plan.
“
Governmental
Authority
” means
any U.S. or non-U.S. federal, state, local, foreign or international court,
arbitration or mediation tribunal, government, department, commission, board,
bureau, agency, official or other regulatory, administrative or governmental
authority.
“
Group
” means the Vishay Group or the VPG
Group, as the context requires.
2
“
Health and Welfare
Plans
” means
benefit plans providing health, life, dental, vision, prescription drug,
short-term disability, long-term disability, and/or educational assistance
coverage.
“
Liability
” means, with respect to any Person,
any and all losses, claims, charges, debts, demands, actions, causes of action,
suits, damages, obligations, payments, costs and expenses, sums of money,
accounts, reckonings, bonds, specialties, indemnities and similar obligations,
exoneration covenants, obligations under Contracts, controversies, doings,
omissions, variances, guarantees, make whole agreements and similar obligations,
and other liabilities and requirements, including all contractual obligations,
whether absolute or contingent, matured or unmatured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, joint or several, whenever
arising, and including those arising under any Applicable Law, Action,
threatened or contemplated Action (including the costs and expenses of demands,
assessments, judgments, settlements and compromises relating thereto and
attorneys’ fees and any and all costs and expenses, whatsoever reasonably
incurred in investigating, preparing or defending against any such Actions or
threatened or contemplated Actions) or order of any Governmental Authority or
any award of any arbitrator or mediator of any kind, and those arising under any
Contract, in each case, whether or not recorded or reflected or otherwise
disclosed or required to be recorded or reflected or otherwise disclosed, on the
books and records or financial statements of any Person, including any Liability
for Taxes
“
Measurement Group
” means Vishay Measurements Group,
Inc., a Wholly-owned Subsidiary of VPG.
“
MGF Business
” means the measurements and foil
resistor business owned and operated, indirectly or directly, by Vishay prior to
the Distribution, to be owned and operated, directly or indirectly, by VPG after
the Distribution.
“
Parties
” shall have the meaning assigned
thereto in the preamble to this Agreement.
“
Per Share Market
Value
” has the
meaning assigned thereto in Section 5.2.
“
Person
” means an individual, a
partnership, a corporation, a limited liability company, an association, a joint
stock company, a trust, a joint venture, an unincorporated organization or a
Governmental Authority.
“
QDRO
” has the meaning assigned thereto
in Section 3.1(c).
“
Separation
” means the multi-step process
described in Article II of the Separation Agreement by which the MGF Business
shall be transferred, directly or indirectly, from Vishay and members of the
Vishay Group to VPG and members of the VPG Group.
“
Separation
Agreement
” has
the meaning assigned thereto in the recitals to this Agreement.
“
Subsidiary
” of any Person means a corporation
or other organization whether incorporated or unincorporated of which at least a
majority of the securities or interests having by the terms thereof ordinary
voting power to elect at least a majority of the board of directors or others
performing similar functions with respect to such corporation or other
organization is directly or indirectly owned or controlled by such Person or by
any one or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries;
provided
,
however
, that no Person that is not
directly or indirectly wholly-owned by any other Person shall be a Subsidiary of
such other Person unless such other Person controls, or has the right, power or
ability to control, that Person.
3
“
Taxes
” has the meaning set forth in the
Tax Sharing Agreement, substantially in the form set forth as Exhibit E to the
Separation Agreement.
“
Transfer Date
” means, with respect to any Vishay
Employee, the date such Vishay Employee becomes a VPG Employee. In the case of
employees of the Measurements Group who participated in any Vishay Benefit Plans
and who cease to participate in such Vishay Benefit Plans and commence
participation in the corresponding VPG Benefit Plans, the date of such transfer
to VPG Benefit Plans shall be treated as such individuals’ Transfer Date
“
Vishay
” has the meaning assigned thereto
in the preamble to this Agreement.
“
Vishay 401(k)
Plan
” means the
Vishay Employee Savings Plus Plan.
“
Vishay Benefit
Plan
” means, at
any relevant time, any Benefit Plan sponsored, maintained or contributed to by
any member of the Vishay Group.
“
Vishay Class B Common
Stock
” means the
outstanding shares of Class B common stock, $0.10 par value, of Vishay.
“
Vishay Common
Stock
” means the
outstanding shares of common stock, $0.10 par value, of Vishay.
“
Vishay Employee
” means any individual who, at the
relevant time, is, or is expected to be, employed by Vishay or any member of the
Vishay Group, including active employees and employees on vacation and approved
leave of absence (including maternity, paternity, family, sick leave, qualified
military service under the Uniformed Services Employment and Reemployment Rights
Act of 1994, short- or long-term disability leave, leave under the Family
Medical Leave Act and other approved leave).
“
Vishay FSA Plan
” has the meaning assigned thereto
in Section 4.2(a).
“
Vishay Group
” means Vishay and each Subsidiary
of Vishay and each other Person that is or is anticipated to be controlled
directly or indirectly by Vishay immediately after the Distribution,
provided
that the Vishay Group shall not
include any member of the VPG Group.
“
Vishay KEWAP
” means the Vishay Intertechnology,
Inc. Deferred Compensation Plan, also referred to as the Vishay Key Employee
Wealth Accumulation Plan.
“
Vishay NQDB Plan
” means the Vishay Non-qualified
Retirement Plan.
4
“
Vishay
Participant
”
means a participant in a Vishay Benefit Plan who, at the relevant time, is (i) a
Vishay Employee, (ii) a former Vishay Employee who is not a VPG Employee, or
(iii) a beneficiary, dependent or alternate payee of any of the
foregoing.
“
Vishay Retirement
Plan
” means The
Vishay Retirement Plan, a qualified, defined benefit plan.
“
Vishay Service
Programs/Policies
” means, collectively, the Vishay vacation, short-term disability and
other Vishay programs and policies to the extent eligibility for or the level of
benefits thereunder depends on length of service.
“
Vishay Welfare
Plan
” has the
meaning assigned thereto in Section 4.1(a).
“
VPG
” has the meaning assigned thereto
in the preamble to this Agreement.
“
VPG 401(k) Plan
” has the meaning assigned thereto
in Section 3.1(b).
“
VPG Benefit Plan
” means any Benefit Plan sponsored,
maintained or contributed to by any member of the VPG Group.
“
VPG Class B Common
Stock
” means the
outstanding shares of Class B common stock, $0.10 par value, of VPG.
“
VPG Common Stock
” means the outstanding shares of
common stock, $0.10 par value, of VPG.
“
VPG Employee
” means any individual who, at the
relevant time, is employed by VPG or any member of the VPG Group, including
active employees and employees on vacation and approved leave of absence
(including maternity, paternity, family, sick leave, qualified military service
under the Uniformed Services Employment and Reemployment Rights Act of 1994,
short- or long-term disability leave, leave under the Family Medical Leave Act
and other approved leave).
“
VPG FSA Plans
” has the meaning assigned thereto
in Section 4.2(b).
“
VPG Group
” means VPG and each Subsidiary of
VPG and each other Person that is or is anticipated to be controlled directly or
indirectly by VPG immediately after the Distribution.
“
VPG KEWAP
” has the meaning assigned thereto
in Section 3.2(b).
“
VPG NQDP Plan
” has the meaning assigned thereto
in Section 3.4(b).
“
VPG Participant
” means any individual who, at the
relevant time, is (i) a VPG Employee or (ii) a beneficiary, dependent or
alternate payee of a VPG Employee.
“
VPG Service
Programs/Policies
” means, collectively, the VPG vacation, short-term disability and other
VPG programs and policies to the extent eligibility for or the level of benefits
thereunder depends on length of service.
5
“
VPG Stock Incentive
Program
” means
the Vishay Precision Group, Inc. 2010 Stock Incentive Program.
“
VPG Welfare Plan
” has the meaning assigned thereto
in Section 4.1(b).
“
Wholly-owned
Subsidiary
” of a
Person means a Subsidiary of that Person substantially all of whose voting
securities and outstanding equity interest are owned either directly or
indirectly by such Person or one or more of its Subsidiaries or by such Person
and one or more of its Subsidiaries.
ARTICLE II
GENERAL PRINCIPLES
Section 2.1
Transfer of
Employees
. Prior
to the Distribution Date, to the extent not previously transferred, all Vishay
Employees that are or as of the Distribution Date are expected to be, primarily
employed in the MGF Business, as well as any other Vishay Employees that Vishay
and VPG determine should become VPG Employees, shall be transferred to the VPG
Group, it being acknowledged that most such employees who were not previously
employed by the VPG Group were transferred effective January 1, 2010.
Notwithstanding the foregoing, any such employees who are on an approved leave
of absence (including maternity, paternity, family, sick leave, qualified
military service under the Uniformed Services Employment and Reemployment Rights
Act of 1994, short-term or long-term disability leave, leave under the Family
Medical Leave Act and other approved leave) prior to and as of the Distribution
Date shall not be transferred to VPG or a member of the VPG Group unless and
until they return to work. Such transfer shall not be treated as a separation
from service for purposes of any Vishay Benefit Plan or any agreement (or any
benefit thereunder) which is subject to the provisions of Section 409A of the
Code.
Section 2.2
Assumption and Retention of
Liabilities
.
(a)
As of the Distribution Date, except
as otherwise expressly provided for in this Agreement or any other agreement by
and between the Parties, and/or their Affiliates, Vishay shall, or shall cause
one or more other members of the Vishay Group to, retain and Vishay hereby
agrees to pay, perform, fulfill and discharge, in due course in full: (i) all
Liabilities under all Vishay Benefit Plans with respect to the Vishay Employees;
and (ii) any other Liabilities or obligations expressly assigned to Vishay or
any other member of the Vishay Group under this Agreement.
(b)
From time to time after the
Distribution Date, VPG shall promptly reimburse Vishay, upon Vishay’s reasonable
request and the presentation by Vishay of such substantiating documentation as
VPG shall reasonably request, for the cost of any obligations or Liabilities
satisfied or assumed by Vishay or the Vishay Group following the Distribution
Date that are, or that have been made pursuant to this Agreement, the
responsibility of VPG or the VPG Group. Except as otherwise provided in this
Agreement, any such request for reimbursement must be made by Vishay not later
than the first anniversary of the Distribution Date, unless the obligations and
Liabilities extend beyond the first anniversary.
6
(c)
From time to time after the
Distribution Date, Vishay shall promptly reimburse VPG, upon VPG’s reasonable
request and the presentation by VPG of such substantiating documentation as
Vishay shall reasonably request, for the cost of any Liabilities satisfied or
assumed following the Distribution Date by VPG or the VPG Group that are, or
that have been made pursuant to this Agreement, the responsibility of Vishay or
the Vishay Group. Except as otherwise provided in this Agreement, any such
request for reimbursement must be made by VPG not later than the first
anniversary of the Distribution Date, unless the obligations and Liabilities
extend beyond the first anniversary.
Section 2.3
Existing VPG Benefit
Plans
. Anything
to the contrary in this Agreement notwithstanding, if a VPG Employee is a
participant in an Existing VPG Benefit Plan, including without limitation any
Benefit Plan sponsored or maintained by Measurements Group, then VPG or another
member of the VPG Group may either continue the participation of the VPG
Employee in such
Existing VPG Benefit Plan or transfer participation of the VPG Employee, and the
assets attributable to the VPG Employee’s participation in such plan, to a
comparable VPG Benefit Plan contemplated by this Agreement, provided that the
comparable VPG Benefit Plan shall have terms and conditions no less favorable to
the VPG Employee than under the Existing VPG Benefit Plan. Except to the extent
of transfers of participation contemplated in the previous sentence, all
Existing VPG Benefit Plans, including Benefit Plans sponsored or maintained by
Measurements Group, shall continue in effect as of the Distribution Date, and no
changes in any such Benefit Plans shall be made on account of the Distribution.
Section 2.4
VPG Employee Participation in Vishay
Benefit Plans
.
Except as otherwise expressly provided for in this Agreement or as otherwise
expressly agreed to in writing between the Parties, each Vishay Employee who
becomes a VPG Employee shall cease to actively participate in, be covered by,
accrue benefits under, be eligible to contribute to or have any rights as an
active participant under any Vishay Benefit Plan effective as of a date on or
after such VPG employee’s Transfer Date, but in no event later than the
Distribution Date.
Section 2.5
Service Credit
. VPG, directly or through one or
more other members of the VPG Group, shall cause the VPG Service
Programs/Policies and the VPG Benefit Plans to provide each Vishay Employee who
becomes a VPG Employee credit for all purposes, including eligibility, vesting,
determination of benefit levels, and benefit accruals under the applicable VPG
Service Programs/Policies and VPG Benefit Plans for such VPG Employee’s service
with any member of the Vishay Group to the same extent such service was
recognized by the corresponding Vishay Service Programs/Policies and Vishay
Benefit Plans; provided that such service shall not be recognized to the extent
that such recognition would result in the duplication of benefits.
Section 2.6
Vacation and Other Time-Off
Benefits
. VPG or
another applicable member of the VPG Group shall credit each individual who
becomes a VPG Employee on or before the Distribution Date with the amount of
accrued but unused vacation time and other time-off benefits as such VPG
Employee had with the Vishay Group on the applicable Transfer Date. The VPG
Employees for whom VPG provides vacation and other time-off credits as described
above shall not have a right to a cash payment for their accrued but unused
vacation time (including banked vacation time) or other time-off benefits as a
result of their ceasing to be Vishay Employees.
7
Section 2.7
Measurements Group
Employees
.
Employees of the Measurements Group that participated in any Vishay Benefit
Plans will cease to participate in such Vishay Benefit Plans and commence
participation in the corresponding VPG Benefit Plans as of or on a date prior to
the Distribution Date, and such date shall be treated as such individuals’
Transfer Date for the purpose of this transfer to the VPG Benefit Plans.
ARTICLE III
RETIREMENT PLANS
Section 3.1
401(k) Plans
.
(a)
Vishay 401(k)
Plan
. Except as
provided in Section 3.1(c) below, following the Distribution Date the Vishay
Group shall retain all obligations and Liabilities under, or with respect to,
the Vishay 401(k) Plan.
(b)
VPG 401(k) Plan
. Effective on or about March 1,
2010, VPG has, or has caused another member of the VPG Group to, establish a
qualified defined contribution retirement plan and trust for the benefit of VPG
Participants (the “
VPG 401(k) Plan
”). VPG shall be responsible for
taking all necessary, reasonable and appropriate action to maintain and
administer the VPG 401(k) Plan so that it is qualified under Code Section 401(a)
and the trust thereunder is and continues to be exempt under Code Section
501(a). VPG (acting directly or through other members of the VPG Group) shall be
responsible for any and all Liabilities and other obligations with respect to
the VPG 401(k) Plan. As of the date of the establishment of the VPG 401(k) Plan
and through the Distribution Date, the VPG 401(k) Plan shall include terms that
are substantially the same as the terms of the Vishay 401(k) Plan.
(c)
Transfer of Vishay 401(k) Plan
Assets
. On an
Account Transfer Date within a reasonable period of time before the Distribution
Date, Vishay shall cause the accounts and underlying assets and Liabilities
(including any outstanding loan balances and any qualified domestic relations
orders (“
QDROs
”)) in the Vishay 401(k) Plan
attributable to VPG Employees who are employed by VPG as of the Account Transfer
Date and all of the assets in the Vishay 401(k) Plan trust related thereto to be
transferred (based on the investments in place on or as soon as administratively
practicable before the Account Transfer Date) to the VPG 401(k) Plan, and VPG
shall cause the VPG 401(k) Plan and trust to accept such transfer of accounts
and underlying assets, Liabilities, loans and QDROs. Effective as of the date of
such transfer, VPG shall cause the VPG 401(k) Plan to assume and to fully
perform, pay and discharge all obligations of the Vishay 401(k) Plan relating to
the accounts of VPG Participants as of the Account Transfer Date, to the extent
the assets, liabilities, loans and QDROs related to those accounts are actually
transferred from the Vishay 401(k) Plan to the VPG 401(k) Plan, and the VPG
401(k) Plan shall satisfy all protected benefit requirements under the Code,
ERISA and Applicable Law with respect to the transferred accounts. The transfer
of assets shall be conducted in accordance with Code Section 414(l), Treasury
Regulation Section 1.414(1)-1, and ERISA Section 208. The Vishay 401(k) Plan
accounts of individuals who become VPG Employees after the Account Transfer Date
shall be governed by the terms of the Vishay 401(k) Plan.
(d)
Continuation of
Elections
. The
VPG 401(k) Plan shall recognize and maintain Vishay 401(k) Plan elections or
designations, including participant deferral elections, investment elections,
beneficiary designations, and the rights of alternate payees under QDROs with
respect to VPG Participants, to the extent such elections or designations are
available under the VPG 401(k) Plan and continued pursuant to procedures adopted
under the VPG 401(k) Plan.
8
(e)
Contributions through the Account
Transfer Date
.
All contributions, including employer matching contributions, payable to the
Vishay 401(k) Plan through the applicable Transfer Date with respect to employee
deferrals and contributions for Vishay Employees who become VPG Employees on or
before the Account Transfer Date, determined in accordance with the terms and
provisions of the Vishay 401(k) Plan, ERISA and the Code, shall be paid by
Vishay or another member of the Vishay Group to the Vishay 401(k) Plan prior to
the Account Transfer Date.
Section 3.2
KEWAPs
.
(a)
Vishay Key Employee Wealth
Accumulation Plan
. Except as provided in Section 3.2(c) below, following the Distribution
Date the Vishay Group shall retain all obligations and Liabilities under, or
with respect to, the Vishay KEWAP.
(b)
VPG Key Employee Wealth Accumulation
Plan
. Effective
on or about January 1, 2010, VPG has, or has caused another member of the VPG
Group to, establish a non-qualified deferred compensation plan (the
“
VPG KEWAP
”) to benefit, on a prospective
basis, VPG Employees who participated in the Vishay KEWAP immediately prior to
their transfer to the VPG Group and other eligible VPG Employees. Effective
prior to the Distribution Date, VPG will, or will cause another member of the
VPG Group to, establish a rabbi trust with respect to the VPG KEWAP.
(c)
Transfer of Vishay KEWAP Accounts
and Rabbi Trust Amounts
. On an Account Transfer Date within a reasonable period of time before
the Distribution Date, Vishay shall cause the accounts in the Vishay KEWAP
attributable to VPG Employees who are employed as of the Account Transfer Date
and the amounts in the Vishay KEWAP rabbi trust related thereto to be
transferred (based on the investments in place on or as soon as administratively
practicable before the Account Transfer Date) to the VPG KEWAP. VPG shall cause
the VPG KEWAP and the VPG KEWAP rabbi trust to accept such transfer of accounts
and associated amounts and, effective as of the Account Transfer Date, to assume
and to fully perform, pay and discharge all obligations of the Vishay KEWAP
relating to the accounts of VPG Participants as of the Account Transfer Date, to
the extent the amounts related to those accounts are actually transferred from
the Vishay KEWAP to the VPG KEWAP. The account balances in the Vishay KEWAP of
any Vishay Employee or former Vishay Employee who becomes a VPG Employee after
the Account Transfer Date, shall remain in the Vishay KEWAP, and shall continue
to be governed by the terms of the Vishay KEWAP.
(d)
Continuation of
Elections
. The
VPG KEWAP will recognize and maintain Vishay KEWAP elections or designations,
including participant deferral elections (to the extent possible), investment
elections, beneficiary designations, and the rights of alternate payees under
QDROs with respect to VPG Employees, to the extent such elections or
designations are available under the VPG KEWAP and continued pursuant to
procedures adopted under the VPG KEWAP.
9
(e)
Credits and Contributions through
the Transfer Date
. All amounts scheduled to be credited to the Vishay KEWAP and
contributed to the related rabbi trust through the applicable Transfer Date with
respect to Vishay Employees who become VPG Employees on or before the Account
Transfer Date, determined in accordance with the terms and provisions of the
Vishay KEWAP, ERISA and the Code, shall be credited and paid by Vishay or
another member of the Vishay Group to the Vishay KEWAP and the related rabbi
trust prior to the Account Transfer Date.
Section 3.3
Vishay Retirement
Plan
. Following
the Distribution Date, the Vishay Group shall retain all obligations and
Liabilities under, or with respect to, the Vishay Retirement Plan. Any accrued
benefits of VPG Employees under Vishay Retirement Plan shall remain with the
Vishay Retirement Plan and shall be governed by the terms and conditions of the
Vishay Retirement Plan. Vishay Employees who separate from service with the
Vishay Group to become VPG Employees shall become eligible for distribution of
their benefits under the Vishay Retirement Plan in accordance with that plan’s
terms and administrative procedures. The Vishay Group shall be responsible for
any notices, forms and filings that are required to be furnished to a
governmental agency as a result of the Distribution.
Section 3.4
NQDB Plans
.
(a)
Vishay NQDB Plan
. Except as provided in Section
3.4(c) below, following the Distribution Date the Vishay Group shall retain all
obligations and Liabilities under, or with respect to, the Vishay NQDB
Plan.
(b)
VPG NQDB Plan
. Effective as of January 1, 2010,
VPG established a non-qualified defined benefit retirement plan (the “VPG NQDB
Plan”) to maintain the accounts of VPG Participants who had accounts in the
Vishay NQDB Plan immediately prior to the Distribution Date. Effective prior to
the Distribution Date, VPG will, or will cause another member of the VPG Group
to, establish a rabbi trust with respect to the VPG NQDB Plan.
(c)
Transfer of Vishay NQDB Plan
Accounts and Rabbi Trust Amounts
. On an Account Transfer Date within
a reasonable period of time before the Distribution Date, Vishay shall cause the
accounts in the Vishay NQDB Plan attributable to VPG Employees who are employed
by the VPG Group as of the Account Transfer Date and the amounts in the Vishay
NQDB Plan rabbi trust related thereto to be transferred (based on the
investments in place on or as soon as administratively practicable before the
Account Transfer Date) to the VPG NQDB Plan. VPG shall cause the VPG NQDB Plan
and the VPG NQDB Plan rabbi trust to accept such transfer of accounts and
associated amounts and, effective as of the Account Transfer Date, to assume and
to fully perform, pay and discharge all obligations of the Vishay NQDB Plan
relating to the accounts of VPG Participants as of the Account Transfer Date, to
the extent the amounts related to those accounts are actually transferred from
the Vishay NQDB Plan to the VPG NQDB Plan. The account balances in the Vishay
NQDB Plan of Vishay Employees or former Vishay Employees who become VPG
Employees after the Account Transfer Date shall remain in the Vishay NQDB Plan,
and shall continue to be governed by the terms of the Vishay NQDB
Plan.
10
ARTICLE IV
HEALTH AND WELFARE
PLANS
Section 4.1
VPG Welfare Plans
.
(a)
Vishay Welfare
Plan
. Following
the Distribution Date, the Vishay Group shall retain all obligations and
Liabilities under, or with respect to, the Health and Welfare Benefit Plans
maintained for the benefit of Vishay Employees (the “
Vishay Welfare Plans
”).
(b)
Establishment of VPG Welfare
Plans
. Effective
as of or before the Distribution Date, VPG will, or will cause or a member of
the VPG Group to, establish one or more Health and Welfare Benefit Plans for the
benefit of eligible VPG Participants (the “
VPG
Welfare Plans
”), who, as of the date of their
transfer to the VPG Group, are participants in the Vishay Welfare Plans. The VPG
Welfare Plans shall provide health, life, dental, vision, prescription drug,
short-term disability, long-term disability, and educational assistance coverage
benefits prior to and as of the Distribution Date on terms substantially the
same as are provided under the Vishay Welfare Plans.
(c)
Terms of Participation in VPG
Welfare Plans
.
The VPG Welfare Plans shall (i) waive all limitations as to preexisting
conditions, exclusions, and service conditions with respect to participation and
coverage requirements applicable to VPG Employees, other than limitations that
were in effect with respect to participants as of the applicable Transfer Date
under the corresponding Vishay Welfare Plan, (ii) waive any waiting period
limitation or evidence of insurability requirement that would otherwise be
applicable to a VPG Employee following the applicable Transfer Date to the
extent such VPG Participant had satisfied any similar limitation under the
corresponding Vishay Welfare Plan, and (iii) honor any deductibles,
out-of-pocket maximums and co-payments incurred by VPG Employees under the
corresponding Vishay Welfare Plan in satisfaction of the applicable deductibles,
out-of-pocket expenses or co-payments under such Vishay Welfare Plan for
calendar year 2010.
Section 4.2
FSA Plans
.
(a)
Vishay FSA Plans
. Except as provided in Section
4.2(c) below, following the Distribution Date the Vishay Group shall retain all
obligations and Liabilities under, or with respect to, the FSA Plans of the
Vishay Group (the “
Vishay FSA Plans
”).
(b)
VPG FSA Plans
. Effective as of January 1, 2010,
VPG has, or has caused another member of the VPG Group to, establish one or more
health care and dependent care FSA Plans (the “
VPG FSA Plans
”). The VPG FSA Plans shall provide
benefits prior to and as of the Distribution Date that are substantially the
same as provided under the Vishay FSA Plans.
11
(c)
To the extent that the Transfer Date
of a VPG Employee occurs between January 1, 2010 and the Distribution Date, the
VPG FSA Plans shall reimburse medical expenses incurred by the VPG Employees at
any time during the Vishay FSA Plans’ plan year (including claims incurred but
unpaid prior to the Distribution Date), up to the amount of the individual’s
election and reduced by amounts previously reimbursed by the corresponding
Vishay FSA Plan. The debit and credit account balances, if any, of any such VPG
Employee under the Vishay FSA Plans shall be transferred within a reasonable
period prior to the Distribution Date to the VPG FSA Plans and shall thereafter
be administered in accordance with the terms of the VPG FSA Plans. If a VPG
Employee whose account is transferred to the VPG FSA Plans receives
reimbursements that exceed the amount he or she has contributed under the
corresponding Vishay FSA Plan as of the applicable Transfer Date, irrespective
of whether such payment was made before or after such Transfer Date, VPG or
another member of the VPG Group shall collect that VPG Employee’s payroll
contributions in accordance with the VPG FSA Plans’ procedures and remit them on
a monthly basis to Vishay until Vishay has recouped the total reimbursements
paid to or for that VPG Employee under the applicable Vishay FSA Plan for the
year;
provided
that such contributions and remittances shall
cease upon the VPG Employee’s cessation of participation in the applicable VPG
FSA Plan. Balances in any Vishay FSA Plan of any Vishay Employee who becomes a
VPG Employee after the Distribution Date will not be transferred to the
corresponding VPG FSA Plan and will be treated in accordance with the terms and
procedures of the Vishay FSA Plans.
Section 4.3
Claims
.
(a)
General
. Vishay, acting directly or through any other
member of the Vishay Group, shall cause each Vishay Welfare Plan to fully
perform, pay and discharge, within the timeframes applicable under such plan,
all claims that arise with respect to VPG Participants under the Vishay Welfare
Plan until the applicable Transfer Date and (ii) VPG, acting directly or through
any other member of VPG Group, shall cause the corresponding VPG Welfare Plan to
fully perform, pay and discharge, within the timeframes applicable under such
plan, all claims that arise under such VPG Welfare Plan on and after the
applicable Transfer Date.
(b)
Claim Arisen Definition
. For purposes of this Section 4.3, a claim is
deemed to arise (i) with respect to medical, dental and/or vision benefits, upon
the rendering of health services giving rise to such claim; (ii) with respect to
prescription drug benefits, upon the purchase of the prescription drug; (iii)
with respect to disability benefits, upon the date of an individual’s
disability, as determined by the disability benefit insurance carrier or claim
administrator, giving rise to such claim; (iv) with respect to a period of
continuous hospitalization, upon the date of admission to the hospital; and (v)
with respect to death benefits, on the date of death.
Section 4.4
Advances
. VPG shall reimburse Vishay for the amount of
any advances made by Vishay or any other member of the Vishay Group prior to the
applicable Transfer Date under any Benefit Plan or otherwise to the extent that
such advance relates to service on or after the applicable Transfer Date or that
under the terms of the Agreement is a Liability of the VPG Group.
Section 4.5
Workers’ Compensation
Liabilities
.
(a)
Pre-Transfer Claims
. The VPG Group shall be responsible for any
workers’ compensation Liability up to the amount accrued on its balance sheet on
the Transfer Date. The VPG Group shall not assume, retain or otherwise be
responsible for any workers' compensation Liability in excess of the amount
accrued relating to, arising out of, or resulting from a compensable injury or
disease of a VPG employee before the applicable Transfer Date.
12
(b)
Post- Transfer Claims
. All workers’ compensation Liabilities
relating to, arising out of, or resulting from any compensable injury or
occupational disease of a VPG Employee occurring on or after the applicable
Transfer Date shall be the responsibility of the VPG Group.
(c)
General
. For purposes of this Section 4.6, a
compensable injury shall be deemed to occur upon the occurrence of the event
giving rise to eligibility for workers’ compensation benefits and an occupation
disease shall be deemed to occur when it first becomes manifest. Vishay and VPG
shall cooperate in good faith with respect to the notification to appropriate
Governmental Authorities in order to facilitate the issuance of new, or the
transfer of existing, workers’ compensation insurance policies and claims
handling contracts occasioned by reason of the separation.
ARTICLE V
EQUITY AWARDS
Section 5.1
Approval of VPG Plan by Vishay as Majority
Shareholder
. Effective
prior to the Distribution Date, VPG shall adopt the VPG Stock Incentive Program.
Vishay, as VPG’s sole shareholder, shall approve the VPG Stock Incentive Program
prior to the Distribution Date. Vishay shall, or shall cause VPG to, register
all shares of VPG Common Stock issuable under the VPG Stock Incentive Program on
Form S-8 (or any successor form promulgated by the Securities and Exchange
Commission under the Securities Act of 1933, as amended) prior to the
Distribution Date.
Section 5.2
Phantom Stock and Restricted Stock
Units
.
(a)
Number of Shares
. Effective as of the Separation, Vishay shall
amend each outstanding grant of phantom stock granted pursuant to the Vishay
Intertechnology Inc. Senior Executive Phantom Stock Plan and each outstanding
grant of restricted stock units (both those subject to ordinary vesting and
those restricted stock units subject to performance-based vesting, sometimes
referred to as performance stock units) granted pursuant to the Vishay
Intertechnology, Inc. 2007 Stock Incentive Program, as amended and restated
effective April 2008, to increase the number of shares of phantom stock and the
number of restricted stock units applicable to such grants. The aggregate number
of shares of phantom stock and restricted stock units outstanding following the
Separation shall be determined according to the following formula:
N
Vs
=
N
V
x
[1 + r
x
P
Ms
/ P
Vs
],
|
where
|
|
|
N
Vs
|
|
is the
number of shares of Vishay Common Stock underlying the restricted stock
units or phantom shares following the Distribution Date;
|
|
|
|
|
|
N
V
|
|
is the
number of shares Vishay Common Stock underlying the restricted stock units
or phantom shares prior to the Distribution Date;
|
|
|
|
|
|
P
Ms
|
|
is the
Per Share Market Value of VPG Common Stock following the Distribution
Date;
|
13
|
P
Vs
|
|
is the Per Share Market
Value of Vishay Common Stock following the Distribution Date;
and
|
|
|
|
|
|
r
|
|
is the distribution ratio
for the Distribution.
|
“
Per Share Market Value
” of the VPG Common Stock or the Vishay Common
Stock means the average Daily Market Price of the respective security for the
first ten (10) consecutive trading days following the Distribution Date.
“
Daily Market Price
” for a security on any trading day means the
volume-weighted average of the per share selling prices of the security on the
New York Stock Exchange or other principal United States securities exchange or
inter-dealer quotation system on which the security is then listed or quoted;
or, if there are no reported sales of the security on a trading day, the average
of the high bid and low ask price for the security on such trading day; or, if
there are no high bid and low ask prices on such trading day, the Daily Market
Price shall be the per share fair market value of the security as determined by
the board of directors of the issuer of the security in good faith.
(b)
Performance Goals
. Effective as of the Separation, Vishay shall
amend each outstanding grant of performance stock units (restricted stock units
that are subject to performance-based vesting) granted pursuant to the Vishay
Intertechnology, Inc. 2007 Stock Incentive Program, as amended and restated
effective April 2008, to reduce by 10% the numeric value of each applicable
performance goal that applies to periods following the Separation.
Section 5.3
Stock Options
.
(a)
Stock Options Held by Vishay
Employees
. Effective as of
the
Distribution Date, Vishay
will amend each outstanding grant of stock options made pursuant to the Vishay
Intertechnology, Inc. 1998 Stock Option Program, the Vishay Intertechnology,
Inc. 2007 Stock Incentive Program, as amended and restated effective April 2008,
and the Amended and Restated 1998 Long-Term Incentive Plan of General
Semiconductor, Inc. to reduce the exercise price of each of the stock options
and increase the number of shares issuable upon exercise of each of the stock
options according to the following formulas:
E
Vs
|
=
|
E
V
x
P
Vs
/ (P
Vs
+ r
x
P
Ps
)
|
|
|
|
and
|
|
|
|
|
|
N
Vs
|
=
|
N
V
x
E
V
/ E
Vs
|
where
|
|
|
|
|
|
E
V
|
|
is the per share exercise price of the
Vishay stock option prior to the Distribution Date;
|
|
|
|
|
|
|
|
N
V
|
|
is the number of shares of Vishay Common
Stock issuable upon exercise of the stock option prior to the Distribution
Date;
|
|
|
|
|
|
E
Vs
|
|
is the per share exercise price of the
Vishay stock option following the Distribution Date;
|
|
|
|
|
|
|
|
P
Vs
|
|
is the Per Share Market Value of Vishay
Common Stock following the Distribution
Date;
|
14
|
N
Vs
|
|
is the number of shares of Vishay Common Stock issuable upon
exercise of the stock option following the Distribution Date;
|
|
|
|
|
|
P
Ps
|
|
is
the Per Share Market Value of VPG Common Stock following the Distribution
Date; and
|
|
|
|
|
|
r
|
|
is
the distribution ratio for the
Distribution.
|
The other terms of the
Vishay stock options, including their remaining vesting schedule if any, shall
remain the same.
(b)
Stock Options Held by VPG
Employees
. Effective as of
the separation, VPG shall issue to VPG Employees who hold unvested Vishay stock
options that will be forfeited as a result of the Distribution stock options
under the VPG Stock Incentive Program in lieu of their Vishay stock options. In
addition, VPG shall offer to VPG Employees who hold vested Vishay stock options
the opportunity to replace those options with VPG stock options. In either case,
the exercise price of each of the VPG stock options and the number of shares of
VPG Common Stock issuable upon exercise of each of the stock options shall be
determined according to the following formulas:
E
Ps
|
=
|
E
V
x
P
Ps
/(P
Vs
+ (r
x
P
Ps
))
|
|
|
|
and
|
|
|
|
|
|
N
Ps
|
=
|
N
V
x
E
V
/ E
Ps
|
where
|
|
|
|
|
|
E
Ps
|
|
is the per share exercise price of the option to purchase VPG
Common Stock;
|
|
|
|
|
|
N
Ps
|
|
is the number of shares of VPG Common Stock issuable upon exercise
of the stock option; and
|
the other symbols have
the same values as those assigned above with respect to the formulas for
treatment of Vishay stock options.
The other terms of the
VPG stock options shall be the same as the Vishay stock options that they are
intended to replace. In the case of VPG stock options issued in lieu of
forfeited Vishay stock options, the vesting schedule for the VPG stock options
shall be the same as the remaining vesting schedule of the forfeited Vishay
stock options. If the exercise price of any VPG stock options is less than the
market value of VPG Common Stock on the date the stock options are issued, VPG
may issue the VPG stock options according to a different formula in order to
comply with regulations under Section 409A of the Code.
ARTICLE VI
NON-U.S. EMPLOYEES AND BENEFITS
As of or prior to the Distribution Date, to the extent not previously
transferred, all Vishay Employees that are resident outside of the United States
or otherwise are subject to non-U.S. law
that are or as of the Distribution Date are expected to be primarily
employed in the MGF Business, as well as any other such Vishay Employees that
Vishay and VPG determine should become VPG Employees shall be transferred to the
VPG Group. Such transfers, as well as the transfer of any related liabilities
and Benefit Plans or accounts under Benefit Plans, will be accomplished in
accordance with applicable law and custom in each location where such Vishay
Employees are located. To the extent known as of the date of this Agreement,
Schedule B hereto sets forth the actions that shall be taken in furtherance of
the provisions of this Section in each applicable jurisdiction.
15
ARTICLE VII
ADDITIONAL COMPENSATION MATTERS
Section 7.1
Vishay Individual
Arrangements
. Vishay
acknowledges and agrees that, except as otherwise provided herein, Vishay (or
another member of the Vishay Group) shall have full responsibility with respect
to any Liabilities and the payment or performance of any obligations arising out
of or relating to any employment, consulting, non-competition, retention or
other compensatory arrangement previously provided by any member of the Vishay
Group to any Vishay Participant, including life insurance policies not held in
any trust and covering any Vishay Participant. The Parties shall transfer or
assign to VPG or another member of VPG Group, and shall use commercially
reasonable efforts to cause their respective employees to consent to the
transfer or assignment of, the rights and Liabilities arising under any
agreements entered into between Vishay or another member of the Vishay Group and
VPG Employees who become VPG Employees prior to the Distribution Date and whose
agreements are not replaced with agreements with members of the VPG
Group.
Section 7.2
Severance Benefits
. Vishay and VPG acknowledge and agree that
the Separation and any transfer of employment from the Vishay Group to the VPG
Group by reason thereof will not constitute a termination of employment for
purposes of any policy, plan, program or agreement of Vishay or any member of
the Vishay Group that provides for the payment of severance, separation pay,
salary continuation or similar benefits in the event of a termination of
employment or a change in control. The Parties shall use their reasonable
commercial efforts to cause their respective employees to consent to the
amendment of any agreements entered into between Vishay or any other member of
the Vishay Group and VPG Employees who become VPG Employees prior to the
Distribution Date that are inconsistent with the preceding sentence.
Section 7.3
Not a Change in Control
. The Parties hereto acknowledge and agree
that the Separation will not constitute a “change in control” for purposes of
any Vishay Benefit Plan or VPG Benefit Plan.
Section 7.4
COBRA Coverage
.
(a)
VPG and the VPG Welfare Plan will assume responsibility for compliance
with COBRA with respect to any COBRA Beneficiary who is entitled to COBRA
coverage in respect of an individual who is a participant in a VPG Welfare Plan
on or before the Distribution Date. VPG and the VPG Welfare Plan will assume the
responsibility for such COBRA compliance effective as of the date that the VPG
Employee with respect of whom the COBRA Beneficiary is entitled to COBRA
coverage becomes covered by the applicable VPG Welfare Plan.
16
(b)
VPG and the VPG Welfare Plan will assume responsibility for compliance
with COBRA with respect to any COBRA Beneficiary who is entitled to COBRA
coverage in respect of such COBRA Beneficiary’s employment with a member of the
VPG Group on or before the Distribution Date. VPG and the VPG Welfare Plan will
assume the responsibility for such COBRA compliance effective as of the date
that the VPG Welfare Plan is established.
(c)
Vishay and the Vishay Welfare Plan will retain responsibility for
compliance with COBRA with respect to all other individuals who are receiving or
who are entitled to receive COBRA coverage.
Section 7.5
Tax Matters
.
(a)
Tax Deductions in General
. Subject to the provisions of Section 7.5(b),
the Parties agree to take the actions that are necessary or desirable to enable
the Party responsible for any payment under this Agreement to receive, to the
extent possible, the benefit of any tax deduction related to such payment. If
one Party receives a tax benefit as a result of any payment or benefit funded by
the other Party under this Agreement, the first Party shall reimburse the other
Party for that tax benefit at the time and to the extent that such tax benefit
is realized.
(b)
Equity-Based Compensation
Deductions
.
Notwithstanding the provisions of Section 7.5(a), the Parties agree that, to the
extent permitted by law, tax deductions for equity-based compensation described
in Section 5.3 shall be allocated to and claimed by the member or members of the
Vishay Group or the VPG Group, as the case may be, that employed the individual
receiving the compensation during the relevant vesting period based on the
number of months of such individual’s employment with such entity or
entities.
(c)
The member or members of a Group claiming any tax deduction on account of
compensation paid to a VPG Employee shall be responsible for any tax reporting
obligations, including but not limited to the filing of any required form W-2,
and payment of any taxes imposed upon the employer in respect of the
corresponding amounts, in proportion to the amount claimed as a deduction. The
Party in control of the payment of any such amounts shall be responsible for
effecting the withholding of any applicable income and employment tax
withholding required to be effected from any such payment. The Parties shall
cooperate with each other to facilitate any required tax reporting obligations,
including sharing, as relevant, information regarding amounts withheld from the
payments to the employees. To the extent deductions cannot be claimed in the
manner referenced in this Section 7.5(c), or are disallowed or adjusted on
audit, the entity that receives the tax benefit shall reimburse the entity that
would have received such tax benefit pursuant to the preceding sentence as and
when realized. To the extent such reimbursement is treated as taxable income,
the reimbursing party shall gross-up the reimbursement amount for
taxes.
(d)
Code Section 409A
. Notwithstanding anything in this Agreement
to the contrary, the Parties agree to cooperate to minimize the loss of
deductions and to utilize commercially reasonable best efforts to have the
applicable plans, programs and arrangements comply with Section 409A of the
Code.
17
ARTICLE
VIII
INDEMNIFICATION
Section 8.1
Indemnification by Vishay
. Vishay shall indemnify, defend and hold
harmless VPG, each other member of the Vishay Group and each of their respective
current and former directors, officers and employees, and each of the heirs,
executors, successors and assigns of any of the foregoing (collectively, the
“
VPG Indemnified Parties
”), from and against any and all Liabilities
of the VPG Indemnified Parties relating to, arising out of or resulting from any
breach of, or failure to perform or comply with, any covenant, undertaking or
obligation of, this Agreement by Vishay or any other member of the Vishay Group.
Section 8.2
Indemnification by VPG
.
VPG shall indemnify defend
and hold harmless Vishay, each of other member of the Vishay Group and each of
their respective current and former directors, officers and employees, and each
of the heirs, executors, successors and assigns of any of the foregoing
(collectively, the “
Vishay Indemnified Parties
”) from and against any and all Liabilities of
the Vishay Indemnified Parties relating to, arising out of or resulting from any
breach of, or failure to perform or comply with, any covenant, undertaking or
obligation of, this Agreement by VPG or any other member of the VPG Group.
Section 8.3
Procedures for Indemnification of
Claims
. Indemnification of
third party claims shall be governed by the procedures set forth in Section 5.6
of the Separation Agreement. Indemnification for direct claims shall be governed
by the procedures set forth in Section 5.7 of the Separation Agreement. Payment
shall be made in accordance with the provision of Section 5.8 of the Separation
Agreement. For the avoidance of doubt, the provisions of Section 5.5 of the
Separation Agreement shall not be applicable to claims under this Article 8.
ARTICLE IX
GENERAL AND ADMINISTRATIVE
Section 9.1
Sharing of Information
. Vishay and VPG, and the members of their
respective Groups, each shall provide to the other Party and its respective
agents and vendors all Information as the other may reasonably request to enable
the requesting Party to administer efficiently and accurately each of its
Benefit Plans and to determine the scope of, as well as fulfill, its obligations
under this Agreement. Such information shall, to the extent reasonably
practicable, be provided in the format and at the times and places requested,
but in no event shall the Party providing such information be obligated to incur
any out-of-pocket expenses not reimbursed by the Party making such request or
make such information available outside of its normal business hours and
premises. Any information shared or exchanged pursuant to this Agreement shall
be subject to the confidentiality requirements set forth in Sections 4.5 and 4.6
of the Separation Agreement. With respect to personal health information
(“
PHI
”) as defined in the administrative
regulations promulgated pursuant to the Health Insurance Portability and
Accountability Act of 1996, as amended, the Parties agree to comply with such
regulations, including, but not limited to, entering into any business associate
agreements that may be required for the sharing of PHI.
18
Section 9.2
Reasonable
Efforts/Cooperation
. Each
of the Parties hereto will use its commercially reasonable efforts to promptly
take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under Applicable Law and regulations to
consummate the transactions contemplated by this Agreement, including adopting
plans or plan amendments. Each of the Parties hereto shall provide reasonable
cooperation on any issue relating to the transactions contemplated by this
Agreement for which the other Party seeks a determination letter or private
letter ruling from the United States Internal Revenue Service, an advisory
opinion from the United States Department of Labor or any other filing, consent
or approval with respect to or by a Governmental Entity.
Section 9.3
Employer Rights
. Nothing in this Agreement shall prohibit VPG
or any other member of the VPG Group from amending, modifying or terminating any
VPG Benefit Plan at any time after the Distribution Date, within its sole
discretion. In addition, nothing in this Agreement shall prohibit Vishay or any
other member of the Vishay Group from amending, modifying or terminating any
Vishay Benefit Plan at any time, within its sole discretion.
Section 9.4
Effect on Employment
. Nothing in this Agreement is intended to
confer upon any employee or former employee of Vishay, VPG or any member of
their respective Group any right to continued employment, or any recall or
similar rights to an individual on layoff or any type of approved
leave.
Section 9.5
Consent of Third Parties
. If any provision of this Agreement requires
the consent of any third party, the Parties shall use their commercially
reasonable efforts to obtain such consent. If despite such efforts the consent
cannot be obtained, the Parties shall negotiate in good faith to modify the
applicable provision so as to effect the purposes and intents of this Agreement
to the extent reasonably possible notwithstanding the absence of such
consent.
Section 9.6
Beneficiary Designation/Release of
Information/Right to Reimbursement
. To the extent permitted by Applicable Law and except as otherwise
provided for in this Agreement, all beneficiary designations, authorizations for
the release of information and rights to reimbursement made by or relating to
VPG Employees under Vishay Benefit Plans shall be transferred to, and be in full
force and effect under, the corresponding VPG Benefit Plans until such
beneficiary designations, authorizations or rights are replaced or revoked by,
or no longer apply to, the applicable VPG Employee.
Section 9.7
Fiduciary Matter
. Vishay and VPG each acknowledge that the
transfer of account balances and assets from the Vishay 401(k) Plan to the VPG
401(k) Plan will be subject to fiduciary duties or standards of conduct under
ERISA or other Applicable Law, and no Party shall be deemed to be in violation
of this Agreement if it fails to comply with any provisions hereof based upon
its good faith determination (as supported by advice from counsel experienced in
such matters) that to do so would violate such a fiduciary duty or standard.
Each Party shall be responsible for taking such actions as are deemed necessary
and appropriate to comply with its own fiduciary responsibilities.
ARTICLE X
MISCELLANEOUS
Section 10.1
Termination
. Notwithstanding anything in this Agreement
to the contrary, if the Separation Agreement is not executed on or before
December 31, 2010 or if it terminates without the Separation having occurred,
this Agreement shall automatically terminate without
the action of any Party, and neither Party
shall have any Liability or further obligation to the other Party under this
Agreement.
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Section 10.2
Relationship of Parties
. This Agreement shall not be construed to
place the Parties in the relationship of legal representatives, partners, joint
venturers or agents of or with each other. No Party shall have any power to
obligate or bind the other Party in any manner whatsoever, except as
specifically provided herein.
Section 10.3
Groups
. Each of Vishay and VPG shall cause to be
performed, and hereby guarantees the performance of, all actions, agreements and
obligations set forth in this Agreement to be performed by the members of their
respective Groups.
Section 10.4
Notices
. All notices, demands and other
communications required to be given to a Party hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered, sent by a
nationally recognized overnight courier, transmitted by facsimile, or mailed by
registered or certified mail (postage prepaid, return receipt requested) to such
Party at the relevant street address, facsimile number or e-mail address set
forth below (or at such other street address, facsimile number or e-mail address
as such Party may designate from time to time by written notice in accordance
with this provision):
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If to Vishay, to:
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Vishay Intertechnology, Inc.
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63 Lancaster Avenue
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Malvern, PA 19355-2120
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Attention: Dr. Lior E. Yahalomi, Chief Financial
Officer
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Telephone: 610-644-1300
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Facsimile: 610-889-2161
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with a copy to:
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Kramer Levin Naftalis & Frankel LLP
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1177 Avenue of the Americas
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New York, NY 10036
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Attention: Abbe L. Dienstag, Esq.
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Telephone: 212-715-9100
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Facsimile: 212-715-8000
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If to VPG, to:
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Vishay Precision Group, Inc.
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3 Great Valley Parkway
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Malvern, PA 19355-1307
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Attention: William M. Clancy, Chief Financial Officer
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Telephone: 484-321-5300
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Facsimile: 484-321-5300
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with a copy to:
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Pepper Hamilton LLP
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3000 Two Logan Square
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Eighteenth and Arch Streets
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Philadelphia, Pennsylvania 19103-2799
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Attention: Barry Abelson, Esq.
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Telephone: 215-981-4000
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Facsimile: 215-981-4750
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20
Any notice, demand or
other communication hereunder shall be deemed given upon the first to occur of:
(i) the fifth (5
th
) day after deposit thereof, postage prepaid
and addressed correctly, in a receptacle under the control of the United States
Postal Service; (ii) transmittal by facsimile transmission to a receiver or
other device under the control of the Party to whom notice is being given; or
(iii) actual delivery to or receipt by the Party to whom notice is being given
or an employee or agent thereof.
Section 10.5
Entire Agreement
. This Agreement and the Exhibits hereto, as
well as any other agreements and documents referred to herein, constitute the
entire agreement between the Parties with respect to the subject matter hereof
and thereof and supersede all previous agreements, negotiations, discussions,
understandings, writings, commitments and conversations between the Parties with
respect to such subject matter. No agreements or understandings exist between
the Parties other than those set forth or referred to herein or therein.
Section 10.6
Waiver of Default.
(a)
Any term or provision of this Agreement may be waived, or the time for
its performance may be extended, by the Party or the Parties entitled to the
benefit thereof. Any such waiver shall be validly and sufficiently given for the
purposes of this Agreement if, as to any Party, it is in writing signed by an
authorized representative of such Party.
(b)
Waiver by any Party of any default by the other Party of any provision of
this Agreement shall not be construed to be a waiver by the waiving Party of any
subsequent or other default, nor shall it in any way affect the validity of this
Agreement or any Party hereof or prejudice the rights of the other Party
thereafter to enforce each and ever such provision. No failure or delay by any
Party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.
Section 10.7
Amendments
. No provisions of this Agreement shall be
deemed amended, modified or supplemented by any Party, unless such amendment,
supplement or modification is in writing and signed by the authorized
representative of the Party against whom it is sought to enforce such amendment,
supplement or modification.
Section 10.8
Governing Law
. This Agreement and the legal relations
between the Parties shall be governed by and construed in accordance with the
laws of the State of New York, without regard to the conflict of laws rules
thereof to the extent such rules would require the application of the law of
another jurisdiction.
21
Section 10.9
Dispute Resolution
. The procedures set forth in Article VIII of
the Separation Agreement shall apply to this resolution of all disputes arising
under this Agreement,
provided
,
however
, that the dispute resolution procedures set
forth in any Benefit Plan shall govern with respect to claims arising under such
Benefit Plan.
Section 10.10
Construction
. Any uncertainty or ambiguity with respect to
any provision of this Agreement shall not be construed for or against any Party
based on attribution of drafting by either Party. The headings contained herein
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. In this Agreement, unless a clear contrary
intention appears:
(a)
the singular number includes the plural number and vice versa;
(b)
reference to any Person includes such Person’s successors and assigns
but, if applicable, only if such successors and assigns are not prohibited by
this Agreement, and reference to a Person in a particular capacity excludes such
Person in any other capacity or individually;
(c)
reference to any gender includes each other gender;
(d)
reference to any agreement, document or instrument means such agreement,
document or instrument as amended, modified, supplemented or restated, and in
effect from time to time in accordance with the terms thereof subject to
compliance with the requirements set forth herein;
(e)
reference to any Applicable Law means such Applicable Law as amended,
modified, codified, replaced or reenacted, in whole or in part, and in effect
from time to time, including rules and regulations promulgated thereunder, and
reference to any section or other provision of any Applicable Law means that
provision of such Applicable Law from time to time in effect and constituting
the substantive amendment, modification, codification, replacement or
reenactment of such section or other provision;
(f)
“herein,” “hereby,” “hereunder,” “hereof,” “hereto” and words of similar
import shall be deemed references to this Agreement as a whole and not to any
particular article, section or other provision hereof or thereof;
(g)
“including” (and with correlative meaning “include”) means including
without limiting the generality of any description preceding such term;
(h)
the headings are for convenience of reference only and shall not affect
the construction or interpretation hereof or thereof;
(i)
with respect to the determination of any period of time, “from” means
“from and including” and “to” means “to but excluding;” and
(j)
references to documents, instruments or agreements shall be deemed to
refer as well to all addenda, exhibits, schedules or amendments thereto.
22
Section 10.11
Counterparts
. This Agreement may be executed in more than
one counterpart, each of which shall be deemed an original instrument and all of
which together shall be considered one and the same agreement, and shall become
effective when one or more such counterparts have been signed by each of the
Parties and delivered to the other Parties. A facsimile or electronic signature
is deemed an original signature for all purposes under this Agreement.
Section 10.12
Assignment
. This Agreement shall be binding upon and
inure to the benefit of the Parties, and their respective successors and
permitted assigns;
provided
,
however
, that no Party may assign, delegate or
transfer (by merger, operation of law or otherwise) its respective rights or
delegate its respective obligations under this Agreement without the express
prior written consent of the other Party. Notwithstanding the foregoing, either
Party may assign its rights and obligations under this Agreement to any
Wholly-owned Subsidiary;
provided
,
however
, that each Party shall at all times remain
liable for the performance of its obligations under this Agreement by any such
Wholly-owned Subsidiary. Any attempted assignment or delegation in violation of
this Section 10.12 shall be void.
Section 10.13
Severability
. If any provision of this Agreement or the
application thereof to any Person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to Persons or
circumstances or in jurisdictions other than those as to which it has been held
invalid or unenforceable, shall remain in full force and effect and shall in no
way be affected, impaired or invalidated thereby, so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any Party. Upon such determination, the Parties shall
negotiate in good faith in an effort to agree upon such a suitable and equitable
provision to effect the original intent of the Parties.
Section 10.14
Specific Performance
. The Parties agree that the remedy at law for
any breach of this Agreement may be inadequate, and that, as between Vishay and
VPG, any Party by whom this Agreement is enforceable shall be entitled to
specific performance in addition to any other appropriate relief or remedy. Such
Party may, in its sole discretion, apply to a court of competent jurisdiction
for specific performance or injunctive or such other relief as such court may
deem just and proper in order to enforce this Agreement as between Vishay and
VPG, or prevent any violation hereof, and, to the extent permitted by Applicable
Law, as between Vishay and VPG, each Party waives any objection to the
imposition of such relief.
Section 10.15
Waiver of Jury Trial
. Subject to Section 10.9 and Section 10.14,
each of the Parties hereby waives to the fullest extent permitted by Applicable
Law any right it may have to a trial by jury with respect to any court
proceeding directly or indirectly arising out of and permitted under or in
connection with this agreement or the transactions contemplated by this
agreement. Each of the Parties hereby (a) certifies that no representative,
agent or attorney of any other Party has represented, expressly or otherwise,
that such other Party would not, in the event of litigation, seek to enforce the
foregoing waiver and (b) acknowledges that it has been induced to enter into
this agreement and the transactions contemplated by this agreement, as
applicable, by, among other things, the mutual waivers and certifications in
this Section 10.15.
23
Section 10.16
Consent to Jurisdiction
. Subject to the provisions of Section 10.9,
each of the Parties irrevocably submits to the jurisdiction of the federal and
state courts located in Philadelphia, Pennsylvania and the City of New York,
Borough of Manhattan for the purposes of any suit, Action or other proceeding to
compel arbitration, for the enforcement of any arbitration award or for specific
performance or other equitable relief pursuant to Section 10.14. Each of the
Parties further agrees that service of process, summons or other document by
U.S. registered mail to such Parties address as provided in Section 10.4 shall
be effective service of process for any Action, suit or other proceeding with
respect to any matters for which it has submitted to jurisdiction pursuant to
this Section 10.16. Each of the Parties irrevocably waives any objection to
venue in the federal and state courts located in Philadelphia, Pennsylvania and
the City of New York, Borough of Manhattan of any Action, suit or proceeding
arising out of this Agreement, or the transactions contemplated hereby for which
it has submitted to jurisdiction pursuant to this Section 10.16, and waives any
claim that any such Action, suit or proceeding brought in any such court has
been brought in an inconvenient forum.
Section 10.17
Nonrecurring Costs and
Expenses
. Notwithstanding
anything herein to the contrary, any nonrecurring costs and expenses incurred by
the Parties to effect the transactions contemplated hereby which are not
allocated pursuant to the terms of this Agreement shall be the responsibility of
the Party which incurs such costs and expenses.
Section 10.18
Press Releases; Public
Announcements
. Neither
Party shall issue any release or make any other public announcement concerning
this Agreement or the transactions contemplated hereby without the prior written
approval of the other Party, which approval shall not be unreasonably withheld,
delayed or conditioned;
provided
,
however
, that either Party shall be permitted to make
any release or public announcement that in the opinion of its counsel it is
required to make by law or the rules of any national securities exchange of
which its securities are listed;
provided
further
that it has made efforts that are reasonable
in the circumstances to obtain the prior approval of the other Party.
Section 10.19
No Third-Party
Beneficiaries
. Except for
the indemnification rights under this Agreement of any Vishay Indemnified Party
or any VPG Indemnified Party in their respective capacities as such: (i) the
provisions of this Agreement are solely for the benefit of the Parties and their
respective successors and permitted assigns, and are not intended to confer upon
any Person, except the Parties and their respective successors and permitted
assigns, any rights or remedies hereunder; (ii) there are no third party
beneficiaries of this Agreement; and (iii) this Agreement shall not provide any
third party with any remedy, claim, liability, reimbursement, claim of action or
other right in excess of those existing without reference to this Agreement.
[SIGNATURE PAGE
FOLLOWS]
24
WHEREFORE
, the
Parties have signed this Agreement effective as of the date first set forth
above.
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VISHAY INTERTECHNOLOGY,
INC.
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By:
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/s/ Lior E.
Yahalomi
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Name:
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Dr. Lior E. Yahalomi
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Title:
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Executive Vice President and Chief
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Financial Officer
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VISHAY PRECISION GROUP,
INC.
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By:
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/s/ William M.
Clancy
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Name:
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William M. Clancy
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Title:
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Executive Vice President and Chief
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Financial Officer
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SCHEDULE A
Existing VPG Benefit Plans
Measurements Group, Inc.
Tax Deferred Savings Plan
SCHEDULE B
A.
Israel
Section A.1
Israel
. The following provisions apply to employees
resident in Israel or that otherwise are subject to Israeli law (an “Israeli
Employee”)
(a)
Transfer of Employees
. Prior to the Distribution Date, to the
extent not previously transferred, all Vishay Employees that are Israeli
Employees that are or as of the Distribution Date are expected to be, primarily
employed in the MGF Business, as well as any other Vishay Employees that are
Israeli Employees that Vishay and VPG determine should become VPG Employees,
including such employees who are on leave, shall be transferred to the VPG
Group. Each such employee is referred to as an “Israeli Transferring Employee.”
(b)
Consent to Transfer
. Vishay or the applicable member of the
Vishay Group shall obtain from each Israeli Transferring Employee a written
consent to such transfer of employment.
(c)
Transfer of Liabilities
. Each member of the VPG Group which employs
an Israeli Transferring Employee will assume all liabilities related to such
Israeli Transferring Employee, including all applicable Benefit Plans or
applicable accounts under such Benefit Plans, accrued sick and vacation days and
will credit each Israeli Transferring Employee with years of service with the
Vishay Group. Each member of the Vishay Group that is an employer of one or more
Israeli Transferring Employees shall enter into an agreement with the
corresponding member of the VPG Group to which such Israeli Transferring
Employee transferred employment, under which the member of the VPG Group agrees
to assume all liabilities relating to the Israeli Transferring Employee.
B.
Europe
Section B.1
The following
provisions apply to employees resident in the United Kingdom, France, Spain,
Germany or Austria or that otherwise are subject to applicable law of such
countries (a “European Employee”)
(a)
Transfer of Employees
. Prior to the Distribution Date, to the
extent not previously transferred, all Vishay Employees that are European
Employees that are or as of the Distribution Date are expected to be, primarily
employed in the MGF Business, as well as any other Vishay Employees that are
European Employees that Vishay and VPG determine should become VPG Employees
shall be transferred to the VPG Group. Each such employee is referred to as a
“European Transferring Employee.”
(b)
Benefits
. All European Transferring Employees will
receive the same benefits from the applicable member of the VPG Group as such
individual received from the applicable member of the Vishay Group prior to his
or her Transfer Date.
C.
Asia
Section C.1
The following
provisions apply to employees resident in the Japan, Taiwan, China or Singapore
that otherwise are subject to applicable law of such countries (an “Asian
Employee”)
(a)
Transfer of Employees
. Prior to the Distribution Date, to the
extent not previously transferred, all Vishay Employees that are Asian Employees
that are or as of the Distribution Date are expected to be, primarily employed
in the MGF Business, as well as any other Vishay Employees that are Asian
Employees that Vishay and VPG determine should become VPG Employees shall be
transferred to the VPG Group. Each such employee is referred to as a “Asian
Transferring Employee.”
(b)
Leased Employees
. Prior to the Distribution Date, to the
extent not previously transferred, all Individuals are employed by an employment
agency and provide services to a member of the Vishay Group and who (i) would be
Asian Employees were they directly employed by the entity to which they provide
services and (ii) are or as of the Distribution Date are expected to be,
primarily providing services to the MGF Business, or (iii) whom Vishay and VPG
determine should provide services to the VPG Group, shall be referred to as
“Asian Leased Employees.” Each Asian Leased Employee, the applicable member of
the Vishay Group, the applicable member of the VPG Group and VPG shall enter
into an agreement under which the Asian Leased Employee will continue to be
employed by the employment agency, shall provide services to the VPG Group.
(c)
General
. Except as set forth above, all Asian
Employees are employed by an entity that will be a member of the VPG Group.
2